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TMI Blog2018 (10) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal to the TPO, the present assessment order passed by following the said order is also not sustainable. Matter remanded back to the TPO/AO to decide afresh after providing an opportunity of being heard to the assessee - ITA No.5316/Del./2015 - - - Dated:- 8-10-2018 - SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The ASSESSEE : Ms. Ritu Theraja, CA For The REVENUE : Shri K. Tewari, Senior DR ORDER The appellant, Fabindia Overseas Pvt. Ltd. (hereinafter referred to as the assessee ) by filing the present appeal, sought to set aside the impugned order dated 17.06.2015 passed by Ld. CIT (Appeals)-3, New Delhi qua the assessment year 2011-12 on the grounds int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving the purchase of the trademark was held at Nil . In view of this, the Assessing Officer is justified in rejecting the claim of the depreciation during the year. The ground of appeal raised by the appellant is therefore, dismissed. 2. That on the facts and circumstances of the case and in law, the Hon'ble CIT(A) has erred in dismissing the ground assailed by the Appellant in respect of initiation of penalty proceedings under Section 271(1)(c) of the Act. 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessing Officer following Assessment Year 2007-08 vide which TPO vide her order dated 15.10.2010 has proposed that the depreciation claimed by the assessee on trademark is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Tribunal vide order dated 13.06.2016 passed in its own case ITA Nos.2244/Del/2013 2245/Del/2013 for AYs 2007-08 2009-10 and drew our attention towards para 23 at page 37 of the order (supra), operative para 23 thereof is extracted as under :- 23. Therefore, on an overall consideration of the facts of the case and the judicial precedents available, it is our considered opinion that it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade mark need to be examined afresh. Accordingly we set aside the order of Assessing Officer/TPO/CIT (A) on this issue and restore the same to the file of the TPO for examination of the same afresh in accordance with the law, after affording necessary opportunity of being heard. In the result, Ground nos. 1 2 of the assessee s appeal are allowed for statistical purposes. 7. Bare perusal of the operative part of the order passed in assessee s own case for AYs 2007-08 and 2009-10 by the coordinate Bench of the Tribunal goes to prove that disallowance of depreciation claim by the assessee u/s 32 of the Act qua trademark acquired in FY 2006-07 is not sustainable as the TPO is not to decide the business expediency of any intangible ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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