TMI Blog2015 (12) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... ARAT HIGH COURT ) would be squarely applicable to the facts of the present case. The impugned order passed by the Tribunal, being in consonance with the principles laid down in the above decision, the question is required to be answered in the affirmative, that is, in favour of the assessee and against the revenue. - TAX APPEAL NO. 115 of 2015 - - - Dated:- 2-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPONENT : MR MANISH J SHAH, ADVOCATE ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Vide order dated 31st March, 2015, this appeal came to be admitted on the following question of law: Whether the learned Tribunal was justified in law and on facts in admitting the additional ground raised on the issue of allowability of depreciation on goodwill, which has raised before the learned Tribunal for the first time and whether learned Tribunal is justified in law and on facts in admitting fresh/new claim on depreciation of goodwill as additional ground raised by the assessee for the first time, without recording any reasons permitting the assessee to raise the same for the first time befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was of the view that in the interest of justice the matter needed to be decided at the end of the Commissioner (Appeals). Accordingly, the Tribunal remitted the issue to the file of the Commissioner (Appeals) to decide the same as per law. 4 Mr. K.M. Parikh, learned Senior Standing Counsel for the appellant, submitted that when the additional ground had not been raised before the Assessing Officer as well as the Commissioner (Appeals), the Tribunal was not justified in admitting such ground raised by the assessee for the first time before it, without recording proper reasons for doing so merely on the count that it was purely a legal ground. It was submitted that the merger took place with effect from 1st April, 2005 and the assessee was aware that the claim of depreciation on goodwill had arisen, despite which, depreciation was not claimed at the relevant time. It was pointed out that the return of income came to be filed on 25th October, 2007 and the revised return was filed on 24th October, 2008, but depreciation on goodwill was not claimed and such claim was raised for the first time before the Tribunal. It was argued that the Tribunal has considered it to be an addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent submitted that the issue involved in the present case is no longer res integra inasmuch as this court in the case of Commissioner of Income Tax v. Mitesh Impex, (2014) 367 ITR 85 (Guj), has held that any new ground or a legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when the facts necessary to examine such ground, contention or claim are already on record. In such a case, the situation would be akin to allowing a pure question of law to be raised, at any stage of the proceedings. 5.1 On the merits of the claim, it was pointed out that, initially, it was not clear as to whether the assessee is entitled to claim depreciation on goodwill. However, the said issue is now concluded by the decision of the Supreme Court in the case of Commissioner of Income Tax, Kolkata v. Smifs Securities Limited, 2012 (348) ITR 302, whereby the controversy became clear that the assessee is entitled to claim depreciation on the goodwill acquired on account of merger. Reference was made to the decision of the Supreme Court in the case of National Thermal Power Company Limited v. Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the controversy in issue are already available on record. 7. At this juncture it may be apposite to refer to the decision of this court in the case of Commissioner of Income Tax v. Mitesh Impex (supra), wherein, after considering the decision of the Supreme Court in the case of National Thermal Power Company Limited v. Commissioner of Income Tax (supra) and in the case of Goetze (India) Limited v. Commissioner of Income-tax, 2006 284 ITR 323 (SC), the court has held thus: 32 In case of National Thermal Power Co. Ltd. vs. Commissioner of Income-tax reported in [1998] 229 ITR 383(S.C.) when the question of law was raised for the first time before the Tribunal though facts were already on record, the Supreme Court observed that there is no reason why the assessee should be prevented from raising such a question before the Tribunal for the first time so long as the relevant facts are on record in respect of the item concerned. There is no reason to restrict the power of the Tribunal in such appeal only to decide the grounds which arise from the order of Commissioner (Appeals). The Tribunal should not be prevented from considering the questions of law arising in assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer. 1. Therefore, any ground, legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when facts necessary to examine such ground, contention or claim are already on record. In such a case the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings. This is precisely what has happened in the present case. The Appellate Commissioner and the Tribunal did not need to nor did they travel beyond the materials already on record, in order to examine the claims of the assessees for deductions under section 80IB and 80HHC of the Act. 41. In the decisions that we have noted above, the Courts have considered such questions when a legal contention or a claim was based on material already on record but raised at an appellate s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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