Commissioner of Income Tax-V v. New Delhi Television Ltd

1. Allowed subjectto alljust exemptions. ITA 366&367/2016 Page 1 of[4] 2016:DHC:8491-DB 7^ CM APPL No.23808/2016(delav^ in ITA 366/2016 CM APPL No.23810/2016 Tdelav^ in ITA 367/2016

2. There is a delay of592 days in re-filing the appeals. The explanation offered is the standard one regarding the practice directions issued by this Courtfor e-filing ofthe appeals.As has already been observed by this Court in several orders,the practice directions were issued after consultation with the bar and after giving sufficienttime for the bar to get acquainted with the requirement ofe-filing. Additionally,the Court has also provided scanning machines at the filing counter so that no difficulty is caused to the bar for switching over to the system ofe-filing. In any event,the delay ofover one and a half year on this ground is wholly unacceptable. Consequently, the Courtis notpersuaded to condone the extraordinary delay of592 days in re filing the appeals.

3. The applications bearing CM Application Nos. 23808/2016 & 23810/2016 for condonation ofthe delay of592days in re-filing the appeals are dismissed. ITA 366/2016&ITA 367/2016

4. Nevertheless the appeals have also been examined on merits.

5. These appeals by the Revenue are directed against the common order dated 20th December 2013 in ITA Nos. 852 and 942/Del/2012 for Assessment Year(AY)2006-07.

6. The issue in ITA No.366/2016 concerns the disallowance by the ITA 366&367/2016 Page2of[4] Assessing Officer(AO)ofthe expenses incurred by the Assessee on account ofthe Employees Stock Option Plan('ESOP').The ITAT reversed the AO and deleted the disallowance in lightofthe decision ofthe Special Bench of theITAT(Bangalore)inBiocon Limited v.DCIT(LTU),Bangalore(2013) 35taxmann.com 335(Bangalore-Trib.)(SB).

7. As far as this issue is concerned,it is pointed out by the learned counsel for the Assessee that the issue stands covered in favour ofthe Assessee and against the Revenue by the order ofthis Court dated IS**" August,2015 in ITA No.107/2015 (Commissioner ofIncome Tax v. Lemon Tree Hotels). The Courthad affirmed the order oftheITAT deciding the issue in favour of the Assessee in the said case where the addition made by the AO by way of disallowance of the expenses debited as cost of ESOP in profit and loss account was deleted by theITAT.

8. In the present case, the ITAT has by the impugned order restored the matter to the file ofthe AO for re-adjudication. The impugned order ofthe ITAT is consistent with what has been held by this Court in Commissioner ofIncome Tax v.Lemon Tree Hotels{supra). Consequently,no substantial question oflaw arises as far as this issue is concerned.

9. The second issue which pertains to ITA No.367/2016 is whether the software expenses are required to be treated as capital expenditure as held by the AO or revenue expenditure as pleaded by the Assessee and accepted by theITAT?

10. The ITAT has in the impugned order placed reliance on the decision of ITA 366&367/2016 3of[4] this Court in CIT v. Asahi India Safety Glass Ltd.(2011)245 CTR 529. The Revenue has made a reference to the Special Leave Petition(SLP)filed by the Revenue againstthe said order. Learned counsel for the Assessee has handed over a copy ofthe order dated 5^*^ July,2012 passed by the Supreme Court in CIT-I,New Delhi v. AsahiIndia Safety Glass Ltd., dismissing the Revenue's SLP filed againstthe aforementionedjudgment.

11. In that view ofthe matter,the impugned order ofthe ITAT on this issue does not give rise to any substantial question oflaw.

12. The appeals are accordingly dismissed both on account of delay in refiling the appeals as well as on merits.

S.MURALIDHAR,J NAJMIWAZIRI,J JULY 12,2016 b'nesh