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2021 (8) TMI 1090 - AT - Income TaxRectification u/s 254 - recognition of goodwill required or not - pooling of interest method in the scheme of amalgamation - assessee in the scheme of amalgamation did not specify whether it was following pooling of interest method or purchase method of amalgamation - HELD THAT:- The provisions of section 254(2) of the Act empowers the ITAT to rectify the mistake committed by it. But such a mistake aassessee in the scheme of amalgamation did not specify whether it was following pooling of interest method or purchase method of amalgamation.s to be apparent from record. There are various judicial precedents on the concept what a mistake apparent from record is. Generally, wherever two views are possible with respect to any issue/question, it is implied that the mistake cannot be said as apparent. In this respect we find support and guidance from the observationt in the case of ACIT-Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] where the Hon’ble Apex Court defined the term apparent mistake in context of section 254(2). This fact has not been disputed. The relevant finding of the ITAT is on para 31.7 to 31.9 of the order. It was also recorded that there is no dispute qua the fact of making the payment by way of issuing the shares which is a valid mode of payment as held by the Hon’ble Delhi High Court in case of CIT vs. Mira Exim Ltd [2013 (10) TMI 228 - DELHI HIGH COURT]. Accordingly, the ITAT after considering all these facts have recognized the goodwill in the books of accounts of the assessee. Revenue has not pointed out any mistakes with respect to the above finding of the ITAT. Therefore it cannot be said that there is a mistake apparent from record arising from the order of the ITAT. Principles laid down by the Hon’ble Supreme Court in the case of CIT vs. Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT] are not applicable in the case on hand. In this regard, we note that once the ITAT has recognized the goodwill in the books of the assessee which is a tangible assets as held by the Hon’ble Supreme Court. Therefore the reference made to the above judgment of the Hon’ble Supreme Court was not made in the context of AS 14 and AS 103. But it was referred to hold that the goodwill being intangible asset is eligible for the depreciation. We do not find that there is any mistake in the order of the ITAT which is apparent from record. Hence, we disagree with the contention of the learned DR. Thus the MA filed by the Revenue is dismissed.
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