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TMI Blog2022 (9) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of the ld.CIT(A) with a direction to admit the additional evidences, which has got a bearing on the outcome of this appeal and decide the issue as per fact and law, after giving due opportunity of being heard to the assessee. While doing so, he shall also keep in mind how the valuation report dated 02.07.2007 was prepared when the separate business Transfer Agreements are dated 16.05.2007 and therefore, whether such valuation report is a colourable device/sham instrument and self serving document. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... not been judiciously interpreted. 7. That, in view of the facts and circumstances of the case and in law, the NFAC has erred in not passing a speaking order on the merits of the case. The order of the NFAC dated 13.12.2021 is against the provisions of law. 8. That, in view of the facts and circumstances of the case and in law, the AO/NFAC erred in not providing adequate and sufficient opportunity to the Assessee. 9. That, in view of the facts and circumstances of the case and in law, the NFAC has erred in not providing right of personal hearing to the Assessee. 10. That, in view of the facts and circumstances of the case and in law, the observation and the addition made are unjust, illegal, arbitrary, bad in law, highly excessive and based on surmises and conjectures. 11. That, in view of the facts and circumstances of the case and in law, the AO/NFAC has erred in initiating penalty proceedings under Section 271(1)(c) of the Act mechanically and without recording any adequate satisfaction/reasons. 4. Facts of the case, in brief, are that the assessee is a company engaged in the business of manufacture and marketing of active pharmaceutical ingredients and other pharmace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Rs.4,04,54,827/- in respect of acquired assets for AY 2008-09. Accordingly depreciation to the tune of Rs.2,22,40,091/- was disallowed. Since the above issue has impact on the WDV of fixed assets as well as the depreciation allowable for the year under consideration, i.e. AY 2012-13, the assessee was required to work out the WDV of fixed assets as well as the depreciation having regard to the findings given in the order u/s. 143(3) passed for AY 2008-09. In response to the same, the assessee vide letter dated 18.03.2013 reworked the depreciation allowable for the year under consideration at Rs.1,93,47,324/- as against the depreciation claimed in the return at Rs.2,93,54,593/-. Therefore, the AO disallowed the excess depreciation to the tune of Rs.1,66,42,682/- i.e. (2,93,54,593-1,93,47,324). 6. Before the ld.CIT(A), the assessee filed certain additional evidences. However the ld.CIT(A) rejected the additional evidences on the ground that the case of the assessee does not fall within any of the four points of sub-section (1)(a) to (1)(d) of Rule 46(A)(1). So far as the merit of the case is concerned, the ld.CIT(A) held that the reasons given by the AO in the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09 and 2010-11 are pending before the ld.CIT(A). She submitted that there was no addition for AY 2009- 10 and 2011-12. Referring to a series of decisions, the ld. Counsel for the assessee submitted that the explanation 3 to section 43 has no application in the instant case. She accordingly submitted that in the interest of justice, the matter should be restored to the file of the ld.CIT(A). 10. The ld. DR on the other hand heavily relied on the order of the AO and ld.CIT(A). Referring to the decision of the Mumbai Bench of the Tribunal in the case of ITO vs. M/s. Archroma India(P) Ltd. and vice versa vide ITA No.306/Mum/2019 & ITA No.6919/Mum/2018 order dated 15.06.2020 for AY 2014-15 he submitted that the disallowances of depreciation by the AO is in accordance with law. So far as the admission of additional expenses are concerned, he submitted that the so called valuation report was never filed before the AO in any of these three years. He accordingly submitted that the order of the ld.CIT(A) being in accordance with law should be upheld. 10.1 He submitted that in this case actually no valuation report is required for the assets transferred to assessee in slump sale. Valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and 2011-12, therefore, appeals for AY 2008-09 and 2010-11 has got a bearing on the outcome of the current year. It is also her submission that the additional evidences filed before the ld.CIT(A) go to the root of the matter and the ld.CIT(A) without admitting the same should not have rejected the additional evidences. It is also her submission that the ld. CIT(A) has passed a very cryptic order without giving the reason for the decision. 12. We find some force in the above arguments of the ld. counsel for the assessee. It is an admitted fact that for the AY 2008-09, the AO has taken the value of assets of the two companies that were taken over by the assessee at the WDV of the assets as on 31.03.2007 on the ground that the copy of the audited financial statements of M/s. Ferico Laboratories Pvt.Ltd. was not submitted and the assessee has not filed any valuation report. However, the appeal for the AY 2008-09 is still pending before the ld.CIT(A) for adjudication. The outcome of the appeal for the AY 2008-09 in our opinion will have a bearing on the out come of this appeal. Since the appeal for AY 2008-09 is still pending before the ld.CIT(A) and the ld.CIT(A) has passed a very c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al evidence ought to have been admitted. 6. That, in view of the facts and circumstances of the case and in law, the evidences filed and materials available on record has not been properly construed and has not been judiciously interpreted. 7. That, in view of the facts and circumstances of the case and in law, the NFAC has erred in not passing a speaking order on the merits of the case. The order of the NFAC dated 13.12.2021 is against the provisions of law. 8. That, in view of the facts and circumstances of the case and in law, the AO/NFAC erred in not providing adequate and sufficient opportunity to the Assessee. 9. That, in view of the facts and circumstances of the case and in law, the NFAC has erred in not providing right of personal hearing to the Assessee. 10. That, in view of the facts and circumstances of the case and in law, the observation and the addition made are unjust, illegal, arbitrary, bad in law, highly excessive and based on surmises and conjectures. 11. That, in view of the facts and circumstances of the case and in law, the AO/NFAC has erred in initiating penalty proceedings under Section 271(1)(c) of the Act mechanically and without recording any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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