The Commissioner Of Income Tax- Central Iii v. Franklin Templetion Asset Management(India) Pvt. Ltd

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 2615 OF 2011 The Commissioner of Income Tax- Central III … Appellant v/s Franklin Templetion Asset Management(India) Pvt. Ltd. … Respondent Mr.Suresh Kumar for the appellant. Mr.F.V. Irani with Atul K. Jasani for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 22ND APRIL, 2014 P. C. : 1Heard Mr.Suresh Kumar appearing on behalf of the revenue and Mr.Irani appearing on behalf of the assessee. 2The two questions projected as substantial questions of law read as under :- (a) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal, in law, was justified in upholding the order of the Commissioner of Income Tax (Appeals) in not sustaining the addition made by the Assessing Officer being the difference between the amount of investment advisory fees computed at the maximum rates specified in Regulation 52(2) of the Securities and Exchange Board of India (Mutual Fund) Regulation, 1996 (SEBI Regulations) ? (b) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in holding that the item in the nature of cable routers, IP Phones, ISDN devices, switches, Ethernet Card, RIC Connectors, storage tapes, part jack panel, cables and data terminal equipment would form part of block of computers and therefore be eligible for depreciation at the rate of 60% whereas all these items are to be categorized as peripheral devices to be treated as plants and machinery eligible for depreciation at the rate of 25% ? 3As far as the question (a) above is concerned, in all fairness parties conceded that in the case of very assesssee the said question was considered by a Division Bench of this Court in Income Tax Appeal No.1043 of 2010, decided on 12[th] September, 2011. The wording of the question for the relevant assessment year before the Division Bench and for the current assessment year before us is identical. The Division Bench in considering this question held that the Tribunal's view cannot be said to be suffering from any perversity or error of law apparent on the face of the record. The findings rendered by the Division Bench in the case of the very assessee in paragraph 4 would therefore conclude the issue in favour of the assessee and against the revenue. 4We respectfully follow this view taken by the Division Bench and in the case of the very assessee, so also, in relation to the identical controversy. The revenue has been unable to point out anything to the contrary or order of the superior Court reversing this judgment and order of the Division Bench. Present appeal, therefore, does not raise any question, leave aside, any substantial question of law. 5As far as question (b) above is concerned, the Tribunal categorically held that, as a matter of fact the very issue was raised in the case of the assessee before us. That was raised in the assessment year 2005-2006 and a particular view was taken by the Commissioner of Income Tax (Appeals) which was not questioned by the revenue. Apart therefrom, what the Tribunal has found in the order under challenge is that all the items that are referred to in the order of the Assessing Officer are used along with the computer system of the assessee company. The argument that a particular component is taken in use independent of the computer and hence depreciation should not be granted at a higher rate, has not been accepted in the light of the peculiar facts and circumstances. The Tribunal on fact found that the peripherals are used in the computer. The components are ancillary and used along with the computer. It is, in these circumstances, the Tribunal upheld the order of the Commissioner of Income Tax (Appeals). the revenue. Apart therefrom, what the Tribunal has found in the order under challenge is that all the items that are referred to in the order of the Assessing Officer are used along with the computer system of the assessee company. The argument that a particular component is taken in use independent of the computer and hence depreciation should not be granted at a higher rate, has not been accepted in the light of the peculiar facts and circumstances. The Tribunal on fact found that the peripherals are used in the computer. The components are ancillary and used along with the computer. It is, in these circumstances, the Tribunal upheld the order of the Commissioner of Income Tax (Appeals). 6The view taken by the Tribunal is possible in the given facts and circumstances and peculiar to the assessee. In the circumstances, when the findings of fact are not vitiated by a perversity, no substantial question of law is raised even with regard to this ground (b). The appeal is, therefore, devoid of any merits and is dismissed. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)