The Commissioner Of Income Tax-4Mumbai v. M/S. Indosuez W.i. Carrsecurities (India) Pvt. Ltd.mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1 OF 2011 The Commissioner of Income Tax-4Mumbai..Appellant versus M/s. Indosuez W.I. CarrSecurities (India) Pvt. Ltd.Mumbai ..Respondent -------- Mr. Vimal Gupta, Senior Counsel i/b Ms. Padma Divakar for the Appellant.None for the Respondent. ............. CORAM : J.P. DEVADHAR & M.S.SANKLECHA, JJ. DATE : 16[th] October, 2012 P.C. :1Two questions of law raised by the Revenue in this appeal read thus: “A) Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in allowing the writing off by the Assessee Company of 'Advance Rent and Deposits' pertaining to Leave and LicensePremisesamountingto Rs.22,18,750/- as a business loss, even though such loss was clearly capital in nature? B) Whether on the facts and in the circumstance of the case and in law the Tribunal was justified in deleting the addition of Rs.25,12,649/- made by the Assessing Officer in respect of Software and Data Processing Charges, which expenditure is clearly capital in nature?” 2As regards the first question is concerned the Tribunal while upholding the order of the CIT(A) has recorded a finding of fact in para 3.1 of its order that the advance rent and deposits were made for taking the premises on lease which was for the purpose of business. Since the assessee had terminated the lease before its expiry, the loss of advance rent paid on account of termination constituted business loss and the Tribunal was justified in allowing such business loss. Accordingly, the first question cannot be entertained. 3As regard the second question is concerned, since the ITAT has restored the matter to the file of the Assessing Officer to decide the issue afresh, in the light of the Special Bench decision of the Tribunal in the case of Amway India Enterprises reported in 110 ITD 112, we are not inclined to entertain this question. However, the Assessing Officer while giving effect to the order of the ITAT shall take into consideration other Judgment on the issue which is brought to the notice of the Assessing Officer. 4The appeal is therefore dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P.DEVADHAR, J.)