BHARATI SAPRU,J. - (1.) Heard Sri Shubham Agrawal, learned Counsel for the revenue and Dr. Shashwat Bajpai, Advocate assisted by Sri Sujeet Kumar, learned Counsel for the respondent-assessee.
(2.) This is an appeal filed by the revenue under Section 260-A of the Income Tax Act, 1961 against an order of the Income Tax Appellate Tribunal dated 28.04.2006 for the assessment year 1993-94. The questions of law as framed are quoted hereunder:- "1. Whether on the facts and circumstances of the case, the ITAT is legally justified in allowing the claim of depreciation of Rs. 59,48,096/- on Foreign Exchange Fluctuation without appreciating the provisions of Section 43A of the Act and the fact that the Foreign Exchange Fluctuation showed notional fluctuation and varied from year to year ? 2. Whether on the facts and circumstances of the case, the ITAT is legally justified in law in allowing the relief under Section 35D(2) (C) (iv) of the Act, when no such claim was made by the assessee before the Assessing Officer during the assessment proceedings in as much as the expenses claimed were incurred in connection with the installation of Plant and Machinery or construction of the infrastructure of the Company ? 3. Whether on the fact and circumstances of the case, the ITAT is legally justified in law in allowing capitalization of expenses, which were incurred on advertisement, salary and wages, travelling and conveyance and staff welfare expenses and incurred in connection with installation of Plant and Machinery or constructions of infrastructure of Company ?"
(3.) Three Substantial Questions of law were framed in this appeal while ultimately it is only question no.3, which is being pressed for reasons that question no.1 has already been decided against the revenue by way of a judgment in the case of CIT v. Woodward Governor India (P) Ltd. reported in (2009) 312 ITR 254 (SC) . The question no.2 has also been decided against the revenue by way of several judgments all over India including the case of Autolite India Ltd. v. CIT reported in (2003) 264 ITR 117 (Raj) in which it has been categorically held that the expenses incurred on issue of public subscription of shares or of debentures of the company, any payment made against commission, brokerage and charges for drafting, typing, printing and advertisement of the prospectus would be eligible for benefit of Section 35D. The questions no.1 and 2 are, therefore, decided against the revenue and in favour of the assessee.;