IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.342 OF 2009 INCOME TAX APPEAL NO.342 OF 2009 INCOME TAX APPEAL NO.342 OF 2009 The Commissioner of Income Tax ..Appellant. V/s. M/s.Mahindra Ugine Steel Co. Ltd. ..Respondent. Mr.J.S.Saluja for appellant. Mr.Arun Sathe, senior counsel with Kranti Sathe for respondent. CORAM : V.C.DAGA AND CORAM : V.C.DAGA AND CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 24TH APRIL, 2009. DATED : 24TH APRIL, 2009. DATED : 24TH APRIL, 2009. P.C. :- P.C. :- P.C. :- 1. Heard learned counsel for the revenue and the respondent. The appeals seeks to raise the following questions of law:- 1) Whether on the facts and in the circumstances of the case and in law, the I.T.A.T. is justified in restoring the issue of payment of Rs.4 crores to Mahindra & Mahindra Ltd. under a non complete convenant for examining whether the nature of payment is revenue or capital, especially when the Tribunal had already held that the said payment cannot be said to be on account of non competition meaning thereby that the said payment was for non business purpose and hence disallowable ? 2) Whether on the facts and in the circumstances of the case, the TAT is justified in law and in holding that premium payable of Rs.6,86,212/- on debenture is an allowable expenditure even though the liability to pay such premium arises only at the time of redemption of debentures ? 3) Whether on the facts and in the circumstances of the case, the ITAT is justified in law and in allowing the total liability of Rs.26,56,000/- arising out of settlement dated 28/6/1995 with workers union even though this entire liability - = : 2 : = - neither pertained to relevant AY 1996-97 and nor was paid in AY 1996-97 ? 4) Whether on the facts and in the circumstances of the case, the ITAT are justified in law and in holding that unabsorbed depreciation should be set off against income from other sources even though as per the provision of section 32(2) of I.T. Act, unabsorbed depreciation can be set off only against business income. ? 2. So far as the first question is concerned the matter has been remanded back to the CIT(A) for considering the matter afresh. We do not see any substantial question of law arise therefrom. 3. So far as the second question is concerned, the same is converned by the Judgment of the Supreme Court in the case of Madras Industrial Investment Madras Industrial Investment Madras Industrial Investment Corporation Ltd. V/s. Commissioner of Income Tax Corporation Ltd. V/s. Commissioner of Income Tax Corporation Ltd. V/s. Commissioner of Income Tax reported in 225 I.T.R. 802 225 I.T.R. 802 225 I.T.R. 802. 4. So far as the as third and fourth questions are concerned, they are covered by the judgments of the Supreme Court in the case of Commissioner of Commissioner of Commissioner of Income Tax V/s. Swadeshi Cotton and Flour Mill Pvt. Income Tax V/s. Swadeshi Cotton and Flour Mill Pvt. Income Tax V/s. Swadeshi Cotton and Flour Mill Pvt. Ltd. Ltd. Ltd. reported in 53 ITR 134 53 ITR 134 53 ITR 134 and Commissioner of Commissioner of Commissioner of Income Tax V/s. Virmani Industries Pvt. Ltd. & Ors. Income Tax V/s. Virmani Industries Pvt. Ltd. & Ors. Income Tax V/s. Virmani Industries Pvt. Ltd. & Ors. reported in 216 I.T.R. 607 216 I.T.R. 607 216 I.T.R. 607 respectively. In the aforesaid view of the matter, no substantial question of law arise. Appeal is, therefore, dismissed in limini with no order as to costs. - = : 3 : = - (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)