1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.1490 OF 2009 The Commissioner of Income Tax – 4, Mumbai ...Appellant V/s. M/s.Wallfort Financial Services Limited ...Respondent INCOME TAX APPEAL (L) NO.1494 OF 2009 The Commissioner of Income Tax – 4, Mumbai ..Appellant. Versus M/s.Citigroup Global Markets India Limited ..Respondent. Mr.P.S. Sahadevan for the appellant. None for the respondent. CORAM : V.C. DAGA & J.P. DEVADHAR, JJ. DATE : 18TH SEPTEMBER 2009 P.C. : 1. In spite of service, nobody is appearing on behalf of the respondents – assessee. Office objections, if any are over-ruled. Registry is directed to register both the appeals. 2. Heard. Admit on the following substantial questions of law. a) Whether in the facts and circumstances of the case and in law the Tribunal was correct in holding that, the membership of Bombay Stock Exchange is a capital asset even though as per the decision of the Hon’ble Supreme Court in the case of Stock Exchange, Ahmedabad Vs. ACIT; & Bombay High Court in the case of The Stock 2 Exchange Bombay Vs. V.S. Kandalgaonkar ACIT and ohters; membership of the Stock Exchange is only a personal privilege granted by the Stock Exchange to the member ? b) Whether in the facts and circumstances of the case and in law, the Tribunal failed to consider that the basic ingredients of ownership are not present in the BSE Membership Card and therefore the assessee cannot claim to be its owner for the purpose of claiming depreciation on the same ? c) Whether in the facts and circumstances of the case and in law, the Tribunal was correct in holding that the BSE Card is an intangible asset wthin the definition of Section 32 (1)(ii) of the Income Tax Act, when the “personal permission” granted by the BSE is not a descendent of common ancestry or akin to know-how, copyrights, patents, trademarks, franchises in origin, nature and quality but far away from intangible assets mentioned in Section 32(1)(ii) of the Income Tax Act ? d) Whether in the facts and circumstances of the case and in law the Tribunal was correct in holding that the Membership Card of Bombay Stock Exchange is entitled to depreciation without considering whether it reallly suffers from diminution in its value ? 3. The above questions of law are squarely covered by the Division Bench Judgment of this Court in group of mattes, lead appeal being Income Tax Appeal (L) No.971 of 2006 (Commissioner of Income Tax – 4 V/s. M/s.Techno Shares & Stocks Limited) decided on 11 th September 2009 . For the reasons recorded therein, both the questions are answered in favour of the revenue and against the assessee. 4. The appeals are accordingly allowed with no order as to costs. (J.P. Devadhar, J.) (V.C. Daga, J.)