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2021 (3) TMI 770 - ITAT BANGALORECombined order - Reopening of assessment u/s 147 - reassessment beyond the period of 4 years - initiation of reassessment proceedings was made based on audit objection - Earlier, ITAT remanded the matter back requesting the AO to provide reasons for initiating reassessment proceedings - CIT(Appeals) upheld the TP adjustment made by the AO, however, he directed the AO to grant depreciation at the prescribed rate applicable to furniture & fittings in respect of server racks, however with regard to depreciation on networking equipment/active components etc. decided the issue in favour of assessee allowing depreciation @ 60% against which the revenue filed appeal before the Tribunal - HELD THAT:- With regard to non-grant of depreciation on the basis of additional ground in respect of depreciation on goodwill which was acquired by NXP India from Philips Electronics India Ltd. and Conexant India at the time of slump sale, the assessee filed appeal before the Tribunal. Tribunal vide order dated 12.8.2015 and 22.7.2015 remanded the matter back to the file of AO for fresh consideration. In the meanwhile, the AO vide notice dated 22.3.2016 initiated reassessment proceedings u/s. 148 of the Act for this AY 2009-10, pursuant to which the assessee filed return of income on 23.4.2016 requesting the AO to provide reasons for initiating reassessment proceedings. AO vide letter dated 27.10.2016 informed the assessee that reassessment proceedings were initiated as per BTA dated 22.7.2008 between the assessee and NF India, goodwill is not treated as part of consideration, hence the assessee made a wrong claim of deducting the goodwill from the sale consideration received. The assessee filed objections against the reassessment proceedings vide letter dated 13.12.2016 questioning the validity of the proceedings. AO overlooking the objection of the assessee, passed combined assessment order giving effect to the ITAT Order dated 22.7.2015 and 12.8.2015 and the reassessment order on 29.12.2016. Against this, the assessee filed appeal before the CIT(Appeals). The CIT(Appeals) also disposed of the appeal by the impugned order dated 22.2.2018. The assessee is in appeal before the Tribunal. AO passed a combined order giving effect to earlier orders of Tribunal with regard to original assessment and also reassessment order u/s. 143(3) r.w.s. 147 of the Act which is incorrect. AO must have passed distinct and separate orders giving effect to the Tribunal’s orders which is emanating from the assessment order passed u/s. 143(3) and fresh reassessment order which is emanating from reassessment notice dated 23.3.2016. As such, we vacate the combined assessment order dated 29.12.2016 passed u/s. 143(3) r.w.s. 147 r.w.s. 254 of the Act and direct the AO to pass distinct and separate assessment orders one in respect of order giving effect to the Tribunal’s orders emanating from the assessment order u/s. 143(3) and another in respect of reassessment order u/s. 143(3) r.w.s. 147 of the Act. Accordingly, the issue in dispute is remitted in its entirety to the file of Assessing Officer to pass separate assessment orders as directed above, after giving opportunity of being heard to the assessee. Appeal by the assessee is allowed for statistical purposes.
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