M/s. TATA SECURITIES LTD., MUMBAI v. DCIT - 4(2), MUMBAI

ITA 3071/MUM/2008 | 1999-2000
Pronouncement Date: 28-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 307119914 RSA 2008
Bench Mumbai
Appeal Number ITA 3071/MUM/2008
Duration Of Justice 1 year(s) 8 month(s) 22 day(s)
Appellant M/s. TATA SECURITIES LTD., MUMBAI
Respondent DCIT - 4(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 28-01-2010
Date Of Final Hearing 11-12-2009
Next Hearing Date 11-12-2009
Assessment Year 1999-2000
Appeal Filed On 06-05-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI V.DURGA RAO JUDICIAL MEMBER. ITA NO.3071/MUM/2008: ASST.YEAR 1999-2000 M/S.TATA SECURITIES LIMITED C/O.KALYANIWALLA & MISTRY KALPATARU HERITAGE 5 TH FLOOR 127 MAHATMA GANDHI ROAD FORT MUMBAI 400 001. PA NO.AAACT2150R. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. (APPELLANT) VS. (RESPONDENT) ITA NO.2903/MUM/2008: ASST.YEAR 1999-2000 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. M/S.TATA SECURITIES LIMITED C/O.KALYANIWALLA & MISTRY KALPATARU HERITAGE 5 TH FLOOR 127 MAHATMA GANDHI ROAD FORT MUMBAI 400 001. (APPELLANT) VS. (RESPONDENT) CO NO.151/MUM/2008: ASST.YEAR 1999-2000 M/S.TATA SECURITIES LIMITED C/O.KALYANIWALLA & MISTRY KALPATARU HERITAGE 5 TH FLOOR 127 MAHATMA GANDHI ROAD FORT MUMBAI 400 001. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. (CROSS OBJECTOR) VS. (RESPONDENT) REVENUE BY : SHRI KESHAV SAXENA ASSESSEE BY : S/SHRI M.M.GOLWALA & AKRAM KHAN O R D E R. PER J.SUDHAKAR REDDY AM : THESE TWO CROSS APPEALS HAD BEEN DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV DATED 11.2. 2008 FOR ASSESSMENT YEAR 1999-2000. THE CROSS OBJECTION IS F ILED BY THE ASSESSEE. 2 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A CO MPANY AND IS ENGAGED IN THE BUSINESS OF SHARE AND STOCK BROKING AND SHAR E TRADING. THE ASSESSEE-COMPANY ORIGINALLY FILED ITS RETURN OF INC OME FOR THE ASSESSMENT YEAR 1999-2000 ON 31.12.1999 DECLARING TOTAL INCOME AT RS.3 27 44 310. THE RETURN WAS DULLY PROCESSED U/S.143(1)(A) WITHOU T ANY ADJUSTMENT. SUBSEQUENTLY THE ASSESSEE FILED REVISED RETURN ON 2 7.03.2001 DECLARING TOTAL INCOME AT RS.3 12 75 560. IN THIS REVISED RET URN THE ASSESSEE CLAIMED DEPRECIATION ON BSE MEMBERSHIP CARD OF RS.14 68 750 THE SAME WAS NOT CLAIMED IN THE ORIGINAL RETURN OF INCOME. THE ASSES SING OFFICER ISSUED NOTICE U/S.148 OF THE INCOME-TAX ACT 1961 ON 10.03 .2006 AFTER RECORDING REASONS THEREOF. IN RESPONSE TO THE NOTICE THE AUT HORISED REPRESENTATIVE OF THE ASSESSEE REQUESTED THAT THE REVISED RETURN F ILED ON 27.03.2001 BE TREATED AS RETURN FILED PURSUANT TO THE NOTICE ISSU ED U/S.148. SUBSEQUENTLY THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY D ISALLOWING THE CLAIM OF DEPRECIATION ON STOCK EXCHANGE CARD AND ALSO MAK ING DISALLOWANCES ON ACCOUNT OF SOFTWARE EXPENSES BUSINESS PROMOTION EX PENSES AND AMORTIZATION OF INVESTMENTS. AGGRIEVED THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE FI RST APPELLATE AUTHORITY GRANTED PART RELIEF. AGGRIEVED BOTH THE ASSESSEE A S WELL AS THE REVENUE FILED CROSS APPEALS. THE ASSESSEE ALSO FILED CROSS OBJECTION INTER ALIA CHALLENGING ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER. 3. WE WILL FIRST TAKE UP THE ASSESSEES APPEAL IN I TA NO.3071/MUM/2008. 4. THE GROUNDS OF APPEAL READ AS FOLLOWS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN UPHOLDING THE REOPENING OF THE ASSESSMENT WHEN THE JURISDICTIONAL CONDITIONS PRESCRIBED U/S.147 WERE N OT SATISFIED. 3 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN HOLDING THAT THE ASSESSING OFFICER DID HAV E REASONS TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT FOR THE ASSESSMENT YEAR IN QUEST ION. 3. THE APPELLANT SUBMITS HAVING REGARD TO THE REC ORDED REASONS THAT THE ASSESSING OFFICER COULD NOT HAVE HAD REASONS TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.2 85 000 /- OUT OF SOFTWARE EXPENSES. THE APPELLANT SUBMITS THAT THE A SSESSING OFFICER BE DIRECTED TO ALLOW THE SAID EXPENDITURE A S A BUSINESS LOSS. WITHOUT PREJUDICE THE ASSESSING OFF ICER BE DIRECTED TO ALLOW DEPRECIATION ON THE SAME. 5. MR.M.M.GOLWALA THE LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT IN THE REASONS RECORDED FOR REOPENING THE ASS ESSING OFFICER CAME TO THE CONCLUSION THAT THERE IS A REASON TO BELIEVE TH AT THE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AS THE DEPRECIATION O N MEMBERSHIP CARD OF BOMBAY STOCK EXCHANGE IS NOT ALLOWABLE BECAUSE IN A NUMBER OF CASES THE CIT(A) CONFIRMED THE DISALLOWANCE OF DEPRECIATI ON. HE SUBMITTED THAT THE A.O. RELIED ON THE DECISIONS GIVEN BY THE CIT(A ) THOUGH AS ON THE DATE OF THE REOPENING THERE WERE A NUMBER OF DECIS IONS OF THE ITAT WHICH HAVE HELD THAT THE ASSESSEE IS ENTITLED TO DE PRECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. HE SUBMITTED THAT T HE JUDGEMENT IN THE CASE OF TECHNO SHARE & STOCK LIMITED WAS A SU BSEQUENT DECISION AND THUS THE REASONS CITED BY THE ASSESSING OFFICER DID NOT EXIST AS ON THE DATE OF REOPENING. HIS CASE IS THAT THE ASSESSING O FFICER CANNOT COME TO A CONCLUSION THAT INCOME HAS ESCAPED ASSESSMENT BY T AKING A VIEW THAT IT IS AGAINST THE PROPOSITION OF LAW LAID DOWN BY THE JUR ISDICTIONAL TRIBUNAL AS ON DATE OF RECORDING THE REASONS FOR RE-OPENING. TH US HE ARGUED THAT THE 4 REOPENING IS BAD IN LAW. COMING TO GROUND NO.4 HE SUBMITTED THAT THE FACTS ARE AT PAGE 19 OF THE PAPER BOOK AND THAT THE ASSESSEE HAS GIVEN AN INITIAL ADVANCE OF 30% FOR DEVELOPMENT OF SOFTWARE CREDENCE MIDAS PRIDE. HE POINTED OUT THAT FROM THE BILL ITSELF IT IS CLEAR THAT IT WAS ONLY AN ADVANCE OF 30% WHICH WAS PAID. THE SOFTWARE WAS FOR BACK OFFICE OPERATION OF THE PRIMARY DEALERSHIP DIVISION. AS TH E ASSESSEE WAS DISSATISFIED WITH THE SOFTWARE AS IT COULD NOT BE S ATISFACTORILY INTEGRATED WITH ITS EXISTING SYSTEM THE ASSESSEE WAS COMPELLE D TO SCRAP THIS SOFTWARE. THE ASSESSEE SUBMITTED THAT UNDER THESE F ACTS THIS EXPENDITURE IS A BUSINESS LOSS AND HAS TO BE ALLOWED AS SUCH. HE R ELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BRALCO METAL INDUSTRIES PVT. LTD. VS. CIT [(1994) 206 ITR 477 (BOM.)] FOR THE PROPOSITION THAT THE EXPRESSION FOR THE PURPOSE OF THE BUSINESS IS WID ER IN SCOPE THAN THE EXPRESSION FOR THE PURPOSE OF EARNING PROFITS. HE POINTED THAT IN THAT CASE THE MANAGING DIRECTOR HAD INCURRED SOME EXPEND ITURE ON FOREIGN TOUR WHICH DID NOT RESULT IN PURCHASE OF PLANT AND MACHINERY. IN SUCH CIRCUMSTANCES THE HONBLE HIGH COURT TOOK A VIEW TH AT THE EXPENDITURE SHOULD BE ALLOWED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE MR.KESHA V SEXENA ON THE OTHER HAND BY CONTROVERTING THE SUBMISSIONS MAD E ON BEHALF OF THE ASSESSEE THAT AS ON THE DATE OF REOPENING THE ASSES SMENT THE ASSESSEE WAS NOT ENTITLED TO DEPRECIATION ON MEMBERSHIP CARD OF BOMBAY STOCK EXCHANGE. HE SUBMITTED THAT ON THE DATE OF REOPENI NG THE DECISION OF THE TRIBUNAL IN THE CASE OF TECHNO SHARES & STOCKS LIMI TED THOUGH DELIVERED ON 4.1.2006 COULD NOT HAVE BEEN PUBLISHED BY 10 TH MARCH 2006 WHICH IS THE DATE OF REOPENING. HE SUBMITTED THAT THE VIEW O F THE DEPARTMENT THAT THE ASSESSEE IS NOT ENTITLED TO THE DEPRECIATION ON MEMBERSHIP CARD OF BSE HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COUR T IN INCOME TAX 5 APPEAL (L) NO.971 OF 2006 BY JUDGEMENT DATED 11 TH SEPTEMBER 2009. ON THE ISSUE OF SOFTWARE EXPENSES HE SUBMITTED THAT T HE FIRST APPELLATE AUTHORITY HAS DEALT WITH THE ISSUE AT PARA 3.1 TO 3 .4 OF THE IMPUGNED ORDER AND POINTED OUT THAT THE ASSESSEE HAD NOT FURNISHED ANY DETAILS REGARDING THE SCRAPPING OF SOFTWARE BEING UNUSABLE. AS NO EVI DENCE IS FURNISHED BY THE ASSESSEE HE SUBMITTED THAT THE CLAIM WAS RIGHT LY REJECTED. 7. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSION S PERUSING THE RELEVANT MATERIAL ON RECORD AND THE ORDERS OF THE A UTHORITIES BELOW AND THE CASE LAW CITED. WE HOLD AS FOLLOWS. AS FAR AS THE ISSUE OF REOPENING IS CONCERNED WE OBSERVE THAT THE ORIGINAL RETURN WAS PROCESSED U/S. 143(1)(A) AND ON FILING OF THE REVISED RETURN ON 27-03-2001 A NOTICE U/S.148 WAS ISSUED BY THE ASSESSING OFFICER BY RECO RDING THAT HE HAS REASONS TO BELIEVE THAT THE INCOME CHARGEABLE TO TA X HAD ESCAPED ASSESSMENT. HE THEREAFTER DISALLOWED THE DEPRECIATI ON CLAIM ON A BSE MEMBERSHIP CARD. THIS REASON FOR REOPENING IN OUR CONSIDERED OPINION IS A BONAFIDE REASON FOR REOPENING DESPITE THE FACT T HAT THE TRIBUNAL HAS TAKEN THE DECISION IN THE CASE OF TECHNO SHARES & S TOCKS LIMITED THAT THE ASSESSEE IS ENTITLED TO DEPRECIATION ON BSE CARD. T HE FACT IS THAT THE REVENUE HAS NOT ACCEPTED THE ORDER AND CARRIED THE MATTER IN APPEAL. IN SUCH A SITUATION IT CANNOT BE SAID THAT THERE IS NO VALID REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. WHEN THE REVENU E IS AGITATING AN ISSUE BEFORE THE HIGH COURT THE REASONS FOR FILING THE APPEAL CAN ALSO BE A REASON FOR REOPENING OF AN ASSESSMENT. THE HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKING LTD. [291 ITR 500 (SC) ] HAS DEALT WITH THE ISSUE AND AS RIGHTLY POINTED OUT BY THE FIRST APPELLATE AUTHORITY IT HAD HELD THAT FORMATION OF BELIEF IS WITHIN THE SUBJECTIVE SATISFACTION OF THE A.O. THIS REASON CANNOT BE TRE ATED AS ONE WHICH A REASONABLE PERSON WOULD NOT TAKE. IN FACT THE JURIS DICTIONAL HIGH COURT 6 HAS UPHELD THE VIEW OF THE A.O. THE REOPENING WAS WITHIN 4 YEARS AND THERE IS NO ORDER PASSED U/S 143(3). THE REASON REC ORDED IS A POSSIBLE REASON AND CAN BE SAID TO BE A REASON WHICH CAN LEA D TO THE A.O. TO BELIEVE THAT INCOME HAS ESCAPED AMOUNT. THUS WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE AND HOLD THAT THE RE OPENING IS VALID IN LAW. 8. COMING TO GROUND NO.2 WHICH IS ON THE ISSUE OF A LLOWANCE OF EXPENDITURE INCURRED ON SOFTWARE EXPENSES WE FIND T HAT THE FACTS ARE THAT THE ASSESSEE HAD GIVEN CERTAIN ADVANCES I.E. 30% FO R DEVELOPMENT OF SOFTWARE CREDENCE MIDAS PRIDE. A COPY OF THE BILL IS PLACED IN THE PAPER BOOK AND A PERUSAL OF THIS COPY REFLECTS THAT THIS IS SIMPLY AN ADVANCE. THE UNDISPUTED FACT IS THAT THE ASSESSEE W AS NOT SATISFIED WITH THE SOFTWARE AS IT COULD NOT BE SATISFACTORILY INTE GRATED WITH ITS EXISTING SYSTEM. THE ASSESSEE STATES THAT THE DEVELOPER DID NOT DEVELOP NOR DID FURTHER WORK ON THE SOFTWARE AND THE ASSESSEE WAS COMPELLED TO SCRAP THE SOFTWARE. IN VIEW OF THESE FACTS WE ARE OF THE CON SIDERED OPINION THAT THE CLAIM OF THE ASSESSEE FOR BUSINESS LOSS HAD TO BE A LLOWED. THE ASSESSEE HAD SUBMITTED A BILL WHICH EVIDENCES NOT ONLY THE FACT THAT THE ASSESSEE HAD ENTRUSTED THE DEPLOYMENT OF SOFTWARE BUT ALSO THE FACT THAT ADVANCE PAYMENT HAD MADE. THE PURPOSE OF PAYMENT IS ALSO AV AILABLE ON RECORD. THEREFORE WE ARE UNABLE TO APPRECIATE THE STAND OF THE REVENUE THAT FURTHER EVIDENCES ARE REQUIRED. THE BILL CLEARLY ST ATES THAT IT IS AN ADVANCE PAYMENT OF 30% TOWARDS THE DEPLOYMENT OF SOFTWARE CREDENCE MIDAS PRIDE. THUS AS THE EXPENDITURE HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AND AS THE AMOUNT PAID IS LOSS IT IS A BUSINESS LOSS AND HENCE THE CLAIM OF THE ASSESSEE SHOULD BE ALLOWED. THIS GROUND IS THEREFORE ALLOWED. 9. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED. 7 10. NOW WE WILL TAKE UP THE REVENUES APPEAL IN ITA NO.2903/MUM/2008. 11. THE FIRST GROUND IN THE REVENUES APPEAL IS ON THE ISSUE WHETHER THE ASSESSEE IS ENTITLED TO DEPRECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. THE ISSUE IS NOW CONCLUDED IN FAVO UR OF THE REVENUE AND AGAINST THE ASSESSEE BY THE JUDGEMENT OF THE JU RISDICTIONAL HIGH COURT IN THE CASE OF TECHNO SHARES & STOCKS LIMITED IN IN COME TAX APPEAL (L) NO.971 OF 2006 WHICH WAS PRONOUNCED ON 11 TH SEPTEMBER 2009 WHEREIN THE HONBLE HIGH COURT HELD THAT THE ASSESS EE IS NOT ENTITLED TO DEPRECIATION ON BOMBAY STOCK EXCHANGE CARD. RESPECT FULLY FOLLOWING THE SAME WE ALLOW GROUND NO.1 OF THE REVENUES APP EAL. 12. GROUND NO.2 PERTAINS TO BUSINESS PROMOTION EXPE NDITURE. THE ASSESSEE IN THIS CASE SUBMITTED THAT THE BILL IN QU ESTION WAS RAISED BY THE PRESIDENT HOTEL IN THE NAME OF TATA FINANCE LIMITED AND NOT IN THE NAME OF THE ASSESSEE-COMPANY. IT WAS POINTED OUT THAT BO TH TATA FINANCE LIMITED WHICH IS A HOLDING COMPANY AND THE ASSESSE E-COMPANY OPERATES FROM SAME PREMISES I.E. DUBASH HOUSE BELLARD ESTAT E MUMBAI AND BY OVERSIGHT THE PRESIDENT HOTEL RAISED THE BILL WRONG LY IN THE NAME OF TATA FINANCE LIMITED. THE BILL WAS ADDRESSED TO MR.KIRAN UMROOTKAR WHO IS THE DIRECTOR OF THE ASSESSEE-COMPANY AND HAD NO CON NECTION WITH TATA FINANCE LIMITED. THIS MISTAKE WAS LATER RECTIFIED B Y THE HOTEL. IN THE FIRST APPEAL THE FIRST APPELLATE AUTHORITY ALLOWED THE C LAIM OF THE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO ALLOW EXPENDITURE AMOUNTING TO RS.2 06 813. WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF THE CIT(A) THUS WE DISMISS THIS GROUND OF THE REVENUE. 8 13. GROUND NO.3 IS ON THE ISSUE WHETHER THE FIRST A PPELLATE AUTHORITY WAS RIGHT IN ALLOWING DIMINUTION IN THE VALUE OF IN VESTMENT OF RS.14 39 384. AFTER HEARING THE RIVAL CONTENTIONS W E FIND THAT THE ASSESSEE HAD PURCHASED 17% MTNL BONDS AT RS.106.50 PER BOND OF THE FACE VALUE OF RS.100 ON 29.5.1997 FOR THE TOTAL CONSIDERATION OF RS.2 46 01 500. THE BONDS WERE REDEEMED ON 29.4.1999 ON THE FACE VALUE OF RS.2.31 LAKHS. THE LOSS WAS CALCULATED AND CLAIMED AS BUSINESS LOS S. THE ASSESSING OFFICER DISALLOWED THE SAME. ON APPEAL THE FIRST A PPELLATE AUTHORITY OBSERVED THAT THE ASSESSEE HAD AS A CONSISTENT POL ICY FOR ALL THE PREVIOUS YEARS DISCLOSED PROFIT ON SALE OF INVESTMENT SECUR ITIES BONDS ETC. AS BUSINESS PROFIT AND THE ASSESSING OFFICER ALWAYS AS SESSED THE SAME TO TAX ON THAT BASIS. HE OBSERVED THAT VALUING THE ASSETS AT COST OR MARKET VALUE WHICHEVER IS LOWER IS A REGULAR METHOD OF ACCOUNTI NG FOLLOWED BY THE ASSESSEE IN ALL THE YEARS. THE ASSESSEE HAS NOT ATT EMPTED TO OFFER ANY GAINS AS LONG TERM CAPITAL GAINS IN ORDER TO AVAIL OF THE BENEFIT OF A LOWER RATE OF TAX. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF INVESTMENT LTD. VS. CIT [(1970) 77 ITR 533 (SC)] WHEREIN IT IS HELD THAT WHETHER THE METHOD OF ACCO UNTING IS ADOPTED BY THE TRADER CONSISTENTLY AND REGULARLY T HE SAME CANNOT BE DISCARDED BY THE DEPARTMENTAL AUTHORITIES ON THE VI EW THAT HE SHOULD HAVE ADOPTED A DIFFERENT METHOD OF KEEPING ACCOUNT OR OF VALUATION. IT IS ALSO OBSERVED THAT THE VALUATION OF STOCK AT COST IS ONE OF THE RECOGNIZED METHODS. IT IS ALSO HELD THAT THE DESCRIPTION OF ST OCK IN THE BALANCE SHEET AS INVESTMENT IS NOT DECISIVE. TAKING THIS CASE L AW INTO CONSIDERATION AND ALSO OF THE FACT THAT THE ASSESSING OFFICER FAI LED TO REPLY TO THE REPEATED LETTERS WRITTEN BY THE CIT(A) TO FURNISH C OMMENTS ON FURTHER EVIDENCES PRODUCED BY THE ASSESSEE THE FIRST APPEL LATE AUTHORITY VIDE PARA 5.7 OF THE IMPUGNED ORDER ALLOWED THE CLAIM OF THE ASSESSEE. WE FIND NO INFIRMITY IN THE SAID ORDER OF THE CIT(A) AS THE AS SESSEE IS OFFERING THE 9 PROFIT ON THIS INVESTMENT CONSISTENTLY AS BUSINESS INCOME. ON A SIMILAR REASON THE LOSSES HAVE TO BE ALLOWED AS BUSINESS LO SS. WE THEREFORE UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY. THIS GROUND OF THE REVENUE IS DISMISSED. 14. IN THE RESULT THE REVENUES APPEAL IS PARTLY A LLOWED. C.O. NO.151/MUM/2008 : BY THE ASSESSEE : 15. IN THIS CROSS OBJECTION THE ASSESSEE SUBMITS T HAT IN THE EVENT REOPENING BEING HELD AS VALID THE ASSESSING OFFICE R HAS NO POWER TO MAKE FISHING INQUIRY TO PROBE IF ANY OTHER INCOME H AS ESCAPED OR NOT AS HELD BY THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF AMRINDER SINGH DHIMAN VS. ITO [(2004) 269 ITR 378 (P&H)] AND THE HONBLE DELHI TRIBUNAL IN THE CASE OF POONAM RANI SINGH VS. DCIT [(2005) 97 ITD 390 (DELHI)] . FOR THESE REASONS HE SUBMITS THAT THE DISALLOWAN CES ON ACCOUNT OF BUSINESS PROMOTION AMORTIZATION OF INVESTMENTS AND SOFTWARE EXPENSES SHOULD NEVER HAVE BEEN MADE. 16. AS WE HAVE DEALT WITH ALL THESE THREE ITEMS ON MERITS AND HAVE ALLOWED THE CLAIM OF THE ASSESSEE THAT NO DISALLOWA NCE CAN BE MADE ON THE SAME WE ARE OF THE CONSIDERED OPINION THAT TH E ISSUE RAISED IN THE CROSS OBJECTION NEED NOT BE ADJUDICATED AS THE ISSU E WOULD NOW BE AN ACADEMIC ISSUE. 17. IN THE RESULT THE CROSS OBJECTION IS DISPOSED OFF AS SUCH. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY 2010. SD/- SD/- ( V.DURGA RAO ) ( J.SUDHAKAR REDDY ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 28 TH JANUARY 2010. DEVDAS* 10 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - IV MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.