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2010 (11) TMI 636 - AT - Income TaxRectification of mistakes - Depreciation - whether the purchase consideration paid by the assessee also includes payment for acquisition of intangible assets also which are eligible for depreciation as per the provisions of s. 32(1)(ii) - depreciation on intangible assets is allowable as per provisions of s. 32(1)(ii) but the term goodwill does not find place in the provisions of s. 32(1)(ii) and hence, allowing of depreciation on goodwill is not in accordance with law until and unless it is shown that the value of such goodwill is in fact the value of intangible assets such as know-how, patents, copyrights, trade marks or any other business or commercial rights of similar nature being intangible assets - Hence, to the extent the assessment order was in accordance with law in earlier years, we have approved the same and have directed the AO to allow depreciation on intangible assets as per the provisions of s. 32(1)(ii) but on the remaining amount of goodwill, if any, depreciation is not allowable as per law and hence, on this aspect, it cannot be held that depreciation should be allowed on goodwill as per the principle of consistency although the same is not allowable as per law - Appeal is allowed for statistical purpose Regarding rectification order - held that: this rectification was made by the AO on the basis of disallowance of depreciation in asst. yr. 2002-03. That issue has been restored back by us to the file of the AO in asst. yr. 2002-03 also. Similar issue in this assessment year i.e., asst. yr. 2004-05 is also restored back to the file of the AO for fresh decision and hence, on this aspect also, no adjudication is called for at this stage and this issue is also restored back to the AO for fresh decision in the light of final finding on the issue of depreciation in asst. yr. 2002-03 and in the present year - appeal of the assessee is allowed for statistical purposes
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