1 itxal2239.06 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.2239 OF 2006 The Commissioner of Income Tax-V, Pune 411 044. ....Appellant Vs. Kinetic Motors Co.Ltd., Pune-411 012. ....Respondent. Mr. Vimal Gupta, advocate for appellant. Mr. S.N.Inamdar, advocate for respondent. CORAM:- J.P.DEVADHAR AND MRS.MRIDULA BHATKAR, JJ. DATED:- FEBRUARY 8, 2011. P.C. 1. By consent, the appeal is restored to file. 2. Following questions of law are framed by the Revenue in this appeal: “1. On the facts and circumstances of the case and in law the ITAT erred in allowing the payment of royalty paid to Honda Motors Co. Ltd. for technical knowhow. 2. On the facts and circumstances of the case, and in law the Hon’ble Tribunal erred in holding that excise duty and sales tax collected by the assessee to be excluded from the Total turnover for the purpose of computation of deduction u/s 80 HHC of the I.T.Act, 2 itxal2239.06 without appreciating the fact that the Hon. Supreme Court in the following cases:- (a) Chowringhee Sales Bureau Pvt.Ltd. 87 ITR 542, (b) Punjab Distilling Industries Ltd. 35 ITR 519, (c) Sinclair Muuray & Co. Pvt.Ltd. 97 ITR 615, (d) Bazpur Co-operative Sugar Factory Ltd. 172 ITR 321. and the Hon. Bombay High Court in the case of Hindustan Petroleum Corporation Ltd. [143 ITR 318] held that the amount of excise duty and/or sales tax collected by the assessee form part of the sale price and hence gets naturally included in the turnover. 3. On the facts and circumstances of the case, and in law the Hon’ble ITAT erred in allowing the depreciation @ 40% on trucks owned by the assessee Company, who is not in the business of running them on hire. 3.1 On the facts and circumstances of the case, and in law the Hon’ble ITAT ought to have followed the ratio of decision of Hon’ble Rajasthan High Court in the case of CIT Vs. Sardar Stones 215 ITR 350. 4. On the facts and circumstances of the case, and in law the Hon’ble ITAT erred in allowing the expenditure incurred on advertisement of 3rd death anniversary of the Chairman of the Company, which is purely personal in nature.” 3. As regards first question of law is concerned, Counsel for both sides state that similar question raised in the assessee’s own case being ITXA No. 1240 of 2000 has been dismissed by this Court on 2nd May, 2009. Hence, the first question cannot be entertained. 3 itxal2239.06 4. As regards second question is concerned, Counsel for the parties state that said question is answered against the Revenue by the decision of the Apex Court in the case of CIT v/s. Laxmi Machine Works reported in 290 ITR 663. Hence, this question also cannot be entertained. 5. As regards question Nos. 3 and 3.1 are concerned, Counsel for the parties state that similar question raised in the assessee’s own case being ITXAL No. 1169 of 2006 has been dismissed by us today. Hence, these questions cannot be entertained. 6. As regards question No.4 is concerned, Counsel for the parties state that similar question raised in the assessee’s own case being ITXAL No.1170 of 2006 has been dismissed by us today. In this view of the matter, fourth question cannot be entertained. 7. Accordingly, Appeal is dismissed. No order as to cost. (MRS.MRIDULA BHATKAR, J.) (J.P.DEVADHAR, J.)