Itxa/6799/2010 Of The Commissioner Of Income Tax-3 Mumbai v. Birla Yamaha Ltd

itxa6799-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6799 OF 2010 The Commissioner of Income Tax-3, Mumbai ..Appellant. V/s. Birla Yamaha Ltd. ..Respondent. Ms. Vimal Gupta, senior Advocate for the appellant. Ms,. Aarti Vissanji with S.J. Mehta for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 9TH OCTOBER, 2012 P.C. :- 1.Two questions of law raised by the revenue in this appeal read thus :- (A)Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in allowing as a deduction the amount of Rs.3.60 crores payable by the assessee company to Yamaha Motor Company, Japan, in terms of the agreement dated 27/1/1998 as the licence fee for technical know-how required to produce a new model of generators even though the assessee company could not produce any document before the assessing officer in which the date of actual production had been confirmed in writing ?law, the Tribunal was right in allowing as a deduction the amount of Rs.3.60 crores payable by the assessee company to Yamaha Motor Company, Japan, in terms of the agreement dated 27/1/1998 as the licence fee for technical know-how required to produce a new model of generators even though the assessee company could not produce any document before the assessing officer in which the date of actual production had been confirmed in writing ? itxa6799-10 (B)Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in allowing depreciation of Rs.14,33,459/- claimed by the assessee company on exchange rate fluctuation of Rs.57,41,836/- capitalized during the year under the head plant & machinery ?law, the Tribunal was justified in allowing depreciation of Rs.14,33,459/- claimed by the assessee company on exchange rate fluctuation of Rs.57,41,836/- capitalized during the year under the head plant & machinery ? 2.The assessment year involved herein is AY 1998-99. 3.As regards the first question is concerned, the Tribunal based on the RG-1 and RT-2 returns maintained under the Central Excise Act has come to the conclusion that the assessee had commenced production in the assessment year in question. The decision of the Tribunal is based on finding of facts. Hence the first question cannot be entertained. 4.As regards the second question is concerned, the Tribunal has allowed the claim of the assessee by following its decision in the assessee's own case for the assessment years 1994-95 and 1995-96 and also the judgment of this Court in the case if Padamjee Pulp and Paper Mills Ltd. V/s. CIT reported in (1994) 210 ITR 97 (Bom). In this view of the matter, the second question cannot be entertained. 5.The appeal is accordingly dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)