TMI Blog2018 (4) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of the above we consider that Agmark is also a kind of brand recognition therefore the same is of the nature of intangible asset on which the depreciation is to be allowed. Reopening of assessment u/s 147 - Held that:- We are inclined with the findings of the Ld.CIT(A) that the assessing officer has carried out the fresh assessment as per the direction of Hon’ble High Court, therefore, we do not find any error in the decision of the Ld.CIT(A) on this issue. Accordingly, this ground of appeal of the assessee is dismissed. - ITA Nos. 1993 to 1994/Ahd/2016 And ITA Nos. 2000 to 2001/Ahd/2016 - - - Dated:- 20-3-2018 - Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member For The Revenue : Shri Prasoon Kabra, Sr. D.R. For The Assessee : Shri Sunil Talati, A.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- These four appeals, two by Revenue and two by two different assessees for A.Y. 2009-10 and 2012-13, arise from order of the CIT(A)-4, Ahmedabad dated 25-05-2016, in proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961; in short the Act . 2. The assessee has raised following grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the said amendment. It the intention of the Legislature has been to allow the unabsorbed depreciation allowance worked out in assessment year 1997-98 only for eight subsequent assessment years even after the amendment of section 32(2) by Finance Act, 2001, it would have incorporated a provision to that effect. However, it does not contain any such provision. Hence, a purposive and harmonious interpretation has to be taken keeping in view the purpose of amendment of section 32(2). While construing taxing statutes, rule of strict interpretation has to be applied, giving fair and reasonable construction to the language of the section without leaning to the side of assessee or the revenue. But if the Legislature fails to express clearly and the assessee becomes entitled for a benefit within the ambit of section by the clear words used in section, the benefit accruing to the assessee cannot be denied. However, Circular No. 14 of 2001 had clarified that under section 32(2), in computing the profits and gains of business or profession for any previous year, deduction of depreciation under section 32 shall be mandatory. Therefore, the provisions of section 32(2) as amended by Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -98 upto the A.Y. 2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever. The relevant part of the decision of the Co-ordinate Bench of the ITAT decided in the case of Gujarat Lease Finance Ltd. vide ITA No. 2393/Ahd/2013 dated 03/05/2017 is reproduced as hereunder:- 6. We have heard the rival contentions. We have also perused the judicial pronouncement delivered by the Hon ble High Court of Gujarat in the case of General Motors India (P.) Ltd vs. DCIT (2012) 25 taxmann.com which was elaborated in detail by the Ld. CIT(A) in his order as supra in this order. We have also perused the judicial pronouncement of Hon ble Gujarat High Court in the case of CIT vs. Gujarat Themis Biosyn Ltd. [2014] 44 taxmann. com 204 (Gujarat) in which after considering the judgment given in General Motors India (P) Ltd, it was held that carry forward of unabsorbed depreciation concerning impugned assessment years could be set off in subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.s.147 has been made on 20/03/2015 assessing the total income at ₹ 9,63,53,074/- Thereafter the High Court of Gujarat has set aside the assessment to the assessing officer. The assessing officer has completed the set a side assessment on 17/08/2015 by making an addition of ₹ 20,78,065/- in respect Agmark charges claimed by the assessee. The assessing officer observed that Agmark charges is of the nature of capital expenditure having benefit to the assessee for several years therefore the same was not admissible as revenue expenditure within the meaning of section 37(1) of the act. He has classified these as a capital expenditure under the provisions of section 32(i)(ii) as intangible assets carrying depreciation at 25% of the cost/expenses. Consequently, the assessing officer has disallowed the expenses to the extent of ₹ 20,78,065/- (27,70,189-6,92,124/-) after allowing the admissible depreciation at 25%. 9. Aggrieved assessee filed appeal before the ld. CIT(A). The ld. CIT(A) sustained the addition made by the assessing officer by observing as under:- 5.1 The second ground of appeal is against the additions of ₹ 20,78,065/- made by the AO by con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be allowed. Therefore, the appeal of the assessee is dismissed on this issue. Reopening of assessment u/s. 147 11. The first ground of appeal of the assessee is against the reopening of assessment u/s. 147 of the act. It is stated that that all facts and relevant details have already been scrutinized at the time of original assessment 143(3) therefore, reopening of assessment u/s. 147 of the act was totally bad in law. The assessee has filed appeal on this issue before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessse by observing as under:- DECISION : 5. I carefully considered the submissions of the appellant and the assessment order. The first ground of appeal is against the re-opening of assessment u/s 147 of the Act. On going through the submission of the appellant in this regard, the contention of the appellant are not found acceptable for the reasons that the appellant has challenged the assessment order passed by the AO u/s 143(3) r.w.s. 147 of the Act dtd. 20-03-2015 before the Hon'ble High Court of Gujarat, Ahmedabad. The Hon'ble High Court of Gujarat, Ahmedabad set aside the assessment order with a direction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16/09/2014, which is not appreciated at all by the A.O. It is submitted that the same may be considered now and Hon'ble ITAT may please direct the A.O. to reduce the income for the year to that extent accordingly. It be so held now. 13. Assessee has given donation of ₹ 11 lacs during the year under conbsideration which was wrongly added back given by the assessee to the income of the year under consideration. The assessee has filed application for rectification which was rejected by the assessing officer stating that there was no apparent mistake from record. 14. Aggrieved assessee filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee by observing as under:- 7. The fourth ground of appeal is against not rectifying the mistake apparent from the record by the A.O. with regard to donation of ₹ 11 lakhs given by the appellant. On going through the enclosures with Form no. 35 and submission of the appellant, there is no order u/s 154 of the Act passed by the A.O. on record. Even if such order is passed by the A.O. rejecting the appellant's claim, another /appeal against such order should have been filed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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