M/S.b.d.p.s. Software Limited v. The Deputy Commissioner Of Income Tax,Circle 6(1), Mumbai And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2638 OF 2009 M/s.B.D.P.S. Software Limited ..Appellant. Versus The Deputy Commissioner of Income Tax,Circle 6(1), Mumbai and others..Respondents. Mr.Subhash Shetty, Amicus Curiae.Mr.Suresh Kumar i/by Mr.Vimal Gupta for the respondents.Mr.Ramesh Thadani, Director of Appellant is present in Court. CORAM : J.P. Devadhar &K.K. Tated, JJ. P.C. : DATE : 13[th] October 2011 1.Since the advocate for the appellant has consistently remained absent on several occasions, we had asked the representative of the appellant, Mr.Thadani who has been regularly taking adjournment to make alternate arrangements. On the last occasion, the said representative expressed the inability of the appellant to engage any other advocate to argue the case on behalf of the appellant. In these circumstances, we requested Mr.Subhash Shetty to assist the Court as amicus curiae, which he readily agreed. Accordingly, the matter was adjourned so as to enable Mr.Shetty to go through the file and take necessary instructions from the representative of the assessee. 2.Today, we have heard Mr.Shetty for the appellant and Mr.Suresh Kumar for the Revenue. The appeal is admitted on the following substantial question of law. “Whether the Income Tax Appellate Tribunal was right in law in confirming the addition of Rs.3,25,90,657/- on account of depreciation disallowed, Rs.19,64,652/- on account of dis-allowance of advertisement expenses and Rs.11,10,456/- on account of dis-allowance of late payment of provident fund ?” 3.By consent, the matter is taken up for final hearing. The assessment year involved herein is AY 2002-2003. 4.Counsel on both the sides state that as regards addition of Rs.3,25,90,657/- is concerned, similar question raised by the assessee in Income Tax Appeal No.2639 of 2009 relating to assessment year 2001-2002 has been answered against the assessee. Accordingly, the decision of the Income Tax Appellate Tribunal in confirming the addition of Rs.3,25,90,657/- on account of disallowed depreciation cannot be faulted. 5.As regards the addition of Rs.11,10,456/- on account of late payment of provident fund is concerned, counsel on both sides state that similar question raised by the assessee in the assessment year 2001-2002, being Income Tax Appeal No.2639 of 2009 has been answered in favour of the assessee. Accordingly, for the reasons stated in our order in Tax Appeal No.2639 of 2009, the addition of Rs.11,10,456/- made on account of late 6.As regards the dis-allowance of advertisement expenses amounting to Rs.19,64,652/- is concerned, the finding of fact recorded by the Income Tax Appellate Tribunal is that during the course of survey, the assessee was asked to produce the bills, vouchers and other supporting documents regarding advertisement expenses, however, the same were not produced by the assessee. Even before us no material is produced to establish the advertisement expenses were actually incurred by the assessee. Hence, the decision of the Income Tax Appellate Tribunal in confirming the addition of Rs.19,64,652/- cannot be faulted. 7.In the result, the appeal is allowed partially by answering the question in favour of the assessee insofar as it relates to the addition on account of late payment of provident fund dues. Rest of the questions raised in the appeal are answered in favour of the Revenue and against the assessee. 8. The appeal is accordingly disposed off with no order as to costs. 9.Before concluding, we place on record our appreciation of the assistance rendered to the Court by Shri Subhash Shetty as amicus curiae. (K.K. Tated, J.) (J.P. Devadhar, J.)