Foodworld Supermarkets Pvt Ltd , Bangalore V. Deputy Commissioner of Income Tax Circle-3(1)(1), Bangalore

ITA 2073/BANG/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2312 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 26-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SIDDAPP A JI R N
• Keywords: Depreciation; Condonation of delay
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. JASON P. BOAZ , ACCOUNTANT MEMBER ITA NO. 2 0 7 3 /BANG/201 7 ASSESSMENT YEAR : 20 03 - 04 M/S. FOODWORLD SUPERMARKETS PVT. LTD., NO. 32/5, 2 ND FLOOR GANAPA TOWERS, NGR LAYOUT, ROOPENA AGRAHARA, BOMMANAHALLI, BENGALURU 560 068. PAN : AAAC F 4045 K VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1)(1), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. PADAM CHAND KINCH A, CA REVENUE BY : SHRI. SIDDAPPAJI R. N , ADDL. CIT DATE OF HEARING : 2 1 . 0 8 .201 8 DATE OF PRONOUNCEMENT : 07 . 0 9 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: 1. THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW AND LIABLE TO BE QUASHED. 2. THE LEARNED CIT(A) 3, BENGALURU HAS ERRED IN NOT CONSIDERING THE APPELLANT'S PRAYER FOR CONDONATION OF DELAY IN FILING THE APPEAL AND THEREBY ERRED IN NOT ADMITTING THE APPEAL. 3. ON FACTS AND CIRCUMSTANCES OF THE CASE AND LAW APPLICABLE, THE ORDER OF THE LEARNED CIT(A) IN NOT CONDONING THE DELAY IN FILING THE APPEAL AND NOT ADMITTING THE APPEAL AND CONSEQUENTLY DISMISSING THE APPEAL DESERVES TO BE SET ASIDE. 4. WITHOUT PREJUDICE, THE LEARNED CIT(A) HAS ERRED IN NOT ALLOWING DEPRECIATION CLAIMED UNDER SECTION 32 OF INCOME-TAX ACT, 1961 IN RESPECT OF INTANGIBLE ASSETS ITA NO. 2073/BANG/2017 PAGE 2 OF 3 COMPRISING OFF GOODWILL AND OTHER INTELLECTUAL PROPERTY RIGHTS, LICENSES ETC ACQUIRED UNDER THE BUSINESS PURCHASE AGREEMENT DATED 26.8.1999. 5. THE LEARNED CIT(A) 3, BENGALURU HAS ERRED IN NOT APPRECIATING THAT THE INTANGIBLE ASSETS ACQUIRED UNDER THE BUSINESS PURCHASE AGREEMENT DATED 26.8.1999 IS ELIGIBLE FOR DEPRECIATION AS PER SECTION 32 OF INCOME-TAX ACT, 1961. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW APPLICABLE, DEPRECIATION ON INTANGIBLE ASSETS ACQUIRED BY THE APPELLANT AS A PART OF PURCHASE OF THE UNDERTAKING SHOULD NOT BE DISALLOWED. 7. IN VIEW OF THE ABOVE AND OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE ORDER PASSED UNDER SECTION 250 BE QUASHED OR IN THE ALTERNATIVE DEPRECIATION INTANGIBLE ASSETS ACQUIRED UNDER THE BUSINESS PURCHASE AGREEMENT DATED 26.8.1999 BE ALLOWED AS A DEDUCTION TO THE APPELLANT; 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(A) HAS DISMISSED THE APPEAL BEING BARRED BY LIMITATION DECLINING THE CONTENTION OF DELAY AND THEREAFTER HE PASSED AN ORDER ON MERIT ENHANCING THE INCOME OF THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT ONCE THE CIT(A) HAS DISMISSED THE APPEAL BEING BARRED BY LIMITATION, HE HAS NO JURISDICTION TO ADJUDICATE THE APPEAL ON MERIT. ACCORDINGLY, ADDITION MADE BY THE CIT(A) IS SET ASIDE. 4. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A), WE FIND THAT CIT(A) HAS DISMISSED THE APPEAL BEING BARRED BY LIMITATION. THEREAFTER, HE HAS PROCEEDED TO ADJUDICATE THE ISSUE ON MERIT. THIS ACTION OF THE CIT(A) IS NOT PROPER AS ONCE HE DECLINES TO ADMIT THE APPEAL ON ACCOUNT OF DELAY, HE AS NO JURISDICTION TO PROCEED FURTHER TO ADJUDICATE THE ISSUES ON MERIT. THEREFORE, WE FIND NO MERIT IN THE FINDING OF THE CIT(A) GIVEN ON MERIT. HOWEVER, WE DO NO FIND ANY ERROR IN THE ORDER OF THE CIT(A) DECLINING THE REQUEST FOR CONDONATION OF DELAY AS THERE WAS SUBSTANTIAL DELAY ITA NO. 2073/BANG/2017 PAGE 3 OF 3 IN FILING OF THE APPEAL. ACCORDINGLY, THE ORDER OF THE CIT(A) WITH REGARD TO FINDING ON MERIT IS SET ASIDE AND ADDITION MADE ON ACCOUNT OF WHICH IS HEREBY DELETED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 7 TH SEPTEMBER, 2018. SD/- SD/- BANGALORE. DATED: 7 TH SEPTEMBER, 2018. /NS/ COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. ( JASON P BOAZ ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER