Fresca Fine Dining P. Ltd.
I.T.A. No. 7160/Mum/2010
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH `F', MUMBAI
BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER &
SHRI VIVEK VARMA, JUDICIAL MEMBER
I.T.A. NO. 7160/Mum/2010
Assessment Year : 2007-08
Fresca Fine Dining Pvt. Ltd. (Now Vs. The Income Tax Officer 5(1)(4),
merged with Onestar Mercantile Mumbai.
Company Pvt. Ltd._,
Peninsula Spenta, 2nd Floor,
Mathuradas Mill Compound,
Senapati Bapat Marg, Lower Parel,
Mumbai 400 013.
PAN: AAACF 3506 D
(Appellant) (Respondent)
Appellant by : Mr. M. D. Inamdar.
Respondent by : Mr. O. K. Kant. (Sr. A.R.)
Date of Hearing: 18-06-2012.
Date of Pronouncement: 29-06-2012.
ORDER
Per VIVEK VARMA, JM:
The appeal is filed by the assessee against the order of the
CIT(A) 9, Mumbai, dated 18-08-2010.
2. The solitary ground is against the disallowance of claim of
depreciation of Rs. 15,06,239/-.
3. The CIT(A) disallowed the claim of depreciation by following the
order(s) of his predecessors from assessment years 2001-02 upto
2006-07.
4. The Authorised Representative pointed out that the co-ordinate
Bench in the assessee's own cases has allowed the claim of
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I.T.A. No. 7160/Mum/2010
depreciation and since the issue now is covered in all the preceding
years, the claim should be allowed in the current year as well.
5. We have gone through the decisions of the co-ordinate
Benches, which are as follows:
Asst. Years I.T.As. No. Bench Order dated
2001-02 5210/Mum/05 F 11-03-2011
2002-03 1060/Mum/07 F 11-03-2011
2003-04 2002/Mum/08 F 11-03-2011
2004-05 691/Mum09 F 11-03-2011
2005-06 4769/Mum/08 C 20-05-2011
2006-07 3253/Mum/10 F 29-03-2011
6. We find that the issue is now covered by all these decisions and
the latest decision in this tally is in I.T.A. No. 4759/Mum/08, dated 20-
05-2011, for assessment year 2004-05, wherein the coordinate Bench
held as under:
"4. Ground Nos. I and II are against the sustenance of disallowance of
depreciation.
5. The brief facts on the above issue are that it was observed by the AO that
the assessee has claimed depreciation on the assets purchased from M/s
Piramal Holdings Ltd. in earlier years. It is seen that in the earlier years i.e.
assessment year 2001-02 onwards, the depreciation claimed on these assets
have been disallowed holding that the transfer of assets in the hands of the
assessee-company was not valid which has also been upheld by the learned
Commissioner of Income Tax (A). Following the same view, the AO
disallowed the depreciation in the year under consideration also. On appeal,
the learned Commissioner of Income Tax (A) also following the appellate
order for the assessment years 2001-02 and 2002-03 upheld the disallowance
made by the AO.
6. At the time of hearing, the learned counsel for the assessee submits that the
issue stands covered in favour of the assessee and against the Revenue by the
decision of the Tribunal in assessee's own case in M/s Fresca Fine Dining
Pvt. Ltd. Vs DCIT, in ITA Nos. 5210/Mum/2005 (AY-2001-02),
1060/Mum/2007 (AY-2002-03), 2002/Mum/2008 (AY-2003-04) and
691/Mum/2009 (AY-2005-06), order dated 11.3.2011, wherein it has been
held that the assessee is entitled to depreciation. He also placed on record a
copy of the said order of the Tribunal.
7. On the other hand, the learned DR supports the orders of the AO and the
learned Commissioner of Income Tax (A).
8. Having carefully heard the submissions of the rival parties and perusing
the material available on record, we find that there is no dispute that the
depreciation was disallowed by the AO and confirmed by the learned
Commissioner of Income Tax (A) on the ground that in the earlier years it
was disallowed holding that the transfer of assets in the hands of the
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I.T.A. No. 7160/Mum/2010
company was not valid. However, the Tribunal in the assessee's own case
(supra) at page 10 has held "11......In our opinion, there was a valid transfer
of assets by Piramal Holdings Ltd., to the assessee company as on 31.3.2001
and since the assessee had become the owner of the said assets on that day
and the same were used for its business of running the restaurant, it was
entitled for depreciation as claimed.....". In the absence of any distinguishing
features brought on record by the Revenue, we respectfully following the
order of the Tribunal hold that the assessee is entitled to the depreciation on
the assets purchased from M/s Piramal Holdings Ltd. The ground Nos. I and
II taken by the assessee are therefore allowed".
7. Respectfully following the decisions, we hold that the assessee
is entitled to the depreciation in the current year, on the assets
purchased from Piramal Holdings Ltd. We, therefore, set aside the
order of CIT(A) and direct the AO to allow the depreciation as claimed.
8. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open Court on this day of 29/06/2012.
Sd/- Sd/-
(B.RAMAKOTAIAH) (VIVEK VARMA)
ACCOUNTNAT MEMBER JUDICIAL MEMBER
Mumbai: 29/06/2012.
P/-*
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