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Fresca Fine Dining Pvt. Ltd. (Now merged with Onestar Mercantile Company Pvt. Ltd._,Peninsula Spenta, 2nd Floor,Mathuradas Mill Compound,Senapati Bapat Marg, Lower Parel,Mumbai 400 013. Vs. The Income Tax Officer 5(1)(4), Mumbai.
July, 02nd 2012
                                                            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




                                            Page 1 of 3
                                                          Fresca Fine Dining P. Ltd.
                                                        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





                                         Page 2 of 3
                                                         Fresca Fine Dining P. Ltd.
                                                       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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