The Commissioner Of Income Tax v. M/S. Diners Club India Ltd

((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 450 OF 2001 The Commissioner of Income Tax ... Appellant Versus M/s. Diners Club India Ltd. ... Respondent Mr.P.S. Sahadevan for the Appellant. Mr. P.J. Pardiwala i/by Matubhai Jamieteram for the Respondent. CORAM: F.I. CORAM: F.I.REBELLO&R.S. MOHITE, JJ.DATED: JANUARY 15, 2008 R.S. MOHITE, JJ. DATED: JANUARY 15, 2008 P.C. P.C. . The revenue has preferred this appeal on the following questions : "1. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in confirming the orders of CIT (A) and holding that the affiliation fee and entrance fee received by the assessee are capital receipts even though the said amounts being received for rendering services were liable to be treated as trading receipts? ((-2-)) 2. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that interest income form part of income, from profits and gains of business or profession for deduction u/s. 32AB, even though deduction u/s. 32AB is available only on eligible business income and not income from other sources?" . In so far as the first question is concerned, we find that similar issue had arisen before this court in C.I.T. Vs.Diners Business Services Pvt. Ltd. 263 ITR 1. The learned Bench of this court considering the earlier judgment of this court in CIT Vs. WIAA Club Limited 1982 136 ITR 569 (Bom) has held that the entrance fees paid to the club was in order to acquire the right to avail of services and facilities extended by the club and as the amount was non refundable. The fees constitute receipt in the capital field. . In our opinion, this judgment squarely covers the first question as framed by the revenue. Considering the judgment referred to the Tribunal was right in taking the view it has taken. . In so far as question No. 2 is concerned, the ((-3-)) learned tribunal relied on its decision in I.T.A. No. 9184/Bom/1990, Assessment Year 1987-1988 decided on November, 1988. The Tribunal noted that hte Appeal against tht order by Revenue, I.T. REf. No. 140/2000 was dimised on 19th June, 2000. In our opinion, considering the findings recorded by the Tribunal in its judgmnet, the the question as framed would not arise. . Consequently, the appeal dismissed. No order as to costs. (R.S. MOHITE, J.) (R.S. MOHITE, J.)(F.I.REBELLO, J.) (R.S. MOHITE, J.) (F.I.REBELLO, J.)