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2020 (8) TMI 795 - ITAT MUMBAITP Adjustment - adjustment on account of advertisement and marketing expenses (AMP) - HELD THAT:- We have also gone through the orders of Tribunal for various earlier years. We have noted that the TPO while passing the order under section 92CA basically followed the order for AY 2014-15. We have further noted that in appeal for AY 2014-15 held that being of the considered view that as the revenue had failed to discharge the onus that was cast upon it as regards proving that there was any 'understanding' or an 'arrangement' or 'action in concert' as per which the assessee had agreed for incurring of AMP expenses for brand building of its AE, viz. L‟Oreal S.A., France, the TP adjustment of ₹ 354.73 crores in respect of AMP expenses cannot be sustained and is liable to be vacated. Adjustment on account of payment for packaging design, cost, training to Saloon customers and promotional goods - Admission of additional evidence - HELD THAT:- Considering the decision of Tribunal for earlier year on alternate adjustment and the fact that the assessee has filed the aforesaid additional evidence for the first time before the Tribunal and the fact that we have already held that the additional evidence furnished by the assessee has direct relevance qua the grounds of appeal, which required consideration and verification at the end of AO, therefore, we remit the issue to the file of AO for consideration and decision on the issue afresh. AO/TPO is also directed to follow the order of Tribunal for AY 2014-15 as well. Needless to order that before deciding the issue, the AO shall grant opportunity to the assessee. Depreciation of goodwill - assessee submits that he acquired goodwill pursuant to acquisition of business from Rahul Healthcare, the valuation of business and goodwill cannot be questioned by revenue authorities - HELD THAT:- A perusal of draft assessment order shows that the assessee failed to discharge the source of “goodwill‟. The ld. DRP while considering the objections of the assessee though deleted disallowance of cost of acquisition of goodwill, however, the depreciation claimed on goodwill was upheld. In our view the AO as well as ld. DRP have not considered the aforesaid submission of the assessee that the assessee acquired not only tangible assets but also bundle of intangible assets collectively called goodwill, which includes various permits, employee, and contracts, though the assessee in Annexure-2 of its reply dated 21.12.2018 has specifically contended about its claim of “goodwill‟ . Considering the facts that neither the AO nor the ld. DRP considered the aforesaid facts as placed before us, therefore, we remit these grounds of appeal to the file of AO to consider these issues afresh by considering the aforesaid submission of the assessee and the evidences and pass the order in accordance with law. The AO shall consider the decision of Hon‟ble Apex Court in Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT] and Delhi High Court in Triune Energy Services (P.) Ltd. [2015 (11) TMI 1218 - DELHI HIGH COURT] Income from other sources taxed twice - HELD THAT:- We remit these grounds of appeal to the file of AO, with the direction to verify the fact and rectify the order if the same income of ₹ 1.98 Crore is taxed twice in the assessment order. The assessee also directed to explain the fact and provide necessary information/document to the assessing officer for passing the order in accordance with law. Deduction in respect of Education Cess - As per DR this ground of appeal is raised belatedly - HELD THAT:-Considering the decision of Hon‟ble Bombay High Court in Sesa Goa [2020 (3) TMI 347 - BOMBAY HIGH COURT] we admit the ground of appeal and direct the AO to consider the claim of assessee and allow appropriate relief in accordance with the decision of Hon‟ble Bombay High Court in Sesa Goa (supra) wherein it was held that Education Cess and Higher and Secondary Education Cess are liable for deduction in computing income chargeable under head of 'profits and gains of business or profession‟. In the result, this ground of appeal allowed for statistical purposegrant the credit of self-assessment tax and re-compute the interest under section 234A and 234B afresh in accordance with law. Needles to say that before re-computing the interest under section 234A and 234B, the AO shall grant opportunity of hearing to the assessee. Interest u/s 234A and 234B - HELD THAT:- We direct the AO to grant the credit of self-assessment tax and re-compute the interest under section 234A and 234B afresh in accordance with law.
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