TMI Blog2018 (6) TMI 1687X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent : Shri Jayant Kumar, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of Dispute Resolution Panel-I, Mumbai, [in short DRP ] in Objection No. 98 dated 26.12.2016. The Assessment was framed by the Dy. Commissioner of Income Tax-9(3)(1), Mumbai (in short DCIT ) for the assessment year 2012-13 vide order dated 31.01.2017 under section 143(3) read with section 144C(13) of the Income Tax Act, 1961(hereinafter the Act ). 2. The only issue in this appeal of assessee is against the order of DRP and AO in disallowing the depreciation of goodwill. For this assessee has raised the following ground: - 1. Depreciation On Goodwill Resulting From A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iating facts of the present case. 1.5 Without prejudice, and in any case DRP erred is not apportioning purchase consideration (i.e. ₹ 1,59,01,00,000) towards various Intangible Assets acquired on the acquisition of business unit of Lee Muirhead Pvt. Ltd. In A.Y. 200809 and granting depreciation on the same. 1.6 On the facts and in the circumstances of the case and in law, the learned A.O. has erred in holding that the ratio laid by the Hon'ble Supreme Court in case of Smifs Securities Ltd. (348 ITR 302) is not applicable in the present case and consequently erred in disallowing depreciation on intangible assets including goodwill. 1.7 On the facts and in the circumstances of the case and in law, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of business rent of Lee and Muirhead Pvt. Ltd. in the FY 2007-08 relevant to AY 2008-09. 4. At the outset, the learned Counsel for the assessee stated that this issue is fully covered by Tribunal s decision in assessee s own case for AY 2009-10 in ITA No. 2146/Mum/2015 vide order dated 25.07.2016, wherein Tribunal following the decision of Hon ble Supreme Court in the case of CIT vs. Smifs Securities Ltd. 348 ITR 302 (SC) deleted the disallowance of depreciation by observing in Para 6 as under: - 6. We find from the record that the assessee has rightly claimed depreciation on goodwill being intangible assets. We also find from the record that similar issue was raised by the assessee in the assessment year 2008-09, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value apportioned to fixed assets and net current asset has been recognised as goodwill in the nature of intangible asset and the assessee had claimed depreciation both on tangible and intangible assets. As it appears, in the original return of income the assessee claimed depreciation on all other fixed assets except the intangible asset viz. goodwill. In the course of assessment proceedings, the assessee filed a revised computation of income claiming depreciation @ 25% amounting to ₹ 39,75,25,000 on intangible asset of ₹ 159.01 crore. On a perusal of assessment order, it is observed, the only reason for which the Assessing Officer disallowed assessee s claim of depreciation on goodwill is the claim has not been made through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Supreme Court in Goetze India Ltd., it becomes clear that the appellate authority can entertain a fresh claim of deduction by assessee, if the facts relating to such claim are available on record. If we examine the facts relating to assessee s claim of depreciation on intangible asset, it is apparent that all facts relating to the payment made towards goodwill are available in the annual report of the assessee submitted along with the original return of income. In fact, goodwill appears in the schedule of fixed assets. Thus, it is obvious that due to inadvertent mistake, the assessee could not claim depreciation on goodwill. Therefore, in the course of assessment proceedings, the assessee filed a revised computation claiming depreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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