9911796707
TMI Blog2016 (4) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer and prayed to reverse the order of the ld CIT(A). 4. We have heard the rival contentions of both the parties and perused the material available on the record. The identical issue involved in this appeal, has been decided by the Coordinate Bench in assessee's own case in ITA Nos. 405, 503, 504, 505, 506 & 507/JP/2010, Asstt. Years 2001-02, 07-08, 02-03, 03-04, 04-05, 05-06 order dated 30/09/2011. The operative portion of the Coordinate Bench's order is reproduced as under:- 8. We have heard rival submissions and considered them carefully. After considering the rival submissions and perusing the material on record, we find that the objection raised by AO which has been reiterated here before the Tribunal by ld. CIT D/R has already been met with by ld. CIT (A) while disposing the appeal of the assessee. The objection raised by AO were explained by ld. Counsel of the assessee before ld. CIT (A) in writing and they were tabulated in the order of Tribunal which are also reproduced somewhere above in this order. The ld. CIT (A) has taken into consideration the agreement entered between assessee and Pepsi Food Ltd. Thereafter, the ld. CIT (A) has taken into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2000 between Pepsico India Holding Ltd. with the appellant. Pepsico India Holding Ltd. is a subsidiary company of Pepsico Inc New York who is engaged in the business of manufacturing and distribution of Soft Drinks Beverages and Syrup Mix sold under the trade mark LEHAR owned by Pepsi Food Ltd. Pepsi Food Ltd. and Pepsico Inc granted franchise rights for bottling and distribution of their various products to Dhillon Kool Drinks and Beverages Ltd. for the territories of Punjab, Himachal Pradesh, certain parts of Haryana, New Delhi I Delhi the business of Dhillon Kool Drinks was in bad shape and since they had to pay an amount over Rs. 20 crores to Pepsico India Holding Ltd. and therefore, they were interested in selling their Delhi business alongwith rights, interest, privileges, assets and liabilities in the National Capital Territory of Delhi for which the appellant company offered to purchase the said business as a going concern subject to the seller arranging in favour of appellant company by Pepsi Food Ltd. of the license and franchise rights to use the trademarks of Pepsi brand of the Soft drinks. In view of these intentions an agreement was entered in between Pepsico India H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly the transferor undertaking. namely DKD was in bad financial shape which could not pay more than Rs. 20 crore to Pepsico India Holding Ltd. and because of which they had to transfer their business to the appellant and therefore, this payment cannot be construed as payment for goodwill as held by assessing officer while giving a finding that no depreciation is allowable on such payment since, it is a goodwill. Further, on this issue there is direct judgment of ITAT Delhi Bench C in the case of Hindustan Coca Cola Beverages Pvt.Ltd. v/s DCIT Circle - 12(1) New Delhi dt.25.8.2009 in which Hon'ble ITAT has held that true basis of depreciation allowance is character of an asset and not its description and even if an asset is described as goodwill but if it fits in the description of S.32(1)(ii) the depreciation is to be granted thereupon. In that case the appellant was domestic company engaged in the business of manufacturing and distribution of aerated and non aerated. beverages and it made payment towards business acquired on slump price and a part of price so paid was allocated to intangible assets covered under the head goodwill and when depreciation has been claimed U/s 32 on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to acquire Delhi business from Dhillon Kool Drinks & Beverages Ltd. (DKD) and the formal authorizations from PFL and PSI to undertake and conduct Delhi business was also to be obtained from the respective parties. In this background a letter of intent was issued by Pepsi Food Ltd. to the assessee company on 26.5.2000 i.e. the date on which business transfer agreement was executed between the assessee and M/s. DKD, and thereafter the assessee company has stepped into the shoes of seller and commenced the business of manufacturing and distribution of soft drinks brands owned by PFL. It is further noted that M/s. DKD was in bad shape and they had to pay an amount of Rs. 20 crores to M/s. Pepsico India Holding Ltd. and, therefore, they were interested in selling their Delhi business along with rights, interest, privileges, assets and liabilities in the National Capital Territory of Delhi for which the assessee company offered to purchase the said business. Since there was a liability of more than Rs. 20 crores, in our considered view, there cannot be any good will and, therefore, AO's presumption that they had purchased good will and not the rights, interest, privileges, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
