9911796707
TMI Blog2025 (2) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 226 of the Constitution of India, the petitioner has prayed for the following main reliefs :- "(b) Pass appropriate order issuing writ of certiorari and/or any other appropriate writ and/or pass appropriate order quashing and setting aside the Notice under Section 148 and Order under Section 148A (d) of the Income Tax Act dated 26.03.2024 passed by the Respondent -Authority." 3. The brief facts of the case are that the petitioner received a notice under Section 148A (b) of the Income Tax Act, 1961 (for short "the Act") dated 06.03.2024 calling upon the petitioner to show cause as to why the notice under Section 148 of the Act should not be issued for the Assessment Year 2018-19 along with the reasons for issuing the notice. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 681/-). It is clear that the amount of goodwill if any allowable to be recorded in the books of the assessee company is only to the extent it is recorded in the books of M/s Gujarat Apollo Industries Ltd (GAIL) before acquisition which is in complete contradiction with the recording of goodwill worth Rs.1,16,32,60,681/- by the assessee company. Hence the claim of depreciation by the assessee is clearly in violation of the explicit provisions of I.T Act. It was observed that the said intangible asset worth Rs. 53,17,57,633/- on which 25% depreciation i.e. Rs. 13,29,39,408/- had been claimed by the assessee was created by the assessee company during F.Y. 2013-14 on acquire of Gujarat Apollo Industries Ltd. The TPO had made upward adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggest that income chargeable tax of Rs.13,29,39,408/- has escaped assessment for the assessment year under consideration on the basis of the information available in this office 5. The petitioner filed reply to the aforesaid notice contending inter alia that the petitioner filed return of income claiming the depreciation on goodwill on the basis of the Written Down value of Rs. 53,17,57,633/- amounting to Rs. 9,20,15,737/- and not Rs. 13,29,39,408/- as mentioned in the notice. It was further contended that the petitioner has claimed the depreciation on goodwill which was being allowed pursuant to the orders passed by the Income Tax Appellate Tribunal in case of the petitioner for Assessment Year 2014-15. It was therefore submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance of depreciation on goodwill made by the learned AO during A.Y. 2016-17 is consequential disallowance. The disallowance of depreciation on goodwill made by the learned AO in A.Y. 2014-15 (being the base year) has been deleted by Hon'ble Ahmedabad Income Tax Appellate Tribunal (ITAT) in AIPL's case through order dated 3rd January 2022 (ITA No. 2262/Ahd/2018). 10. Further, the assessee has stated that although AIPL and GAIL and AEML may be considered as related parties under section 40(A)(2)(b) of the Act, the transaction of business transfer and the consideration agreed for the same was ultimately decided pursuant to the joint venture agreement. Therefore, in substance, the said transaction is not a transaction influenced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded in the books of M/s. Gujarat Apollo Industries Ltd (GAIL) before acquisition which is in complete contradiction with the recording of goodwill worth Rs. 1,16,32,60,681/- by the assessee company. Hence the claim of depreciation by the assessee is clearly in violation of the explicit provisions of I.T Act. 14. Against the order, the assessee had filed appeal before the ITAT and the ITAT has deleted the addition. However, Hon'ble ITAT has not decided the issue on facts of the case but decided on the applicability of Section 92BA (i) when the said section was omitted from the statute by the Finance Act, 2017 w.e.f. 01.04.2017. The Department has filed Tax Appeal before Hon'ble High Court of Gujarat vide Tax Appeal No. 459 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not applicable for the year under consideration and only because the Tribunal has not dealt with the merits of the matter, the same cannot be considered as an information, so as to assume the jurisdiction to issue the notice under Section148 of the Act more particularly when the Assessing Officer has failed to point out the effect of deletion of the addition made in the year 2014-15 and therefore, there is no question of escapement of income for the Assessment Year 2018-19 for claim of the depreciation on the Written Down value of the goodwill for the year under consideration. 8. Considering the above facts, the impugned order dated 26th March, 2024 as well as the notice issued under Section 148 of the Act are hereby quashed and set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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