2019 (12) TMI 1631 - AT - Income Tax

Depreciation on goodwill arising on demerger - whether additional ground could be raised in a cross objection filed by the assessee u/s 253(4)? - HELD THAT - The issue is squarely covered by the judgment passed by the Co-ordinate Bench 2019 (7) TMI 1547 - ITAT AHMEDABAD AO has simply disputed the quantification of eligible depreciation spanning over various financial years on the ground that depreciation is eligible from the appointed date as sanctioned by the Hon ble Gujarat High Court . Thus, on account of such reworking, the assessee has presented a new claim towards depreciation on goodwill in the impugned AY 2009-10 on the ground that al l the relevant facts are available on record which are duly admitted by the Revenue. Therefore, the assessee cannot be deprived of the eligible depreciation as computed by the AO himself concerning AY 2009-10. Additional ground could be raised in a cross objection filed by the assessee u/s 253(4) - We find ourselves in agreement with the propositions made on behalf of the assessee that in a cross objection, there is no bar to raise legal issues for the first time before ITAT. A cross object ion is like an appeal. It has al l the trappings of an appeal It is filed in the form of memorandum and it is required to be disposed in same manner as an appeal. Even where the appeal is withdrawn or dismissed for default, cross object ion may nevertheless be heard and determined. Cross object ion is nothing but an appeal, a cross appeal at that. This apart, raising of additional ground would only enable the authority concern to correctly assess the tax liability of the assessee. Simi lar view has been expressed in the case of ITO vs. Jasjit Singh 2014 (9) TMI 1166 - ITAT DELHI . We thus do not see any impediment in entertaining the additional grounds. The relevant facts are available on Additional ground is concerned, we observe that where the AO has readjusted the quantum of depreciation in the subsequent assessment year, the assessee is within its legitimate rights to be granted depreciation in AY 2009-10 as per the figures worked by the AO himself . We do not see any perceptible reason for not admitting such claim of the assessee. We also find bonafides in the plea of the assessee for raising new claim on account of depreciation by way of additional ground at this belated stage. The order for the AY 2012-13 was passed on 29.03.2015. By virtue of this order, the assessee came to know about the revision in the claim of depreciat ion concerning AY 2012- 13. By that time, the order of the CIT(A) dated 13.12.2013 was already passed. Therefore, the assessee was incapacitated to put forward such new claim towards depreciation on goodwill amounting for which relevant facts are duly available on record in the light of the decision of Hon ble Supreme court in the case of Goetze ( India) Ltd. 2006 (3) TMI 75 - SUPREME COURT NTPC 1996 (12) TMI 7 - SUPREME COURT Disallowance under section 14A Rule 8D - HELD THAT - Disallowance made u/s. 14A r.w.r 8D is pertained to disallowance of administrative expenditure incurred towards earning exempt income. CIT(A) has restricted the disallowance - After perusal of the material on record we observe that it is not possible to earn huge volume of exempt income without incurring administrative expenses, therefore, we do not find any unreasonableness and infirmity in the decision of Ld. CIT(A). Accordingly, the appeal of the assessee on this issue is dismissed

Summary

Issues Involved:
1. Disallowance of ?1,36,00,477/- on account of depreciation on goodwill arising from the demerger of Adani Energy Ltd.
2. Disallowance under section 14A Rule 8D of the Act.

Issue-Wise Detailed Analysis:

1. Disallowance of ?1,36,00,477/- on account of depreciation on goodwill:

The first issue relates to the disallowance of ?1,36,00,477/- on account of depreciation on goodwill arising from the demerger of Adani Energy Ltd. The appellant argued that the depreciation on goodwill should be claimed from the effective date of the demerger, which is the Assessment Year (A.Y.) 2010-11, rather than the appointed date, A.Y. 2007-08, as per the Gujarat High Court's order dated 09.12.2009.

During the hearing, the appellant's representative submitted that the issue is covered by a previous judgment of the Co-ordinate Bench in ITA No. 1806/Ahd/2017. The respondent's representative did not counter this claim. The Tribunal reviewed the relevant materials and noted that in the prior judgment, the Co-ordinate Bench had decided a similar issue in favor of the appellant. The Tribunal observed that the appellant company was a resultant company from the demerger of Adani Energy Ltd., with the scheme of demerger being sanctioned by the Gujarat High Court effective from 01.01.2007. However, the transfer of assets and liabilities took place in A.Y. 2010-11, and the goodwill was recognized in the appellant's books in A.Y. 2010-11. Therefore, the depreciation could not be claimed from A.Y. 2007-08 when the asset itself was created in A.Y. 2010-11.

The Tribunal found that the lower authorities had erred in disallowing the depreciation claim and noted the appellant's right to claim depreciation from the effective date. Consequently, the Tribunal allowed the appellant's claim for full depreciation on goodwill amounting to ?2,35,25,149/- as claimed in the return of income.

2. Disallowance under section 14A Rule 8D of the Act:

The second issue pertains to the disallowance under section 14A Rule 8D of the Income Tax Act. The Tribunal noted that this issue was also covered by the judgment in ITA No. 1806/Ahd/2017. The major part of the disallowance was related to administrative expenses incurred towards earning exempt income. The Commissioner of Income Tax (Appeals) had restricted the disallowance to ?2,74,658/-.

The Tribunal observed that it is not feasible to earn a significant amount of exempt income without incurring administrative expenses. Therefore, it found no unreasonableness or infirmity in the decision of the Commissioner of Income Tax (Appeals). Consequently, the Tribunal dismissed the appellant's appeal on this issue, finding no reason to deviate from the Co-ordinate Bench's previous findings.

Conclusion:

In conclusion, the Tribunal allowed the appellant's appeal regarding the disallowance of depreciation on goodwill and dismissed the appeal concerning the disallowance under section 14A Rule 8D. The appellant's appeal was thus allowed, and the order was pronounced in open court on 06/12/2019.