2018 (5) TMI 350 - AT - Income Tax

Depreciation on tangibles - Held that - As it has not been established that the assets in the form of goodwill and commercial right claimed which has been taken over were in existence in the books of the predecessors firm. We concur with the Assessing Officer that these assets were artificially created subsequent to the succession of the firm in the books of the assessee company. The only purpose of this action is to claim huge deprecation in hands of the assessee company. Claim of exempt profit from SNA RCC (JV) - share of the profit of the AOP claimed by the assessee - Held that - When the balance sheet of the M/s. SNBL & RCC JV does not show the assessee company as a partner, despite the said balance sheet of AOP being certified by a Chartered Accountant, how the assessee company s balance sheet shows the existence thereof as sundry debtor is not understandable. CIT(Appeals) has given a finding that in the Audit Report of AOP in Form No. 3CD, the profit sharing ratios of the members are shown at 97% and 3% for M/s Shyam Narayan & Bros and M/s Rajesh Construction Co. respectively. The assessee s name does not figure as a member of the AOP in the Audit Report. The action of the authorities below in disallowing the share of the profit of the AOP claimed by the assessee is correct. Hence, we affirm the order of the authorities below.

Summary

Issues Involved:
1. Depreciation on intangible assets (goodwill and commercial rights).
2. Claim of exempt profit from AOP (SNB-RCC JV).

Detailed Analysis:

1. Depreciation on Intangible Assets:
Facts:
- The assessee company entered into a Succession Agreement with a partnership firm, M/s. Shyam Narayan & Bros.
- Post-succession, the assessee company created intangible assets (goodwill and commercial rights) in its books.
- The Assessing Officer (AO) disallowed the depreciation claim of ?1,58,75,000 on these intangibles, considering them as mere book entries without actual consideration.

Arguments by Assessee:
- Depreciation on intangible assets should be allowed under Section 47(xiii) of the Income Tax Act, which deals with the transfer of partnership business to a private limited company.
- The intangible assets were transferred as part of the business succession, and their values should be considered for depreciation purposes.

Findings by CIT(A):
- No tangible assets on account of goodwill and commercial rights existed in the books of the partnership firm before succession.
- The creation of these assets post-succession was artificial and not supported by any actual economic transaction or consideration.
- The reliance on Section 47(xiii) and related case laws was misplaced as the facts did not support the existence of such assets in the predecessor firm’s books.

Tribunal's Decision:
- The Tribunal upheld the CIT(A)'s decision, agreeing that the intangible assets were artificially created post-succession to claim depreciation.
- The balance sheets and other documents provided by the assessee did not substantiate the existence of goodwill or commercial rights before the succession.
- The claim of depreciation was dismissed as it was based on non-existent assets.

2. Claim of Exempt Profit from AOP:
Facts:
- The assessee claimed an exemption of ?9,24,154 as its share of profit from an AOP (SNB-RCC JV).
- The AO disallowed the exemption due to lack of supporting evidence.

Arguments by Assessee:
- The details of the exempt income were furnished during the assessment proceedings.
- The income was exempt under Section 86 read with Section 67A of the Income Tax Act.

Findings by CIT(A):
- The assessee’s name did not appear as a member of the AOP in the audit report of the AOP.
- The balance sheet of the AOP did not show any investment by the assessee company.
- The capital account of the AOP listed M/s. Shyam Narayan & Bros and M/s Rajesh Construction Co. as members, not the assessee company.

Tribunal's Decision:
- The Tribunal affirmed the CIT(A)'s decision, noting that the assessee company was not listed as a member of the AOP in the audit report.
- The balance sheets and other documents did not support the assessee’s claim of being a member of the AOP.
- The claim of exempt income was disallowed as the assessee failed to provide sufficient evidence of its membership in the AOP.

Conclusion:
The Tribunal dismissed the appeal by the assessee on both issues:
1. The claim for depreciation on intangible assets was disallowed due to the lack of evidence supporting the existence of such assets before the succession.
2. The claim for exempt profit from the AOP was disallowed as the assessee was not listed as a member of the AOP in the relevant documents.