TELEPERFORMANCE GLOBAL SERVICES P. LTD., MUMBAI V. PR CIT-5, MUMBAI

MA 382/MUM/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 3127 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: E
• Next Hearing Date: 20-06-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 18-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P.D CHOUGULE.
• Keywords: Depreciation; Additional depreciation; Principle of natural justice; Revision of order
• Section: 144; 143(3); 142(1); 263; 254(2); 48; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, “ E” BENCH MUMBAI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIALMEMBER M.A. No. 382 & 383/MUM/2023 (Arising out of ITA No. 976 & 977/MUM/2021, A.Ys.2013-14 & 2014-15) Teleperformance Global Service Pvt Ltd., Teleperformance Tower, Plot CST No. 1406, A/28 Mindspace, Goregoan (West), Mumbai – 400064. Vs. The Pr. CIT-5, Room No. 515, 5 th Floor, Aayakar Bhavan Maharshi Karve Road, Mumbai – 400020. स्थायी लेखा सं./जीआइआर सं.PAN/GIR No. AABCV2572L (अपीलाथी/Applicant) (प्रत्यथी/Respondent) Applicant by Shri J.D.Mistry and Shri KetanVed.AR Respondent by Shri. P.D Chougule.Sr.DR स ु नवाई की तारीख/Date of Hearing 14.06.2024 घोषणा की तारीख/Date of Pronouncement 05.09.2024 ORDER PER PAVAN KUMAR GADALE, JM: The assesse has filed these two miscellaneous applications (MA) in ITA No. 976 & 977/MUM/2021 for the A.Y. 2013-14 & 2014-15 seeking rectification of mistake apparent in the Hon’ble Tribunal order dated 04.01.2023. 2. Since the issues involved in these two miscellaneous applications are common and identical, hence are clubbed, heard and a consolidated order is passed. For the sake of 2 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai convenience, we shall take up the MA No.382/Mum/2023 for A.Y 2013-14 as a lead case and the facts narrated. 3. At the time of hearing, the Ld. AR submitted that the Hon’ble Tribunal has not considered the facts that the Assessing Officer has allowed the depreciation on goodwill in A.Y.2012-13, being the first year, which arise due to merger and subsequently formed part of Block Of Assets and whereas the Tribunal has erred in confirming the directions of Pr.CIT to Assessing Officer on the verification of depreciation claim on goodwill. Further the Ld.AR mentioned that the Hon’ble Tribunal has not considered the judicial decisions hence non consideration of judicial decisions cited before the bench is a mistake apparent from the record and prayed for rectification/ recall of the Honble Tribunal order. Per Contra, the Ld. DR supported the order of the Hon’ble Tribunal. 3. The assesse has raised the following grounds in miscellaneous application as under: “The Applicant states as follows:- 1. The consolidated Order dated 04 January 2023 passed by the Income-tax Appellate Tribunal ["Tribunal"] in the captioned appeal bearing ITA No. 976/Mum/2021 for the Assessment Year 2013-14 partially allowing the appeal filed by the Applicant, was received by the Applicant on 23 March 2023 - copy enclosed as "Appendix - A" (refer page Nos. 1 to 51 of this compilation). 2. By way of the said appeal, the Applicant had challenged the Order dated 30 March 2021 passed by the Principal Commissioner of Income-tax-5, Mumbai ['PCIT'] u/s. 263 of the 3 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai Income-tax Act, 1961 ['Act']. In the said appeal, the Applicant had raised five grounds of appeal, which are not reproduced here for the sake of brevity. 3. The present application relates to the ground Nos. 1, 2 and 4 of the appeal raised by the Applicant challenging the action of the PCIT for invoking the provisions of section 263 of the Act vis-à-vis allowability of depreciation claimed by the Applicant on the intangible assets. 4. In support of the grounds of appeal raised, the Applicant had filed a paper-book (Refer paperbook page Nos. 1 to 517). 5. In connection to the present application, the Applicant humbly and respectfully submits that the order of the Tribunal dated 4 January 2023 gives rise to the following mistakes which are apparent from the record; 5.1. The Applicant's preliminary argument though recorded but not adjudicated (Ground No. 2.2) - 8.1.1. The Applicant submits that a specific ground being ground number 2.2. was raised by the Applicant in the ground of appeals stating that goodwill came into existence on amalgamation in AY 2012-13 and was considered a part of block of asset in AY 2012- 13 itself. Also, the depreciation on the said goodwill was also claimed and allowed in the AY 2012-13. Thus, considering that the written down value of the said goodwill is forming a part of the opening block assets for the AY 2013-14, the claim of depreciation on the same cannot be challenged in AY 2013-14 being the subsequent year. Thereby, the Applicant submits that the said ground inadvertently not having been adjudicated by the Tribunal, gives rise to the mistake which is apparent from the record. 5.1.2. During the course of hearing before the Hon'ble Bench, as a preliminary argument, it was submitted that the depreciation on goodwill proposed to be disallowed by the CIT in the order passed under section 263 of the Act, claimed during the year under consideration was on the written down value ("WDV") of the block of intangible asset brought forward from the earlier year i.e. Assessment Year 2012-2013 and no new asset (goodwill) was acquired during the year under consideration. It was submitted that the goodwill arose in the 4 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai assessment year 2012-13 and depreciation for the said assessment year has been claimed by the Applicant and allowed by the Assessing Officer. Thus, the claim for depreciation for assessment year 2012-13 has become final. In the assessment year 2013-14 i.e. the relevant year, the claim was only on the opening WDV of the block of asset. 5.1.3. Further, it was submitted that as per the provisions of section 43(6) of the Act, written down value shall be considered of the entire block of intangible assets (including the goodwill) flowing from AY 2012-13 and depreciation cannot be disturbed in the second year, unless the amount of WDV is reduced as per section 43(6). Admittedly, the present case, does not fall in any of the categories mentioned being 'sold, discarded, demolished or destroyed' and, therefore, question of reducing the WDV does not arise. 5.1.4. Basis this factual pattern, it was argued that since the depreciation on the said goodwill claimed in the year of acquisition of the same i.e. Assessment Year 2012- 2013, has not been disturbed by the Assessing Officer, there can be no question of disallowance of the consequential depreciation on goodwill in the subsequent years. The said argument has been recorded by the Tribunal in para 12 as under "We find that, as per the amalgamation of SKR BPO and IGSPL all the assets and liabilities of these companies are merged with the assessee company and due to the excess value of the assets over liabilities has resulted in goodwill and was recorded in the balance sheet for the A.Y 2012-13 and the assessee has claimed the depreciation. The contentions raised by the Ld.AR that the AO has allowed the depreciation on goodwill on amalgamation in the A.Y 2012-13 and only on the Written down value, the assessee has claimed the depreciation as per the provisions of law. Further for A.Y 2015-16 there is no disallowance of depreciation but for A.Y 2016-17 the AO has made disallowance of claim of depreciation. The contentions of the Ld. AR are based on the accounting standards, submissions and merits of case on allowability of claim. Whereas, the Issues envisaged in the present case, to find that the AO has verified, examined and applied his mind on these aspects in the assessment proceedings has to be considered. On perusal of the information in the paper book, 5 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai we found that the assessee in compliance to notice u/s 142(1) of the Act has filed a reply placed at Page 290 to 330 of the paper book to mention that the submissions are also in respect of depreciation on goodwill along with other information vide letter dated 06.12.2016 placed at Page 290 of the paper book in particular on details of depreciation as under: b) Details of Depreciation The prime reason for increase in depreciation amount was due to merger of SKR BPO Services Pvt. Ltd, Intelenet global services pvt ltd. with Serco BPO Pvt. Ltd. in the previous year. Pursuant to merger all Fixed Assets of amalgamating entities are added to SBPO. IGSPL, an operating entity had huge Fixed Assets in its audited accounts which was transferred to SBPO pursuant to merger. In view of above, the claim of depreciation is higher in comparison with previous assessment year of SBPO. Moreover, we would also like to state that SBPO has not claimed depreciation at rates higher than what is prescribed under the Income Tax Act, 1961 or additional depreciation during the year under consideration. The details of additions to fixed assets are attached herewith as Annexure 2." 5.1.5. The Applicant submits that from the above it is clear, that the argument that the assessment year 2013-14 is not the first year of claim of depreciation and that the depreciation was claimed in assessment year 2012-13 and allowed. However, the Applicant submits that inadvertently, the said submission of the Applicant w.r.t. ground no. 2.2 of the memo of appeal that depreciation cannot be disallowed in subsequent year having been allowed in the first year, has not been adjudicated by the Tribunal. The Applicant submits that non-adjudication of a ground clearly gives rise to a mistake apparent from record and is required to be rectified under section 254(2) of the Act. 5.2. The decision cited during the course of hearing is not considered: 5.2.1. The Applicant submits that reliance was placed on the decision of the Mumbai Tribunal in the case of Bhavani Gems Private Limited vs. PCIT in ITA No. 766/M/2021 wherein the aforesaid proposition was upheld specifically in context of the powers of the CIT in invoking the provisions of section 263 of 6 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai the Act. A copy of the said decision was also handed over to the Hon'ble Bench and the Departmental Representative during the course of the hearing. 5.2.2. The Applicant submits that on the basis of this preliminary submission, the matter was heard without going into any further arguments. 5.2.3. The Applicant humbly submits that while deciding the captioned appeal, the Tribunal in its order firstly extracts the submissions made by the Applicant before the PCIT and the Order passed by the PCIT which was challenged in the appeal. Thereafter, in paragraph No. 10 of its Order on page Nos. 43, 44 and 45, the Hon'ble Bench encapsulates the arguments of the Applicant which were made in the submissions filed before the PCIT 5.2.4. Thereafter from page No. 45 onwards in paragraph No. 11, the Hon'ble Bench gives its findings on the matter. 5.2.5. Thereafter, on page No, 48 of its Order, the Hon'ble Bench proceeds to uphold the action of the PCIT of directing the Assessing Officer to verify the claim of depreciation on goodwill on the ground that no proper verification is done by the Assessing Officer during assessment and no finding is recorded in the assessment order. 5.2.6. It is submitted that while reaching its conclusion of upholding the invocation of provisions of section 263 on the issue, the Hon'ble Bench has inadvertently not considered: a. the specific argument made by the Applicant vis-à-vis the year under consideration being the 2nd year of claim of depreciation on the goodwill and/or the depreciation claim being made only on the opening written down value of the asset after granting depreciation in the 1st year of claim and, therefore, cannot be disallowed; and b. the decision of the coordinate Bench of the ITAT in the case of Bhavani Gems Pvt. Ltd. (supra) which was cited during the course of the hearing. 7 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai 5.2.7. It is therefore, submitted that the order of the Tribunal constitutes an error apparent on record which ought to be rectified. The Applicant submits that non-consideration of a decision of a co-ordinate bench which is on identical facts gives rise to mistake apparent from the record and is required to be rectified. The finding that Assessing Officer has not considered the issue during the assessment proceedings gives rise to mistake apparent from the record. 5.2.8. Further, in the Order, the Hon'ble Bench has (on page No. 48 of its Order around 11th line from the top) held that "the CIT has dealt on facts to prove that the AO has not applied his mind or made enquiries on the issue." In this regard, the applicant submits that as the matter was heard only on the preliminary argument, the submissions on the detailed enquiry and replies during the course of the assessment proceedings were not made although the details were available in the paper book. 5.2.9. The Applicant submits that, during the course of the assessment proceedings for AY 2013-14, the AO had specifically asked the Applicant to submit the reasons for claiming high depreciation. In response to the same, the Applicant had vide its letter dated 06 December 2016 submitted detailed reasoning for increase in the claim of depreciation which was on account of the merger (Refer page No. 290 to 293 of the paper-book). The Applicant further submits that at page No. 48 of the Order, the Tribunal notes that the Assessing Officer had called for information during assessment, which itself show that there is contradiction in the order of the Tribunal. 5.2.10. However, in the above referred Tribunal order, the Hon'ble Bench has, without considering the aforesaid letter dated 06 December 2016, proceeded on a factually incorrect basis that the claim of depreciation on the intangibles has not been verified by the Learned AO and, hence, the Learned AO has not applied his mind on the issue. Hence, the order of the Tribunal gives rise to mistake apparent from the record. 8 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai 5.3. The applicant further submits that the finding of the Tribunal that the assessing officer can consider disallowing depreciation in a subsequent year without disallowing the same in the year in which asset is added to the block of asset is contrary to the decisions of the Jurisdictional High Court in the cases of Sonic Biochem Extractions Pvt. Ltd. (Income Tax Appeal no. 2088 of 2013) and G.R. Shipping Ltd. (Income Tax Appeal No. 598 of 2009), and therefore gives rise to mistake which is apparent from the record. 5.4. Finding of Tribunal to hold that although information called for by the Assessing Officer but as there is no finding by the Assessing Officer, revision is justified is contrary to the decisions of the jurisdictional High Courts 5.4.1. The Tribunal at page No. 48 of the Order had held as under - "but in the assessment proceedings though the AO has called for the information there is no examination or verification of facts or findings by AO on the claim of depreciation on goodwill and subsequent carry forward of WDV. Accordingly, the matter needs to examined and verified and we do not find infirmity in the directions issued by the Pr.CIT to the assessing officer for verification of claim of depreciation on goodwill." 5.4.2. From the aforesaid, it is clear that the conclusion of the Tribunal is that, as there is no finding in the assessment order with respect to the issue of depreciation in goodwill, it must be concluded that there is no examination and verification of the issue and hence, revision is justified. The Applicant submits that the said conclusion is contrary to the following decisions of the jurisdictional High Court and hence, it gives rise to mistake apparent from the record. 5.4.3. In CIT v/s. Fine Jewellery (India) Ltd. [2015] 55 taxmann.com 514 (Bombay), the Hon'ble Court has held that when the assessee had responded to the queries raised by the Learned AO, this itself would be an indication of application of mind by the Learned AO while passing the order. The fact that the assessment order itself does not contain any discussion in 9 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai that regard, would not by itself indicate non application of mind to this issue by the Learned AO in view of specific queries made during the assessment proceedings. 5.4.4. In Idea Cellular Ltd. v/s. DCIT [2008] 301 ITR 407, the Hon'ble Bombay High Court has held that if a query is raised during assessment proceedings and responded to by the assessee, the mere fact that it is not dealt in the Assessment Order would not lead to a conclusion that no mind had been applied to it. 5.5. The copy of the order dated 31 March 2022 under section 144 r.w.s. 263 r.w.s. 144B submitted, is not considered 5.5.1. The Applicant respectfully submits that the AO has passed order dated 31 March 2022 under section 144 r.w.s. 263 r.w.s. 1448 of the Act. The said order is to give effect to the order passed by the PCIT under section 263 of the Act. The Applicant, relying on the said order, had submitted that the direction of the CIT pertaining to issues raised Ground No. 4 (viz. Excess depreciation an account of difference in closing WDV for AY 2012-13 and opening WDV for AY 2013-14 in case of goodwill and furniture & fixtures) has been verified by the Assessing Officer and no addition has been made by him. The said order was also submitted before the Bench of ITAT vide letter dated 18 July 2022 and it was submitted that the relief has been granted by the Assessing Officer to the said extent. 5.5.2. However, the Tribunal's order dated 04 January 2023 does not record the said facts and have merely directed the Learned AO to verify and allow the claim of depreciation on furniture & fixtures basis the WDV as per revised tax audit report, without appreciating that the same has already been done by the Assessing Officer. 6. The Applicant therefore prays that - 10 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai a. The Hon'ble Tribunal may be pleased to recall its Order dated 04 January 2023 on the ground of appeal No. 1 validity of order u/s 263, ground of appeal No. 2- disallowance of depreciation on intangibles and ground of appeal No. 4 Partial allowance of excess depreciation on account of difference in the opening and closing WDV in case of Goodwill. b. The Tribunal may be pleased to grant such further and other relief as the nature and circumstances so require. The Applicant further prays that it be given an opportunity to be heard on this application as well. The Applicant craves leave to add and/or modify and / or amend and / or alter and / or delete the aforesaid averments made in this application. 4. We find the Hon’ble Tribunal has dealt on the disputed issue in ITA No. 976 & 977/Mum/2021 dated 4- 01-2023 at Para 10 to 12 of the order as under: “10. At the time of hearing, the Ld. AR submitted that the AO has allowed the depreciation on goodwill as per the provisions of the Act. Whereas the Pr. CIT has only issued the directions and has not supported with any findings. The Ld.AR submitted that the Pr.CIT has erred in set aside the order of the A.O., which does not satisfy the twin conditions of erroneous and prejudicial to the interest of the revenue and direct the A.O to do a fresh assessment. The Ld.AR submitted that the explanation 2 to sec 263 of the Act ought to be considered only when the AO has not applied his mind, the facts are to be verified and no enquiry is conducted. The Ld. AR emphasized that the assessee has complied with the notices and the clarifications were filed. The A.O. has dealt on the facts in respect of the issues raised by the Pr.CIT but there are no observations in the assessment order. Further the Pr.CIT has erred in overlooking facts that the assessee has filed the written submissions before the lower authorities. The Ld.AR also emphasized that the A.O. having satisfied with the provisions of Act has allowed the claim of depreciation on goodwill and substantiated the submissions with the judicial decisions and factual paper book and prayed for allowing the 11 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai appeal. Contra, the Ld.DR supported the order of the Pr.CIT and made submissions on the application of the provisions and explanation2 to section 263 of the Act and the A.O has not taken the facts of the first year of amalgamation. 11. We heard the rival submissions and perused the material available on record. The Ld.AR contentions are that the order passed by the A.O. does not satisfy the twin conditions that (i) erroneous and (ii) prejudicial to the interest of the revenue. The Ld. AR further submitted that the Pr.CIT is of the opinion that the AO has not conducted enquiry on the claim of depreciation on Good Will. The A.O. has allowed the depreciation on goodwill which has arise on account of amalgamation in A.y.2012-13 and forms part of block of Asset and depreciation was claimed in the first year of amalgamation. Whereas the issue is in respect of claim of depreciation on intangible assets including the customers contract /customers relation which is subject matter of dispute, the Pr.CIT is of the opinion that the AO has not verified these facts and has not applied his mind on these factual aspects. Further the Pr.CIT found that the assessee has claimed rent in the profit &Loss account which includes prior period expenses and is of the opinion that the prior period expenditure has to be disallowed. On the last disputed issue the Pr. CIT observed that M/s Intel Global Net Service Pvt Ltd which was subsequently merged has filed the service tax return disclosing the income receipts and interest receipts and certain credit card payments and hotel payments but no return of income was filed and the AO has not verified or examined these factual aspects before passing the assessment order. 12. We find that, as per the amalgamation of SKR BPO and IGSPL all the assets and liabilities of these companies are merged with the assessee company and due to the excess value of the assets over liabilities has resulted in goodwill and was recorded in the balance sheet for the A.Y 2012-13 and the assessee has claimed the depreciation. The contentions raised by the Ld.AR that the AO has allowed the depreciation on goodwill on amalgamation in the A.Y 2012-13 and only on the Written down value, the assessee has claimed the depreciation as per the provisions of law. Further for A.Y 2015-16 there is no disallowance of depreciation but for A.Y 2016-17 the AO has made disallowance of claim of depreciation. The contentions of the Ld. AR are based on the accounting standards, submissions 12 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai and merits of case on allowability of claim. Whereas, the Issues envisaged in the present case, to find that the AO has verified, examined and applied his mind on these aspects in the assessment proceedings has to be considered. On perusal of the information in the paper book, we found that the assessee in compliance to notice u/s 142(1) of the Act has filed a reply placed at Page 290 to 330 of the paper book to mention that the submissions are also in respect of depreciation on goodwill along with other information vide letter dated 06.12.2016 placed at Page 290 of the paper book in particular on details of depreciation as under: b) Details of Depreciation The prime reason for increase in depreciation amount was due to merger of SKR BPO Services Pvt. Ltd, Intelenetglobal services pvt ltd. with Serco BPO Pvt. Ltd. in the previous year. Pursuant to merger all Fixed Assets of amalgamating entities are added to SBPO. IGSPL, an operating entity had huge Fixed Assets in its audited accounts which was transferred to SBPO pursuant to merger. In view of above, the claim of depreciation is higher in comparison with previous assessment year of SBPO. Moreover, we would also like to state that SBPO has not claimed depreciation at rates higher than what is prescribed under the Income Tax Act, 1961 or additional depreciation during the year under consideration. The details of additions to fixed assets are attached herewith as Annexure 2 The assessee has submitted the statement of additions to the assets, prima-facie we found that the issue with respect of claim of depreciation on goodwill has been not considered or dealt in the course of hearing by the AO and shall have a far reaching effects though in some years the claim was allowed and was disallowed in other years. We found that the Pr.CIT has dealt on the facts to prove that the AO has not applied his mind or made enquiries on the issue. Whereas, the assessee has filed the details of claim of depreciation along with the list of additions in response to notice u/s 142(1) of the Act as referred above. But in the assessment proceedings though the AO has called for the information there is no examination or verification of facts or findings by AO on the claim of depreciation on goodwill and subsequent carry forward of WDV. 13 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai Accordingly, the matter needs to examined and verified and we do not find infirmity in the directions issued by the Pr.CIT to the AO for verification of claim of depreciation on goodwill” 5. Whereas the Ld.DR has filed a report of the assessing officer vide letter dated 29-05-2024 on the claim of depreciation on goodwill as under: “In this connection it is intimated that the undersigned has already furnished a report vide the letter dated 26.12.2023 wherein it has been submitted that in the assessment order dated 31.01.2017 passed under section 143(3) rws 144C(13) of the Act in the case of the above mentioned assessee for AY 2012-13 disallowance has been made in respect of claim of depreciation on goodwill of Rs 72,72,978/-. 2. Depreciation on goodwill arising out of amalgamation: The Draft assessment order dated 23.03.2016 u/s 143(3) rws 144C(1) of the Act in the case of the assessee for AY 2012-13 has been passed by the DCIT, Circle -4, Gurgaon and the final assessment order dated 31.01.2017 u/s 143(3) rws 144C(13) of the Act for AY 2012-13 has been passed by the ACIT, Circle - 12(2)(2), Mumbai. As the assessment proceedings in the case of the assessee for AY 2012-13 has not been conducted by this office and the same was conducted in offline mode (l.e. not in ITBA), therefore, the case record of the entire proceedings is not available at this office. It is seen from the available record that the assessee in the original Return of Income of AY 2012-13 has not claimed depreciation on goodwill arising out of amalgamation. In the original Return and Audit Report the only addition of goodwill during the year was in respect of business purchase from HYIT Knowledge System Pvt. Ltd. and the claim of depreciation of Rs 72,72,978/-on addition of goodwill for consideration for purchase of HYIT Knowledge System Pvt. Ltd. has been disallowed in the assessment order. The assessee has not filed the said revised Audit Report in 3CA for AY 2012- 13 in the e-filing portal of the Department. There is no evidence on record that the assessee has furnished the revised Audit Report of AY 2012-13 during the course of the assessment proceedings and has furnished details in respect of claim of 14 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai depreciation on goodwill arising out of amalgamation. Thus it is seen from the assessment details that the Assessing Officer has not examined the issue of depreciation on goodwill arising out of amalgamation during the assessment proceedings of AY 2012-13. The Assessing Officer has not discussed the issue of depreciation on goodwill arising out of the amalgamation in the above mentioned Assessment order of AY 2012-13 and thus the Assessing Officer has neither disallowed nor allowed the claim of depreciation on goodwill arising out of amalgamation. As per the ITBA Systems details, no order u/s 263 of the Act has been passed in the case of the assessee for AY 2012-13. The copy of draft assessment order u/s 143(3) rws 144C(1) of the Act and final assessment order under section 143(3) rws 144C(13) of the Act for AY 2012-13 are enclosed herewith. 3. The assessee has filed appeal against the Assessment Order dated 31.01.2017 u/s 143(3) rws 144C(13) of the Act for AY 2012-13 vide the ITA No. 2048/MUM/2017 and the Hon'ble ITAT has passed the order on 22.12.2023. 4. It is further submitted that the concept of 'res judicata' is not applicable in the Income Tax Proceedings. Therefore, whether the disallowance of claim of depreciation on goodwill arising out of amalgamation has been made or not in the assessment order of AY 2012-13 should not be taken as basis for determination of the issue of disallowance of claim of depreciation on goodwill arising out of amalgamation for the AY 2013-14 and AY 2014-15. 6. We heard the rival submissions and perused the material on record. We find that there is no clarity available from the information submitted by the revenue and the assesee on the claim of depreciation on goodwill allowed in the earlier years and also non consideration of judicial decisions cited before the bench is a mistake apparent from the record. Accordingly, in the interest of principles of natural justice, we recall the Hon’ble Tribunal order dated 4-01-2023 to the extent of examination and verification of claim of depreciation on goodwill and direct the 15 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai registry to post the appeal for regular hearing on this issue and inform both the parties. 7. In the result, the miscellaneous application filed by the assesse is partly allowed. M.A. No. 383/Mum/2023, A.Y 2014-15. 8. As the facts and circumstances in this miscellaneous application is identical to MA No 382/Mum/2023, for the A.Y 2013-14 (except variance in figures) and the decision rendered in above paragraphs would apply mutatis mutandis for the miscellaneous application also. Accordingly, the miscellaneous application filed by the assesse is partly allowed. 9. In the result, the miscellaneous applications filed by the assesse are partly allowed. Order pronounced in the open court on 05.09.2024. Sd/- Sd/- (PRASHANT MAHARISHI) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 05/09/2024 KRK Copy of the Order forwarded to: 1. The Appellant, 2. The Respondent 3. The CIT(A)- 4. CIT 16 M.A. No. 382&383/MUM/2023 Teleperformance Global Srvices Private lmited.Mumbai 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Dy./Asstt. Registrar)ITAT, Mumbai