THERMO FISHER SCIENTIFIC INDIA P.LTD, MUMBAI V. DCIT 10(3), MUMBAI

MA 632/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7769 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THARIAN OOMMEN
• Keywords: Depreciation; Rectification of order; Unabsorbed depreciation; Capital expenditure
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J , MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER MA NO. 632/MUM/2019 (OUT OF ITA NO. 2701/MUM/2014) : A.Y : 2009 - 10 THERMO FISHER SCIENTIFIC INDIA PVT. LTD., 403 - 404 B WING, DELPHI HIRANANDANI BUSINESS PARK, MUMBAI 400 076. PAN : AABCT3207A (APPLICANT) VS. DY. COMMISSIONER OF INCOME TAX 10(3), MUMBAI. (RESPONDENT) APPLICANT BY : SHRI NIRAJ SHETH RESPONDENT BY : SHRI THARIAN OOMMEN DATE OF HEARING : 12/03/2021 DATE OF PRONOUNCEMENT : 12/03/2021 O R D E R PER SHAMIM YAHYA, AM : BY WAY OF THIS MISCELLANEOUS APPLICATION, ASSESSEE SEEKS RECTIFICATION OF MISTAKE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 2701/MUM/2014 FOR ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 28.06.2019. 2. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE L EARNED COUNSEL OF THE ASSESSEE CONT ENDED THAT ASSESSEE HAD FILED FOLLOWING ADDITIONAL GROUNDS WHICH HAVE NOT BEEN ADJUDICATED BY THE TRIBUNAL: - 10. GROUND 10 DEPRECIATION ON ACTUAL COST OF PURCHASED GOODWILL FOR AY 2009 - 10 2 MA NO. 632 /MUM/20 19 THERMO FISHER SCIENTIFIC INDIA PVT. LTD. 10.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX (DCIT) AND HON'BLE DISPUTE RESOLUTION PANEL (DRP) ERRED IN NOT CONSIDERING THE ACTUAL COST (AGGREGATING TO RS.74,94,11,161) OF GOODWILL PURCHASED FROM GLAXOSMITHKLINE PHARMACEUTICALS LTD., PURSUANT TO SLUMP SALE, AS THE WRITTEN DOWN VALUE FOR THE PURPOSES OF SECTION 43(6)(C)(II) OF THE INCOME TAX ACT, 1961 (IT ACT) AND CONSEQUENTLY, ERRED IN NOT ALLOWING DEPRECIATION AMOUNTING TO RS.18,73,52,790 ON THE ABOVE WRITTEN DOWN VALUE. 11. GROUND 11 ALLOWA NCE OF HIGHER BROUGHT FORWARD UNABSORBED DEPRECIATION OF AY 2008 - 09 RELATING TO DEPRECIATION ON PURCHASED GOODWILL 11.1 WITHOUT PREJUDICE TO THE GROUND NO. 10, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DCIT ERRED IN NOT ALL OWING HIGHER BROUGHT FORWARD UNABSORBED DEPRECIATION OF AY 2008 - 09 RELATING TO THE DEPRECIATION OF RS.18,73,52,790 ON GOODWILL PURCHASED FROM GLAXOSMITHKLINE PHARMACEUTICALS LTD. 12. GROUND 12 - ALLOWANCE OF HIGHER BROUGHT FORWARD UNABSORBED DEPRECIATIO N OF AY 2008 - 09 RELATING TO DEPRECIATION ON SOFTWARE EXPENSES 12.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DCIT ERRED IN NOT ALLOWING HIGHER BROUGHT FORWARD UNABSORBED DEPRECIATION OF AY 2008 - 09 RELATING TO DEPRECIATION O F RS.262,345 ON SOFTWARE EXPENSES TREATED AS CAPITAL EXPENDITURE IN AY 2007 - 08. 3. UPON CAREFUL CONSIDERATION AND PERUSAL OF THE RECORDS, WE FIND THAT THE ITAT HAD ONLY ADJUDICATED THE MAIN GROUND AND HAD NOT ADJUDICATED THE ADDITIONAL GROUNDS. IN THIS VIEW OF THE MATTER, A MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE ORDER OF THE ITAT. 4. ACCORDINGLY, THE ORDER OF THE ITAT IS RECALLED ONLY TO CONSIDER THE ISSUE OF ADJUDICATION OF THE AFORESAID ADDITIONAL GROUNDS WHICH HAVE NOT BEEN CONSIDERED IN THE ITAT ORDER. REGISTRY IS DIRECTED TO FIX THE CASE TO CONSIDER THE ISSUE OF ADJUDICATION OF ADDITIONAL GROUNDS IN THE NORMAL COURSE. 3 MA NO. 632 /MUM/20 19 THERMO FISHER SCIENTIFIC INDIA PVT. LTD. 5. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS ALLOWED IN TERMS OF ABOVE. ORDER PRONOUNCED UNDER RULE 34( 4) OF ITAT RULES ON 1 2 T H MARCH, 2021. SD/ - SD/ - (PAVAN KUMAR GADALE) JUDICIAL MEMBER ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 2 T H MARCH, 20 21 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, J BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI