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TMI Blog2024 (10) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... s been dismissed by this Tribunal. The above finding of this Tribunal remains uncontroverted by the ld. DR by way of placing any binding precedence in its favour. We also notice that similar view was recently taken by this Tribunal in another case of Primetals Technologies India Pvt. Ltd. [ 2024 (5) TMI 1473 - ITAT KOLKATA] and therefore, taking consistent view as the facts and issue remain same as dealt by this Tribunal for A.Ys. 2012-13 and 2013-14, we are inclined to decide this appeal in favour of the assessee. - Dr. Manish Borad, AM And Shri Sonjoy Sarma, JM For the Assessee : Shri Sunil Surna, AR For the Revenue : Shri P.P. Barman, DR ORDER PER DR. MANISH BORAD, AM: This appeal at the instance of the assessee is directed against the order of National Faceless Appeal Centre, Delhi [the learned CIT (A)] dated 27th October, 2023, which is arising out of the assessment order under Section 143(3) of the Income-tax Act, 1961 (the Act) dated 28th December, 2018. 02. The assessee has raised following grounds of appeal: - 1. For the learned CIT (A) erred in dismissing the appeal ex-parte without allowing the assessee any reasonable opportunity of being heard to the assessee. 2. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities but failed to controvert the contentions made by the learned Counsel for the assessee. 07. We have heard the rival contentions and perused the records available before us. The short issue for our consideration is that whether the learned CIT (A) erred in disallowing the claim at the rate of 25% on the Written-down value of goodwill. We observe that the assessee was amalgamated with a company namely PAFL under the orders of Hon'ble High Court of Calcutta, during F.Y. 2006-07. The consideration paid by the assessee in excess of the cost of net assets acquired by it was treated as goodwill and was shown as asset in the balance sheet. Since, F.Y. 2006-07, assessee has been consistently claiming depreciation on the goodwill created during the F.Y. 2006-07 and depreciation has been claimed on the Written-down value of the goodwill asset as on the opening of each year. In the instant year also, assessee has claimed depreciation at the rate of 25% at ₹ 59,32,617/- on the opening WDV of goodwill on 1st April, 2015 at ₹ 2,37,30,469/-. Both the lower authorities though denied the claim of the assessee, we however observe that this issue has travelled before this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, which reads as follows- 32. (1) [In respect of depreciation of - (i) buildings, machinery, plant or furniture, being tangible assets; (ii) know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998, owned, wholly or partly, by the assessee and used for the purposes of the business or profession, the following deductions shall be allowed For the purposes of this section, the term assets has been defined in Explanation 3 to the provision. The relevant extract of the explanation is given below for your kind perusal- ...Explanation 3.-For the purposes of this sub-section, {the expression assets'/shall mean- (a) tangible assets, being buildings, machinery, plant or furniture; (b) intangible assets, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature 1.2 Therefore on a bare reading of the provisions of section 32(1) of the Act read with Explanation 3, it is clear that depreciation is allowable on any other business or commercial rights of similar nature' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard, it is also submitted that the claim of depreciation on Goodwill was allowed For the previous year i.e. A.Y. 2011-12 by your predecessor in this office vide the order passed u/s 250 of the Act by CIT(A)-IV dated 7th June, 2016 (Appeal No. 1128 of 2014-15). Copy of order enclosed as Annexure - 4. Since the depreciation of Rs. 250,00,000/- was allowed in the A.Y. 2011- 12, the written down value of Goodwill as on the beginning of the year i.e. 1st April 2011 was Rs. 750,00,000/- on which the depreciation was claimed by your appellate during the gear under consideration. 1.11 It is humbly submitted that the Ld. AO, without considering the submission of the Appellant and without giving proper cognizance to the post-merger financials for the financial year 2006-07 filed in course o/ assessment, merely remarked that the value of goodwill is not available from the financing for financial gear 2006-07 and disallowed the depreciation claimed by the Appellant. The disallowance made by the Ld. AO is grossly erroneous and not justified and is liable to be deleted. 1.12 It is humbly submitted that it is a well-established fact that decisions of the Supreme Court, is law of the land a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceding year) was allowed by my predecessor in this office vide order dated 07.06.2016 (Appeal No. 1128 of 2014-15). Following the same ground of the appellant in this behalf is ALLOWED. 3. Suffice to say, it has come on record that the CIT(A) has followed his order on the very issue in preceding assessment year 2011-12 whilst deleting the impugned disallowance claim on goodwill in question. Learned authorized representative has placed on record this tribunal's coordinate bench's order in ACIT vs. M/s Shristi Infrastructure Development Corporation Ltd. in ITA No.1663/Kol/2016 dated 25.09.19 in the said earlier assessment year upholding the CIT(A)'s action to this effect as follows: 8. Ground Nos. 2, 3 and 4 raised by the Revenue relates to depreciation on goodwill. 9. Brief facts qua the issue are that on perusal of submission made by the assessee company on 14.03.2014 and also going through the computation of income filed with the revised return of income on 09.01.2013, it was noted that assessee has claimed depreciation on goodwill of Rs. 2,50,00,000/-. During the course of assessment proceedings, the assessee furnished written submission on 14.03.2014 regarding claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for the AY 2007-08, it is revealed that there was no goodwill reflected as an asset. Therefore, the claim of the assessee company is baseless that goodwill to the tune of Rs. 10 crores was recorded as an asset in the FY 2006-07. Therefore, the depreciation of Rs. 2.5 crore claimed on goodwill was disallowed. 10. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has deleted the addition made by the Assessing Officer. Aggrieved by the order of the ld. CIT(A) the revenue is in appeal before us. 11. The ld. DR has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity. On the other hand, the ld. Counsel for the assessee defended the order passed by ld CIT(A). 12. We have heard both the parties and perused the material available on record. We note that pursuant to scheme of amalgamation approved by the Hon'ble High court of Delhi on 22nd May, 2007 and Hon'ble Calcutta High Court on 20th June, 2007, the erstwhile Shristi Infrastructure Development Corporation Ltd. merged with Peerless Abasan Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o interfere in the order passed by the ld. CIT(A), his order on this issue, is hereby upheld and the grounds of appeal raised by the revenue are dismissed. 4. We therefore adopt judicial consistency since the Revenue has failed to pinpoint any distinction on facts and in law qua the issue of assessee's depreciation claim on goodwill. We accordingly uphold the CIT(A)'s findings under challenge deleting the impugned disallowance. 5. This Revenue's appeal is dismissed. 08. The above finding of this Tribunal remains uncontroverted by the ld. DR by way of placing any binding precedence in its favour. We also notice that similar view was recently taken by this Tribunal in another case of Primetals Technologies India Pvt. Ltd. (supra) and therefore, taking consistent view as the facts and issue remain same as dealt by this Tribunal for A.Ys. 2012-13 and 2013-14, we are inclined to decide this appeal in favour of the assessee. Accordingly, we reverse the finding of the ld. CIT (A) and direct the ld. AO to allow the claim of depreciation on goodwill at ₹ 59,32,617/-. The effective grounds of appeal raised by the assessee are allowed. 09. In the result, the appeal of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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