Appeal details
Counselvise Citation
[2021] 108 COUNSELVISE.COM (IT) 2005 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 5 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
02-06-2021
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Assessment Year
2001-2002
Appeal Filed On
23-12-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI M. BALAGANESH , ACCOUNTANT MEMBER ITA NO. 7886 /MUM/2019 ASSESSMENT Y EAR: 2001 - 02 ITA NO. 7887/MUM/2019 ASSESSMENT Y EAR: 2003 04 & ITA NO. 7 888/MUM/2019 ASSESSMENT Y EAR: 2005 - 06 ASSISTANT COMMISSIONER OF INCOME TAX 14 (2) (2), ROOM NO. 461, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MARINE LINES, MUMBAI - 400020 VS. M/S NUVOCO VISTAS CORPORATION LTD., (FORMERLY KNOWN AS LAFARGE INDIA PVT. LTD.), 4 TH FLOOR, TOWER - 3, EQUINOX BUSINESS PARK, L B S ROAD, KURLA (WEST), MUMBAI - 400070 PAN: AAACL4159L (APPELLANT) (RESPONDENT) REVENUE BY : SHRI THARIAN OOMMEN (D R) ASSESSEE BY : SHRI MADHUR AGRAWAL ( A R ) DATE OF HEARING: 05 /05 /20 21 DATE OF PRONOUNCEMENT: 02 / 0 6 /202 1 O R D E R PER SAKTIJIT DEY , JM THE CAPTIONE D APPEALS BY THE REVENUE ARISE OUT OF THREE SEPARATE ORDERS , ALL DATED 30.09.2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) 22, MUMBAI FOR THE ASSESSMENT YEARS 2001 - 02, 2003 - 04 AND 2005 - 2006. 2. THE GROUNDS RAISED BY THE REVENUE ARE IDENTICAL IN ALL THESE APPEAL S AND RELATE TO THE COMMON ISSUE OF ALLOWANCE OF ASSESSEES CLAIM OF DEPRECIATION ON GOODWILL. 2 ITA NO S . 7886 - 7888 / MUM/2019 ASSESSMENT YEAR S : 2001 - 02, 2003 - 04 & 2005 - 06 3. BRIEFLY THE FACTS ARE , THE ASSESSEE , EARLIER KNOWN AS LAFARGE INDIA PVT. LTD. , IS ENGAGED IN MANUFACTURE AND SALE OF CEMENT AND ALLIED PRODUCTS . THOUGH, IN THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2001 - 02 THE ASSESSEE DID NOT CLAIM ANY DEPRECIATION ON GOODWILL, HOWEVER, IN COURSE OF ASSESSMENT PROCEEDING, THE ASSESS FILED A REVISED COMPUTATION CLAIMING DEPRECIATION. THE A SSESSING OFFICER , THOUGH , AGREED THAT THE ASSESSEE IS E NTITLED TO CLAIM DEPRECIATION ON GOODWILL I N VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF CIT VS. SMIF SECURITIES LTD. ( 348 ITR 302 ) AND THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF TAJ SAT AIR CATERING LTD . VS. CIT (211 TAXMANN 84 ) . HOWEVER, HE DISALLOWED ASSESSEES CLAIM ON THE GROUND THAT THE ASSESSEE HAS NOT MA DE SUC H CLAIM IN THE RETURN OF INCOME . W HILE DOING SO , HE RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE IN DIA LTD. (2006) 84 ITR 323 (SC). THE A SSESSING O FFICER FOLLOWED UP WITH OF SIMILAR DISALLOWANCE IN ASSESSMENT YEAR S 2003 - 04 AND 2005 - 06. THE ASSESSEE CONTESTED THE DISALLOWANC E OF DEPRECIATION BEFORE THE LEARNED COMMISSIONER (APPEALS) . A FTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD LEARNED COMMISSIONER (APPEALS) ALLOWED ASSE SSEES CLAIM BY HOLDING THAT THE ASSESSEE CAN MAKE A CLAIM OF DEDUCTION IN COURSE OF ASSESSMENT PROCEEDINGS. IN THIS CONTEXT HE RELIED UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. M/S PRU THVI BROKER S & SHAREHOLDERS PVT. LTD . (349 ITR 336) . 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON A READING OF THE OBSERVATIONS OF THE A SSESSING O FFICER I N THE IMPUGNED ASSESSMENT ORDER, I T IS VERY MUCH CLEAR THAT HE DOES NOT DENY THE FACT THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEPRECIATION O N GOODWILL IN VIEW OF THE DECISION OF THE HONBLE SUPRE ME COURT IN CASE OF CIT VS. SMIF SECURITIES LTD.(SUPRA) . THE ONLY REASON FOR DISALLOWANCE IS , THE ASSESSEE HAS NOT CLAIMED SUCH DEDUCTION IN THE RETURN OF INCOME. IN FACT, THE GROUNDS RAISED BY THE REVENUE ARE ALSO TO THE SIMILAR EFFECT. NOW, IT IS FAIRLY WELL SETTLED EVEN IF THE ASSESSEE BY MISTAKE OR INADVERTENT LY HAS NOT CL AIMED A LEGITIMATE DEDUCTION IN 3 ITA NO S . 7886 - 7888 / MUM/2019 ASSESSMENT YEAR S : 2001 - 02, 2003 - 04 & 2005 - 06 THE RETURN OF INCOME , WHICH IS OTHERWISE AVAILABLE, ASSESSEE CAN CLAIM SUCH DEDUCTION NOT ONLY IN COURSE OF ASSESSMENT PROCEEDINGS BUT EVEN BEFORE THE APPELLATE AUTHORITY. THE DECISION OF THE HONBLE JURISDICTIONAL H IGH COURT (SUPRA) RELIED UPON BY THE LEARNED COM MISSIONER (APPEALS) CLEARLY LAYS DOWN SUCH PROPOSITIO N. THEREFORE, KEEPING IN VIEW THE SETTLED LEGAL POSITION ON THE ISSU E, WE UPHOLD THE DECISION OF LEARNED COM MISSIONER (APPEALS). ACCORDINGLY , GROUNDS ARE DISMISSED. 5. IN THE RESULT, APPEAL S FILED BY THE REVENUE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JUNE , 2021 . SD/ - SD/ - ( M. BALAGANESH ) ACCOUNTANT MEMBER ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 02 / 0 6 /202 1 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
