9911796707
TMI Blog2020 (7) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of such amalgamation has received back the goodwill in its book, depreciation has to be allowed on goodwill. As regards the doubt raised by learned DRP that the assessee cannot claim depreciation on the entire amount of goodwill, it must be observed that the assessee has claimed goodwill on the opening WDV only and not on the entire amount. It is now fairly well settled that goodwill being an intangible asset, depreciation has to be allowed. In view of the aforesaid, we direct the Assessing Officer to allow assessee s claim of depreciation on goodwill. Claim of additional depreciation on goodwill subsequent to amalgamation - In the light of decision of the Co-ordinate Bench in assessee s own case on same set of facts, we restore this issue back to the file of Assessing Officer with similar directions Non-granting of set off of brought forward business losses - HELD THAT:- As assessee has prayed for restoration of this issue with a direction to Assessing Officer to allow assessee s claim. The issue is restored back to Assessing Officer for reconsideration in accordance with law. Assessing Officer shall grant reasonable opportunity of hearing to the assessee in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said company does not maintain separate segment for ITES in the financial year. The company is primarily engaged in providing BPO services. There is considerable change in the business of the assessee and there is extra-ordinary event in the financial year 2011-12 i.e. disinvestment. The company had sold 25,000 shares of Excel Infra N reality Pvt. Ltd. The objections raised by the assessee for excluding above two companies were rejected by the TPO. 3. The Assessing Officer while passing draft assessment order dated 31/03/2016, further disallowed assessee s claim of depreciation on goodwill. Aggrieved against the draft assessment order, the assessee filed objections before the Dispute Resolution Penal (DRP), inter-alia, assailing inclusion of Genesys and Excel in the final set of comparables and disallowance of assessee s claim of depreciation on goodwill, as well as, depreciation on goodwill arising pursuant to merger of Tracmail AR Services Pvt. Ltd. with the assessee company. The DRP rejected the objections of the assessee qua, aforementioned claims. The Assessing Officer consequent to the directions of the DRP passed impugned assessment order making additions in respect: (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee placed reliance on the following decisions:- (i) Emersion Climate Technologies vs. DCIT, ITA No.359/PUN/2016 decided on 25/04/2018. (ii) Baxter India Pvt. Ltd vs. ACIT, ITA No.6158/Del/2016 decided on 24/08/2017. The ld. Counsel for the assessee further pointed that the DRP in proceedings for assessment year 2013-14 had excluded Excel form the final set of comparables. The ld. Counsel for the assessee confined his submissions in respect of Transfer Pricing issues, in assailing inclusion of Genesys and Excel in the list of comparables. 5.1 In respect of ground No.9 and 10, the ld. Counsel for the assessee submitted that the issue of allowability of depreciation on goodwill and additional deprecation on goodwill was considered by the Tribunal in assessee s own case in ITA No.2692/Mum/2016 for assessment year 2011-12 decided on 12/07/2019. The Tribunal held that the assessee is eligible for claiming depreciation on goodwill. As regards additional depreciation on goodwill, the ld. Counsel for the assessee submitted that in assessment year 2011-12 the assessee had not claimed additional depreciation on goodwill in the return of income. The claim was made subsequently during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f comparables, the margins of the comparables would be within +/- 5% range of the asssessee s margin. Genesys International Corporation Ltd. The assessee sought exclusion of Genesys on the ground of functional disparity. It was pointed that in assessment year 2008-09 the said company was excluded from the list of comparables by the Tribunal in assessee s own case for the reason of functional differences. We find that in ITA No.7519/Mum/2019 (supra) the assessee has assailed inclusion of four comparables including Genesys. The Tribunal after examining the facts concluded that all the four comparables are not in the same field and hence, directed to exclude the same from the list of comparables. Further, we observe that in assessment year 2011-12 the TPO while passing order U/s.92CA(3) of the Act dated 28-1-2015, has himself not included Genesys in the final list of comparables. No material has been brought on record before us to show that in the assessment year under appeal, both the entities have similar functions. Thus, in the light of the decision of the Co-ordinate Bench in ITA No.7519/Mum/2019 (supra) and no change in the facts in assessment year under appeal, we direct the TPO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and direct the Assessing Officer to exclude Excel from the list of comparables. 8. In view of our above findings, ground No.1 to 8 of the appeal are partly allowed. 9. In ground No.9 of the appeal, the assessee has assailed disallowance of depreciation of goodwill. We find that the issue of allowability of depreciation on goodwill was considered by the Tribunal in assessment year 2011-12 in ITA No.2692/Mum/2016 (supra). The Tribunal while allowing assessee s claim held as under:- 18. We have considered rival submissions and perused the material on record. Insofar as the factual position relating to the aforesaid issue is concerned, there is no dispute. Even the Assessing Officer has stated that the assessee had transferred its business on slump sale basis to Tracmail AR Services Pvt. Ltd. in assessment year 2008 09 which included goodwill of ₹ 11,51,01,122. The aforesaid goodwill was also reflected not only in the respective books of account of the assessee and the transferee company but also appears in the financial statements. It is also a fact that the subsequent amalgamation between the assessee and Tracmail AR Services Pvt. Ltd. was by virtue of a scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and various case laws held as under:- 24. We have considered rival submissions and perused the material on record. We have also taken note of the decisions cited before us. As discussed earlier, aforesaid deduction was claimed by the assessee in course of assessment proceedings through a revised statement of income. While the Assessing Officer has not expressed any view on such claim, learned DRP has rejected it solely on the ground that assessee had not claimed it either in the return of income or by filing a revised return of income. In our view, the aforesaid reasoning of learned DRP is contrary to the settled legal position. In case of Pruthvi Brokers and Shareholders Pvt. Ltd. (supra), the Hon'ble Jurisdictional High Court has held that even if the assessee has failed to claim a deduction either in the return of income or by filing revised return of income, the assessee can make such claim subsequently. Even in case of Goetz India Ltd. (supra), the Hon'ble Supreme Court has held that there is no restriction on the appellate authorities in entertaining a fresh claim of deduction made by the assessee. Therefore, keeping in view the ratio laid down in the aforesaid deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
