TMI Blog2017 (10) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer to hold that the claim of depreciation was fictitious. If we read his entire expression in this respect, he seems to be suggesting that being an intangible asset acquisition thereof would not qualify for depreciation. If that be so, the view of the Assessing Officer was opposed to the decision of the Supreme Court in case of Smifs Securities Ltd. (supra). On the other hand, if the observations of the Assessing Officer can be seen as his findings that the claim itself was baseless, there was no discussion or reference to any material to enable him to come to such a conclusion. - Decided against the revenue. - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Appellant : Mr Manish Bhatt, Senior Counsel With Mrs Mauna M Bhatt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, erred in law and on fact by not appreciating that its powers on adjudicating on fresh/additional grounds were limited to issues of law which did not require investigation of facts? [H] Whether the Hon ble ITAT, while adjudicating on the issue of impugned fresh claim of depreciation on goodwill, erred in law and on fact by not remitting the matter to the lower authorities for making proper inquiry into the fact of generation of goodwill amount of such goodwill, if any? 2. Insofar as questions no. (A) to (D) are concerned, learned counsel for the Revenue fairly brought to our notice that similar questions concerning the same assessee were raised by the Revenue for the earlier assessment year 2009-10 in Tax Appeal No. 139 of 2017 and the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shareholders (P.) Ltd. reported in [2012] 349 ITR 336 . With respect to the claim of depreciation on acquisition of goodwill, the Tribunal relied on the decision of the Supreme Court in case of Smifs Securities Ltd. (supra) . 5. Having heard learned learned counsel for the parties and having perused the orders on record, we see no reason to interfere. The issue of tenability of a claim though not raised in the original return is examined by the Courts in various decisions. This Court in case of Commissioner of Income- Tax vs. Mitesh Impex reported in [2014] 46 taxmann.com 30 (Gujarat) referred to and relied on several judgements of the Supreme Court and High Courts including the judgement of Bombay High Court in case of Pruthvi Brokers Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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. 40. 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 nee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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