TMI Blog2010 (12) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy: This is an appeal filed by the assessee directed against the order of the CIT(Appeals)-VI, Mumbai dated 14-01-2009. 2. Facts in brief: The assessee is in the business of graphic art production. It filed its return of income on 30-10-2002 declaring a total income at Rs.5,34,50,000/-. The assessment was completed u/s 143(3) on 25-02-2005. The AO states that, on perusal of records, it was seen that the assessee had claimed depreciation of Rs.16,42,000/- at the rate of 25% on the intangible assets described in the final accounts as goodwill and valued at Rs.65,69,062/-. He reopened the assessment u/s 147. Thereafter, for the various reasons given in the assessment order, he disallowed the claim of depreciation on intangible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done in this year from the block of assets. He submitted that the only way that an asset can be removed from the block of assets is, only in case where there is sale or discarding, demolition or distruction. He relied on the decision of Mumbai Bench of the Tribunal in ITA No.6807/Mum/06 and ITA No.6223/Mum/07, order dated 10th Sept., 2009. On merits he submitted that the assessee has all along pointed out to the AO that the amount paid for transfer of business was mainly for transfer of marketing database, use of net work and transfer of human resources experienced in the business. He submitted that the amount can be termed as "any other business or commercial right of similar nature being intangible assets acquired after 1st April, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into an agreement dated 29th Oct. 1999 for transfer of business viz. of Graphic art products. 2. Under this agreement Kodak India Limited has transferred the business of Graphic Art Products along with assets and liabilities of business and intangible assets as a going business concern viz. of Graphic Art Films, Papers, Chemicals etc. to Kodak Polychrome Graphic India Pvt. Ltd. 3. The component of the such transfer as the para 2 on page 2 of the said agreement is as follows: a. Equipment set forth in Annexure 1 attached hereto by delivery. b. Inventory Accounts Receivable and other Receivables as on the effective date as per Annexure 2 attached hereto. c. Intangible assets. d. Liabilities mentioned in Annexure 3 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Inventory, Accounts Receivable and other Receivables as on the effective date as per Annexure 2 attached hereto. The inventory will be transferred by delivery. (c) Intangible assets." 9. After considering all these submissions, the AO in his assessment order passed u/s 143(3) on 25-02-2005, chose not to disallow the claim of the assessee for depreciation on intangible assets. 10. Later a notice u/s 154 of the Act dated 05-12-2005 was issued wherein under the head "Particulars of mistake proposed to be rectified" it was given as follows: "No depreciation is admissible on Goodwill, hence depreciation claimed of Rs.1642266/- should be disallowed." The assessee gave a detailed reply and contended as follows: "The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure on the part of the assessee company to disclose fully and truly all the material facts requiring for assessment for A.Y. 2002-03." 11. On a perusal of all these correspondence, we are of the considered opinion that the reopening in question is bad in law for the reason that reasons for reopening have been formed on a change of opinion. The Hon'ble Bombay High Court in the case of Chartini India Ltd. vs. Addl. CIT 314 ITR 275 (Bom) held as under: "Where the material on record has already been considered and adjudicated upon, it would not be open to the Assessing Officer to disagree with the view already taken on the material on record. In such a case, reopening of the assessment based on the materials already considered and adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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