2023 (9) TMI 604 - ITAT MUMBAI

Depreciation claimed on goodwill, distribution network, and customer relations - AO concluded what was transferred pursuant to the amalgamation was net assets, which consist of existing tangible assets as well as other existing intangible assets - both the AO as well as the learned CIT(A) rejected the claim of the assessee as these intangible assets were not shown in the books of accounts of the transferor company and mere accounting treatment by the assessee does not entitle the assessee to claim depreciation in its books - HELD THAT:- It is pertinent to note that the scheme of amalgamation was approved by the Hon'ble High Court with the appointed date being 01/04/2015, therefore it is necessary to see how this aspect was examined in the first year itself, which is the assessment year 2016-17. During the hearing, it was submitted that the assessee claimed depreciation on the aforesaid intangible assets in the first year after the amalgamation. However, its appeal against the assessment order for the assessment year 2016-17 is currently pending before the learned CIT(A).

Therefore, in view of the above, we are of the considered opinion that it becomes relevant to examine whether any intangible asset arises in the hands of the assessee pursuant to the amalgamation and whether on that intangible asset depreciation is allowable under section 32 of the Act. Since the appeal of the assessee against the disallowance of depreciation on aforesaid alleged intangible assets in the first year itself is currently pending before the learned CIT(A), we deem it appropriate to restore this issue to the file of learned CIT(A) for de novo adjudication - Grounds raised in assessee’s appeal are allowed for statistical purposes.

Refund of excess Dividend Distribution Tax (“DDT”) paid by the assessee - assessee raised this issue by way of additional ground and submitted that the beneficial rate on dividends as provided in Double Taxation Avoidance Agreement (“DTAA”) is to be applied for the purpose of DDT, as the DTAA override the provisions of the Act - HELD THAT:- During the hearing, the learned Representative appearing for the parties fairly agreed that this issue is now covered in favour of the Revenue by the decision of DCIT v/s Total Oil India Private Ltd. [2023 (4) TMI 988 - ITAT MUMBAI (SB)] Accordingly, respectfully following the aforesaid decision of the Special Bench of the Tribunal, ground no.6 raised in assessee’s appeal is dismissed.