M/s NXP India Private Limited , Bangalore V. Assistant Commmissioner of Income Tax Circle-5(1)(1), Bangalore

ITA 847/BANG/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9714 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-03-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Audit objection; Bonafide belief; Wrong claim; Difference of opinion; Reason to believe; Bonafide mistake; Change of opinion; Reassessment proceedings; Capital Gains
• Section: 143(3); 144C; 43; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER IT A NO . 847/ BANG / 2018 ASSESSMENT YEAR : 2009 - 10 NXP INDIA PRIVATE LIMITED (SUCCESSOR OF NXP SEMICONDUCTORS INDIA PVT. LTD.), INFORMATION TECHNOLOGY PARK, NAGAWARA VILLAGE, KASABA HOBLI, NAGAWARA, BANGALORE 560 045. PAN: AADCP 9454H VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 5(1)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S HRI VIKRAM VIJAYARAGHAVAN, A D VO CATE RESPONDENT BY : SHRI MUZAFFAR HUSSAIN, C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 01. 03. 2021 DATE OF PRONOUNCEMENT : 18 .0 3 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE CIT(APPEALS)-5, BENGALURU DATED 22.02.2019 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED THE PRELIMINARY GROUND O N THE REASSESSMENT PROCEEDINGS AS FOLLOWS:- 3. INITIATION OF REASSESSMENT PROCEEDINGS UNDER SE CTION 147 OF THE ACT IS WITHOUT AUTHORITY OF LAW AND JURISDIC TION ITA NO.847/BANG/2018 PAGE 2 OF 11 3.1 THE LEARNED CIT (A) HAS ERRED IN LAW & FACTS IN UPHOLDING THE ACTION OF THE AO IN INITIATING REASSESSMENT PRO CEEDINGS UNDER SECTION 147 OF THE ACT BEYOND THE PERIOD OF 4 YEARS, WHEN THE APPELLANT HAS FILED/ SUBMITTED/ DISCLOSED ALL REQUISITE FACTS AND MATERIAL DURING THE ORIGINAL AS SESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT 3.2 THE LEARNED CIT (A) HAS FAILED TO APPRECIATE TH AT THE INITIATION OF REASSESSMENT PROCEEDINGS WAS MADE BAS ED ON AUDIT OBJECTION, WHICH AMOUNTS TO CHANGE OF OPINION , THEREFORE THE ORDER IS NOT SUSTAINABLE UNDER LAW. 3.3 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN APPLYING PRINCIPLES IN THE CASE OF KALYANJI MAVJI & CO VS CIT (S) 102 ITR 287 WHILE UPHOLDING THE ACTION OF T HE AO SO FAR AS IT RELATES TO INITIATION OF REASSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT. 3.4 THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THA T THE ORDER PASSED BY THE LEARNED AO IS BAD IN LAW IN AS MUCH A S THE LEARNED AO HAS PASSED THE RE-ASSESSMENT ORDER WITHO UT DISPOSING OF THE OBJECTION OF THE ASSESSEE WHICH GO ES TO THE ROOT OF THE MATTER AND THEREFORE THE ORDER PASSED B Y THE LEARNED AO IS OUGHT TO BE QUASHED. 3.5 THE LEARNED CIT(A) AND THE LEARNED AO HAS ERRED IN FACTS IN NOT CONSIDERING THE RETURN FILED BY THE APPELLANT I N REPLY TO THE NOTICE UNDER SECTION 148 OF THE ACT. 3. THE ASSESSEE HAS ALSO FILED PETITION FOR ADMISS ION OF ADDITIONAL GROUNDS STATING THAT CERTAIN OBSERVATIONS OF THE CI T(APPEALS) CAME TO THE NOTICE OF ASSESSEE PURSUANT TO FILING OF THE APPEAL BEFORE THE TRIBUNAL WHICH WAS INADVERTENT BONAFIDE MISTAKE ON THE PART OF ASSESSEE AND PRAYED THAT THE SAME MAY BE ADMITTED FOR ADJUDICATI ON. THE ADDITIONAL GROUNDS ARE AS FOLLOWS:- 8. THE LEARNED AO/CIT(A) HAS ERRED IN LAW AND FACT S IN NOT GIVING THE BENEFIT OF SHORT TERM CAPITAL LOSS AMOUN TING TO ITA NO.847/BANG/2018 PAGE 3 OF 11 RS. 24,97,62,558 AS COMPUTED BY THE APPELLANT IN TH E RETURN OF INCOME. 9. THE LEARNED AO/CIT(A) HAS ERRED IN LAW AND FACTS BY NOT ALLOWING THE CARRY FORWARD OF SHORT TERM CAPITAL LO SS AMOUNTING TO RS. 24,97,62,558 AS CLAIMED IN THE RET URN OF INCOME BY THE APPELLANT. 10. THE LEARNED AO/CIT(A) HAS ERRED IN LAW AND FACT S IN ADDING THE APPORTIONED COST OF GOODWILL AMOUNTING TO RS. 32,76,86,270, TO THE INCOME OF THE APPELLANT, ARBIT RARILY WITHOUT ANY BASIS AND RATIONALE. 4. THE LD. DR OPPOSED ADMISSION OF ADDITIONAL GROUN DS. 5. WE HAVE HEARD BOTH THE PARTIES. IN OUR OPINION, THE UNDER A BONAFIDE BELIEF THAT IT HAD RAISED ALL THE GROUNDS BEFORE THE TRIBUNAL INADVERTENTLY COMMITTED AN ERROR IN NOT RAISING THE GROUNDS WHICH ARE NOW SOUGHT TO BE RAISED BY WAY OF ADDITIONAL GROUNDS. T HERE IS NO NECESSITY OF INVESTIGATION INTO FRESH FACTS SO AS TO ADJUDICATE THE SAME. ACCORDINGLY BY FOLLOWING THE HONBLE SUPREME COURT DECISION IN THE CASE OF NATIONAL THERMAL POWER CORPORATION V. CIT, 229 ITR 383 (SC), WE ADMIT THE ADDITIONAL GROUNDS FOR ADJUDICATION. 6. THE ASSESSEE FILED ITS ORIGINAL RETURN ON 30.9.2 009 DECLARING TOTAL INCOME OF RS.47,88,62,424 AND CLAIMED SHORT TERM CA PITAL LOSS OF RS.24,97,62,558 ON SLUMP SALE OF ITS WIRELESS DIVIS ION TO NF WIRELESS INDIA PVT. LTD. [NFWIPL]. ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 144C OF THE INCOME-TAX ACT, 1961 [THE ACT] ON 14.3.2013. T HE ASSESSEE WENT IN APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER BEFORE THE CIT(APPEALS). THE AO ISSUED FINAL ASSESSMENT ORDER ON 30.4.2013 WHERE IN THE FOLLOWING ADJUSTMENTS/DISALLOWANCES WERE MADE AFTER DUE VERIF ICATION OF THE SUBMISSIONS MADE BY THE ASSESSEE:- ITA NO.847/BANG/2018 PAGE 4 OF 11 (I) CONSIDERING NETWORKING EQUIPMENTS, ACTIVE COMPONENT S AND COMPUTER SERVER RACKS (OR 19 INCH HEAVY RACKS) AS PLANT AND MACHINERY INSTEAD OF COMPUTERS, APPLI ED LOWER RATE OF DEPRECIATION OF 15% ON THE ADJUSTED O PENING BALANCE, THUS DISALLOWING DEPRECIATION AMOUNTING TO RS.22,31,232. (II) TP ADJUSTMENTS AMOUNTING TO RS.281,131,440 PURSUANT TO THE ORDER OF TPO DATED 11.1.2013. 7. SINCE THE AO PASSED THE IMPUGNED ASSESSMENT ORD ER U/S. 143(3) R.W.S. 147 R.W.S. 254 OF THE ACT, THE ASSESSEE FILE D APPEAL BEFORE THE CIT(APPEALS). THE CIT(APPEALS) IN HIS EX PARTE DISMISSED ALL THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. AGAINST THIS, TH E ASSESSEE IS IN APPEAL BEFORE US. 8. THE ASSESSEES MAIN GRIEVANCE IS WITH REGARD TO INITIATION OF REASSESSMENT PROCEEDING U/S. 147 OF THE ACT WITHOUT ANY AUTHORITY OF LAW WHATSOEVER. IT WAS SUBMITTED THAT THE ASSESSMENT W AS REOPENED BY RECORDING THE FOLLOWING REASONS:- ' THE ASSESSEE COMPANY HAS MADE SLUMP SALE DURING THE YEAR TO M/S.N.F.WIRELESS INDIA PRIVATE LIMITED FOR A CONSID ERATION OF RS.13,96,91,650/-. AFTER MAKING ADJUSTMENT TOWARDS ASSETS AND LIABILITIES THE NET WORTH IS ARRIVED AT RS.38,94,54 ,208/-. IN THE COMPUTATION OF CAPITAL GAINS ON SLUMP SALE THE ASSE SSEE HAS REDUCED RS.38,94,54,208/-. IN THE COMPUTATION OF CA PITAL GAINS ON SLUMP SALE THE ASSESSEE HAS REDUCED RS.32,76,86270 /- BEING 'GOODWILL ALLOCATED BASED ON FORM 3CN'. AS PER THE LOCAL BUSINESS TRANSFER AGREEMENT DATED: 22.07.2008, GOOD WILL IS NOT TREATED AS A PART OF CONSIDERATION IN THE BUSINESS TRANSFER AGREEMENT. HENCE, THE ASSESSEE HAD MADE A WRONG CLA IM OF RS.32,76,86,370,1- AS GOODWILL IN THE COMPUTATION O F CAPITAL GAINS. 1 THEREFORE, HAVE REASON TO BELIEVE THAT INC OME OF RS.32,76,86,370/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT, IG6I WHICH REQUI RES RE- OPENING OF THE CASE. THEREFORE, I HAVE REASON TO BE LIEVE THAT ITA NO.847/BANG/2018 PAGE 5 OF 11 INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WIT HIN THE MEANING OF SECTION 147 OF THE INCOME-TAX ACT, 1961. 9. THE LD. AR SUBMITTED THAT ALL THE MATERIAL FACTS INCLUDING THE FINANCIAL STATEMENTS, TAX AUDIT REPORT, COMPUTATION OF SHORT TERM CAPITAL LOSS, COPY OF BUSINESS TRANSFER AGREEMENT, DETAILS OF ASSETS & LI ABILITIES OF SLUMP SALE, ETC. IN CONNECTION WITH SLUMP SALE OF WIRELESS DIVI SION TO NF INDIA WAS FURNISHED BY THE ASSESSEE DURING THE PROCEEDINGS AN D NO ADJUSTMENTS WERE MADE IN THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT IN THIS REGARD AFTER DUE SCRUTINY OF THE INFORMATION FILED. HOWEVER, THE ASSESSMENT WAS REOPENED MERELY BASED ON THE CHANGE OF OPINION ON THE SAME SET OF FACTS WHICH WERE ALREADY FURNISHED DURING THE SCRUT INY ASSESSMENT. SUBMIT THAT NO INCOME HAS ESCAPED ASSESSMENT AND THE REASO NS PROVIDED FOR INITIATION OF THE SUBJECT PROCEEDINGS UNDER SECTION 147 OF THE ACT ARE NOT VALID FOR TAKING UP THE CASE FOR REASSESSMENT. WITH OUT PREJUDICE TO THE MERITS OF THE CASE, IT WAS SUBMITTED THAT INITIATIO N OF REASSESSMENT PROCEEDINGS U/S. 147 OF THE ACT IS WITHOUT AUTHORIT Y OF LAW AND JURISDICTION. THE LD. AR RELIED ON THE FOLLOWING DECISIONS:- SI.NO. PARTICULARS REOPENING OF ASSESSMENT WITHOUT ANY NEW MATERIAL ON REC ORD OR WITHOUT REASONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IS INVAL ID 1. ITO VS. NAWAB MIR BARKAT ALI KHAN BAHADUR (1947) 97 ITR 239 (SUPREME COURT) 2. ASIAN PAINTS LIMITED VS DCIT AND ANOTHER (308 I TR 195) (BOMBAY HIGH COURT) 3. DCIT VS SUYASH CHEMICALS 2010 TIOL 128 ( MUMBAI ITAT ) 4. COCA-COLA EXPORT CORPORATION VS ITO AND ANR 231 ITR 200 (1998) (SUPREME COURT) 5. JAL HOTEL CO. LTD VS ADIT (2009) 184 TAXMAN 1 (DELH I HIGH COURT) 6. JINDAL PHOTO FILMS LTD VS DEPUTY CIT (1988) 234 ITR 170 (DELHI HIGH COURT) ITA NO.847/BANG/2018 PAGE 6 OF 11 REOPENING OF ASSESSMENT ON A MERE CHANGE OF OPINION IS INVALID 7. TECHSPAN INDIA PVT LTD V ITO (2006) 283 ITR 212 (DE LHI HIGH COURT) 8. CIT VS KELVINATOR OF INDIA LTD (2010) 320 ITR 561 ( SUPREME COURT) 9. LEGATO SYSTEM (INDIA) PVT LTD VS DCIT (2010) (187 T AXMAN 294) (DELHI HIGH COURT) 10. CIT VS RAMAKRISHNA HEGDE (326 ITR 347) (2010) (KARN ATAKA HIGH COURT) REASSESSMENT BASED ON AUDIT OBJECTION IS VOID AB IN ITIO 11. INDIAN AND EASTERN NEWSPAPER SOCIETY VS CIT (119 IT R 996) (SUPREME COURT) 12. RAJ RATNA METAL INDUSTRIES LTD VS ACIT (SLP NO. 7140 OF 2014) (GUJA RAT HIGH COURT) 13. COMMISSIONER OF INCOME TAX -12 VS DRM ENTERPRISES [ 2015] 55 TAXMANN 181 (BOMBAY HIGH COURT) REASSESSMENT BASED ON AUDIT OBJECTION IS VOID AB IN ITIO 14. INDIAN AND EASTERN NEWSPAPER SOCIETY VS CIT (119 IT R 996) (SUPREME COURT) 15. RAJ RATNA METAL INDUSTRIES LTD VS ACIT (SLP NO. 714 0 OF 2014) (GUJARAT HIGH COURT) 16. COMMISSIONER OF INCOME TAX -12 VS DRM ENTERPRISES [ 2015] 55 TAXMANN 181 (BOMBAY HIGH COURT) NOTICE FOR REASSESSMENT PROCEEDINGS ISSUED BEYOND E XPIRY OF FOUR YEARS IS TIME BARRED IN CASE OF NO FAILURE ON THE PART OF THE ASS ESSEE TO DISCLOSE FACTS 17. CIT VS FORAMER FRANCE [129 TAXMAN 72] (SUPREME COUR T) 18. CIT VS CORPORATION BANK LTD. (2002) 254 ITR 791 (SU PREME COURT) 19. S GANGA SARAN AND SONS PVT LTD VS ITO & ORS 3 SCC 1 43 (1981) (SUPREME COURT) 20. SUPREME TRAVERSE (P) LTD VS CIT & U013231TR 323 (20 09) (BOMBAY HIGH COURT) 21. HARYANA ACRYLIC MANUFACTURING COMPANY VS CIT 308 IT R 38 (2009) (DELHI HIGH COURT) 22. GUJARAT GINNING & MFG CO LTD VS CIT 108 ITR 674 (19 77) (GUJARAT HIGH COURT) 23. MODEPRO INDIA PRIVATE LIMITED VS DCIT (2010 TIOL 325 ITAT- MUM) (MUMBAI ITAT) 24. OIL AND NATURAL GAS CORPORATION LIMITED VS DCIT [26 2 ITR 648] (DELHI HIGH COURT) 25. COMMISSIONER OF INCOME TAX VS ELGI FINANCE LTD. (20 06) 286 ITR 674 (MADRAS HIGH COURT) ITA NO.847/BANG/2018 PAGE 7 OF 11 26. COMMISSIONER OF INCOME TAX VS CHAMUNDESWARI 2007 (2 90 ITR 580) (MADRAS HIGH COURT) 27. CIT VS S.R. CONSTRUCTION (257 ITR 502) (MADHYA PRAD ESH HIGH COURT) 28. MCDERMOTT INTERNATIONAL INC VS ADDITIONAL COMMISSIO NER OF INCOME TAX 259 ITR 138 (2003) (UTTARANCHAL HIGH COURT) ALLOWABILITY OF GOODWILL AS COST AGAINST SALE OF BU SINESS 29. CIT VS RAFFIUDDIN (242 ITR 57) (MADRAS HIGH COURT) 30. PARTHAS TRUST VS CIT (173 ITR 615) (KERALA HIGH COU RT) 31. ALPS TECHNOLOGIES VS DCIT (81 TAXMAN.COM 225) (GUJRAT HIGH COURT) 10. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT T HE APPELLANT HAS BEEN GIVEN AMPLE OPPORTUNITY TO APPEAR BEFORE CIT(APPEAL S). HOWEVER, NEITHER THE APPELLANT NOR ANY OF HIS REPRESENTATIVES APPEAR ED NOR FILED ANY SUBMISSIONS BUT TOOK ADJOURNMENT ON 4.8.2017 AND 20 .11.2017. NONE APPEARED FURTHER ON 28/08/2017 AND 04/12/2017. THE REAFTER A FINAL HEARING NOTICE DATED 21/12/2017 FIXING ON 02/01/2018 AT 11: 30 AM HAS ALSO BEEN ISSUED. HOWEVER, NEITHER THE APPELLANT NOR ANY OF H IS AR APPEARED NOR FILED ANY SUBMISSIONS AND ALSO NOT TOOK ADJOURNMENT ON TH E ABOVE MENTIONED DATES FOR APPEARING. SUBSEQUENTLY THE CIT(A)OFFICE CALLED THE APPELLANT MANY A TIMES TO APPEAR BEFORE BUT THE APPELLANT NEI THER HIMSELF NOR HIS AR APPEARED. IN VIEW OF THE SAME THE CIT(A) WAS OF THE OPINION THAT THE APPELLANT IS NOT SERIOUSLY INTERESTED IN PURSUING H IS APPEALS. THE LAW AIDS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP UPON /OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM VIGILANTIBUS NON DORMANTIBUS JURA SUB VENIUNT WHICH HAS BEEN FOLLOWED IN THE CASE OF CIT VS. MULTIPLAN INDIA LTD. REPORTED IN 38 ITD 320 BY THE HON'BLE DELHI HIGH COURT. THEREFORE, THE GROUNDS OF APPEAL SHOULD HAVE BEEN D ISMISSED FOR WANT OF PROSECUTION. HOWEVER, FOR THE ADVANCEMENT OF SUBSTA NTIAL CAUSE OF JUSTICE ITA NO.847/BANG/2018 PAGE 8 OF 11 AND EQUITY, THE GROUNDS RAISED BY THE APPELLANT WER E DECIDED ON MERITS BASED ON THE MATERIAL AVAILABLE ON RECORD. 11. THEREFORE, THE CIT(A) PASSED EX PARTE ORDER AFTER CONSIDERING THE MATERIAL ON RECORD. ON THE ISSUE OF RE-OPENING TH E ASSESSMENT, THE CIT(A) OBSERVED THAT THE CONDITION FOR REOPENING CAN BE ST ATED THAT THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME CHARGEABL E TO TAX HAS ESCAPED ASSESSMENT U/S.147. WHERE ASSESSMENT U/S.143(3) OR U/S.147 MADE EARLIER AND REOPENING IS DONE AFTER EXPIRY OF FOUR YEARS FR OM THE END OF THE RELEVANT ASSESSMENT YEAR REOPENING IS POSSIBLE ONLY IF INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT Y EAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETUR N U/S.139 OR IN RESPONSE TO NOTICE ISSUED U/S.142(1) OR U/S.148 OR TO DISCLO SE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. THE EX PRESSION 'HAS REASON TO BELIEVE' IS WIDER THAN 'IS SATISFIED' AS REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF BELIEF. 'INFORMATION' FOR REOPENIN G MAY COME FROM EXTERNAL SOURCES OR EVEN FROM MATERIALS ALREADY ON RECORD OR MAY BE DERIVED FROM THE DISCOVERY OF NEW AND IMPORTANT MATTER OR FRESH FACTS. WORD 'INFORMATION' WOULD ALSO INCLUDE TRUE AND CORRECT S TATE OF LAW DERIVED FROM RELEVANT JUDICIAL DECISIONS EITHER OF THE I.T. AUTH ORITIES OR COURTS OF LAW. TAXPAYER WOULD NOT BE ALLOWED TO TAKE ADVANTAGE OF AN OVERSIGHT OR MISTAKE COMMITTED BY THE TAXING AUTHORITY AS HELD I N THE CASE OF KALYANJI MAVJI & CO. VS CIT(S) 102 ITR 287 . THE BASIS FOR RE-OPENING OF THE ASSESSMENT WOULD CERTAINLY BE THE SOURCE OF INFORMA TION. WHEN AN INCOME LIABLE TO TAX HAS ESCAPED ASSESSMENT IN THE ORIGINA L ASSESSMENT PROCEEDINGS DUE TO OVERSIGHT AND INADVERTENCE OR A MISTAKE COMMITTED BY THE ITO, HE HAS JURISDICTION TO RE-OPEN THE ASSESSM ENT. REASSESSMENT IS PERMISSIBLE EVEN IF THE INFORMATION IS OBTAINED AFT ER PROPER INVESTIGATION FROM THE MATERIAL ON RECORD OR FROM ANY ENQUIRY OR RESEARCH INTO FACTS OR ITA NO.847/BANG/2018 PAGE 9 OF 11 LAW. INFORMATION NEED NOT BE FROM EXTERNAL SOURCE A S HELD IN THE CASE OF CIT & ANR VS. RINKU CHAKRABORTHY (KAR) 56 DTR 227 A ND KALYANJI MAVJI & CO. VS CIT(S) 102 ITR 287 . IN VIEW OF THE ABOVE DISCUSSION, THE CIT(APPEALS) WAS OF THE OPINION THAT THE ASSESSING OFFICER HAS GOT JURISDICTION IN REOPENING THE ASSESSMENT BY ISSUING THE NOTICE U/S.148 OF THE ACT AS THE COMMUNICATION RECEIVED BY THE ASSESS ING OFFICER IN DISCHARGE OF OFFICIAL DUTY IS INFORMATION FOR ISSUE OF NOTICE AND THEREFORE THE GROUND ON CHALLENGING THE RE-OPENING OF THE ASSESSM ENT WAS DISMISSED. 12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MAT ERIAL ON RECORD. IN THIS CASE, ORIGINAL ASSESSMENT WAS COMPLETED U/S. 1 43(3) OF THE ACT FOR THIS AY 2009-10 AND DRAFT ASSESSMENT ORDER WAS PASSED ON 14.3.2013. THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS). THE REAFTER, THE AO PASSED FINAL ASSESSMENT ORDER ON 30.4.2013. THE ASSESSEE FILED APPEAL AGAINST THIS ORDER BEFORE THE CIT(APPEALS) ON 12.6.2013 WIT H REGARD TO ADJUSTMENT MADE BY THE AO ON THE TP ISSUE. THE CIT(APPEALS) V IDE HIS ORDER DATED 20.10.2004 UPHELD THE TP ADJUSTMENT MADE BY THE AO, HOWEVER, HE DIRECTED THE AO TO GRANT DEPRECIATION AT THE PRESCR IBED RATE APPLICABLE TO FURNITURE & FITTINGS IN RESPECT OF SERVER RACKS, H OWEVER WITH REGARD TO DEPRECIATION ON NETWORKING EQUIPMENT/ACTIVE COMPONE NTS ETC., THE CIT(APPEALS) DECIDED THE ISSUE IN FAVOUR OF ASSESSE E ALLOWING DEPRECIATION @ 60% AGAINST WHICH THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL. 13. WITH REGARD TO NON-GRANT OF DEPRECIATION ON THE BASIS OF ADDITIONAL GROUND IN RESPECT OF DEPRECIATION ON GOODWILL WHICH WAS ACQUIRED BY NXP INDIA FROM PHILIPS ELECTRONICS INDIA LTD. AND CONEX ANT INDIA AT THE TIME OF SLUMP SALE, THE ASSESSEE FILED APPEAL BEFORE THE TR IBUNAL. 14. THE TRIBUNAL VIDE ORDER DATED 12.8.2015 AND 22. 7.2015 REMANDED THE MATTER BACK TO THE FILE OF AO FOR FRESH CONSIDE RATION. IN THE MEANWHILE, ITA NO.847/BANG/2018 PAGE 10 OF 11 THE AO VIDE NOTICE DATED 22.3.2016 INITIATED REASSE SSMENT PROCEEDINGS U/S. 148 OF THE ACT FOR THIS AY 2009-10, PURSUANT T O WHICH THE ASSESSEE FILED RETURN OF INCOME ON 23.4.2016 REQUESTING THE AO TO PROVIDE REASONS FOR INITIATING REASSESSMENT PROCEEDINGS. THE AO VI DE LETTER DATED 27.10.2016 INFORMED THE ASSESSEE THAT REASSESSMENT PROCEEDINGS WERE INITIATED AS PER BTA DATED 22.7.2008 BETWEEN THE AS SESSEE AND NF INDIA, GOODWILL IS NOT TREATED AS PART OF CONSIDERATION, H ENCE THE ASSESSEE MADE A WRONG CLAIM OF DEDUCTING THE GOODWILL AMOUNTING TO RS.32,76,86,270 FROM THE SALE CONSIDERATION RECEIVED. THE ASSESSEE FILE D OBJECTIONS AGAINST THE REASSESSMENT PROCEEDINGS VIDE LETTER DATED 13.12.20 16 QUESTIONING THE VALIDITY OF THE PROCEEDINGS. HOWEVER, THE AO OVERL OOKING THE OBJECTION OF THE ASSESSEE, PASSED COMBINED ASSESSMENT ORDER GIVI NG EFFECT TO THE ITAT ORDER DATED 22.7.2015 AND 12.8.2015 AND THE REASSES SMENT ORDER ON 29.12.2016. AGAINST THIS, THE ASSESSEE FILED APPEA L BEFORE THE CIT(APPEALS). THE CIT(APPEALS) ALSO DISPOSED OF THE APPEAL BY THE IMPUGNED ORDER DATED 22.2.2018. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 15. AFTER GOING THROUGH THE RECORDS, WE ARE OF THE OPINION THAT THE AO PASSED A COMBINED ORDER GIVING EFFECT TO EARLIER OR DERS OF TRIBUNAL WITH REGARD TO ORIGINAL ASSESSMENT AND ALSO REASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT WHICH IS INCORRECT. THE AO M UST HAVE PASSED DISTINCT AND SEPARATE ORDERS GIVING EFFECT TO THE TRIBUNALS ORDERS WHICH IS EMANATING FROM THE ASSESSMENT ORDER PASSED U/S. 143 (3) AND FRESH REASSESSMENT ORDER WHICH IS EMANATING FROM REASSESS MENT NOTICE DATED 23.3.2016. AS SUCH, WE VACATE THE COMBINED ASSESSM ENT ORDER DATED 29.12.2016 PASSED U/S. 143(3) R.W.S. 147 R.W.S. 254 OF THE ACT AND DIRECT THE AO TO PASS DISTINCT AND SEPARATE ASSESSMENT ORD ERS ONE IN RESPECT OF ORDER GIVING EFFECT TO THE TRIBUNALS ORDERS EMANAT ING FROM THE ASSESSMENT ITA NO.847/BANG/2018 PAGE 11 OF 11 ORDER U/S. 143(3) AND ANOTHER IN RESPECT OF REASSES SMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT. ACCORDINGLY, THE ISSUE IN D ISPUTE IS REMITTED IN ITS ENTIRETY TO THE FILE OF ASSESSING OFFICER TO PASS S EPARATE ASSESSMENT ORDERS AS DIRECTED ABOVE, AFTER GIVING OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 16. SINCE WE HAVE REMITTED THE ISSUE IN ITS ENTIRET Y TO THE FILE OF ASSESSING OFFICER FOR PASSING DISTINCT AND SEPARATE ORDERS AS ABOVE, WE REFRAIN FROM GOING INTO GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE US. 17. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF MARCH, 2021. SD/- SD/- ( N V VASUDEV AN ) ( CHANDRA POOJARI ) VICE PRESIDEN T ACCOUNTANT MEMBER BANGALORE, DATED, THE 18 TH MARCH, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.