9911796707
TMI Blog2012 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of assessment under section 143(3) was passed on 28th December, 2009 determining a total income of ₹ 46,88,93,652/-. 3.1 For the assessment year 2007-08, order under section 143(3) was passed on 29th December, 2009 determining a total income of ₹ 1,61,90,927/-. 3.2 Subsequently, notices were issued of assessment under section 263 of the Act by the Commissioner of Income Tax (both dated 28th November, 2011) for the assessment years 2006-07 and 2007-08. During the course of proceedings under section 263 of the Act, the Commissioner of Income Tax on examination of the assessment orders and the written submissions made by the assessee company, concluded that the Assessing Officer, without application of mind, has wrongly allowed the depreciation on goodwill amounting to ₹ 4,92,18,750/- for the assessment year 2006-07 and ₹ 3,69,14,063/- for the assessment year 2007-08. In the opinion of the CIT, the order passed under section 143(3) of the Act for both the assessment years were erroneous and prejudicial to the interest of revenue within the meaning of section 263 of the Act. The CIT set aside the assessment orders by orders under section 263 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The learned CIT has erred, in law, and in facts, by revising the order of the Assessing Officer without appreciating the true import of the judicial precedents relied on by the appellant. The appellant submits that each of the above grounds s independent and without prejudice to one another. Further, the appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before, or at the time of hearing of the appeal. 5. The learned AR submitted that for invoking the jurisdiction under section 263 of the Act, the order passed by the Assessing Officer must be erroneous and prejudicial to the interest of revenue. It was submitted that the order of the Assessing Officer is not erroneous since the order was passed after making relevant enquiries. It was contended that during the course of assessment proceedings the details with respect to Business Succession Agreement, which gave rise to the goodwill of the assessee company, were called for by the Assessing Officer and were duly submitted vide letter dated 8th December, 2009. Accordingly, the assessee s claim of depreciation on goodwill had come to the notice of the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibles listed in section 32(1)(ii) of the Act should have the following characteristics in common : - Acquired to facilitate efficient conduct of business; or - Tools of trade which facilitate carrying on business; or - Result of experience and reputation. The following tabulation will demonstrate the fact that the intangible assets acquired by the appellant have the above characteristics. Intangibles Characteristics Customer / supplier contracts. Export quotas Assembled work force Acquired to facilitate efficient conduct of business _/ _/ _/ Tools of trade which facilitate carrying on business _/ _/ _/ Result of experience and reputation _/ _/ The appellant places reliance on the following jurisprudence in support of the deduction claimed in respect of depreciation on intangible assets. Jurisprudence : CIT, Kolkata Vs. SMIFS Securities Ltd (SC), CIT Vs. Hindustan Coca Cola Beverages (P) Ltd Vs. DCIT (331 ITR 192) Delhi High Court, Skyline Caterers (P) Ltd. Vs. ITO (306 ITR 369) Mumbai Tribunal, B. Raveendran Pillai Vs. CIT (322 ITR 531) Kerala High Court, DCIT Vs. Bosch Ltd. (Bangalore Tribunal) (ITA Nos.706 and 707/Bang/2010), Kotak Forex Bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order against the assessee or adverse to the interests of the assessee and no need for the assessing authority to spell out reasons when the order is accepting the claim of the assessee and the learned counsel submit that this is the legal position on authority, we are afraid that to accept a submission of this nature would be to give a free hand to the assessing authority, just to pass orders without reasoning and to spell out reasons only in a situation where the finding is to be against the assessee or any claim put forth by the assessee is denied. We are of the clear opinion that there cannot be any dichotomy of this nature as every conclusion and funding by the assessing authority should be supported by reasons, however brief it may be, and in a situation where it is only a question of computation in accordance with the relevant articles of a double taxation avoidance agreement and that should be clearly indicated in the order of the assessing authority, whether or not the assessee had given particulars or details of it. It is the duty of the assessing authority to do that and if the assessing authority had failed in that, more so in extending a tax relief to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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