TMI Blog2019 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... d set off against the business income of amalgamated company. A perusal of order dated 12-04-2013 passed by the AO giving effect is ambiguous in specifying the conditions as envisaged u/s. 72A(2) that are not complied with. Similarly, in the impugned order the findings of CIT (Appeals) are cryptic on this issue. It is not emanating either from the order of AO or from the order of CIT(Appeals) the conditions set out u/s. 72A that have been complied/not complied by the assessee. Assessee has brought to our notice that the Revenue is approaching the BIFR for modification of scheme for which the liberty has been granted by the Hon ble Apex Court. Thus, we deem it appropriate to restore this issue to the file of AO to decide the same afresh by passing speaking order after considering the revised directions of BIFR, if any and after affording reasonable opportunity of hearing to the assessee, in accordance with law. Hence, ground No. 2 of the appeal is allowed for statistical purpose. Addition on account of depreciation on non compete fees - no claim of deprecation was made in return - HELD THAT:- Assessee in return of income for the impugned assessment year has not claimed de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons assailed. In the meantime the Assessing Officer vide order dated 12-04-2013 passed the order giving effect to the order of Commissioner of Income Tax (Appeals). However, while giving effect the Assessing Officer disallowed assessee s claim of : (i) Carry forward of unabsorbed depreciation pertaining to assessment years 1993-94 to 1999-2000; (ii) Carry forward losses of amalgamating company M/s. Orient Vegetexpro Limited u/s. 72A of the Act; and (iii) Depreciation claim in respect of non-compete fees (an intangible asset). Aggrieved against the order of Assessing Officer in not giving effect to the order of Commissioner of Income Tax (Appeals) in letter and spirit, the assessee filed appeal before the Commissioner of Income Tax (Appeals). In second round of appeal, the Commissioner of Income Tax (Appeals) allowed the appeal of assessee in toto. Now, the Revenue is in appeal before the Tribunal assailing the findings of Commissioner of Income Tax (Appeals) by raising following grounds : 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of brought forward business loss of amalgamating company M/s. Orient Vegetexpro Limited to be set off against business income of assessee. The Assessing Officer rejected the assessee s claim as the conditions laid down in section 72A(2) were not fulfilled by the assessee. The Commissioner of Income Tax (Appeals) without appreciating the findings of Assessing Officer has allowed the claim of assessee. 4. On the other hand Shri Prashant Maheshwari appearing on behalf of the assessee vehemently defended the impugned order. The ld. AR submitted that unabsorbed depreciation of assessment years 1993-94 to 1999-2000 claimed by the assessee has been rightly allowed by the Commissioner of Income Tax (Appeals) by following the decision of Hon ble Gujarat High Court in the case of General Motors India (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported as 82 DTR 304. The ld. AR further submitted that the Special Bench decision rendered in the case of Deputy Commissioner of Income Tax Vs. Times Guaranty Limited (supra) has been reversed by the Hon ble Bombay High Court in Income Tax Appeal No. 841 842 of 2011 vide order dated 03-08-2018. The ld. AR filed a copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on account of depreciation on non compete fees, the ld. AR submitted that the assessee has paid non compete fees of ₹ 1,30,00,000/- to Teera Technologies (P) Ltd. during the period relevant to the assessment year 2006-07. The Commissioner of Income Tax (Appeals) held that the assessee is eligible to claim depreciation @ 25% on intangible asset in assessment year 2006-07. The Assessing Officer following the order of Commissioner of Income Tax (Appeals) allowed depreciation @ 25% in the assessment year 2007-08. In the return of income for assessment year 2008-09, the assessee did not claim depreciation on intangible asset (Noncompete fee) as the return of income was filed prior to the receipt of order of Commissioner of Income Tax (Appeals) for assessment year 2006-07. The assessee for the first time made claim of depreciation on intangible asset during the assessment proceedings for assessment year 2008-09. However, the same was rejected. The assessee thereafter raised the issue of depreciation on intangible asset before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) held that non compete fees does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find any infirmity in the impugned order on this issue. Accordingly, ground No. 1 of the appeal by Revenue is dismissed being devoid of any merit. 6. In ground No. 2 of the appeal, the Revenue has assailed assessee s claim of carry forward of unabsorbed business loss of amalgamating company M/s. Orient Vegetexpro Limited and set off of the same against business income of assessee. The provisions of section 72A(2) lays down certain conditions to be complied with before the accumulated loss/unabsorbed depreciation of amalgamating company are carried forward and set off against the business income of amalgamated company. A perusal of order dated 12-04-2013 passed by the Assessing Officer giving effect is ambiguous in specifying the conditions as envisaged u/s. 72A(2) of the Act that are not complied with. Similarly, in the impugned order the findings of Commissioner of Income Tax (Appeals) are cryptic on this issue. It is not emanating either from the order of Assessing Officer or from the order of Commissioner of Income Tax (Appeals) the conditions set out u/s. 72A that have been complied/not complied by the assessee. Further ..... 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