2017 (3) TMI 1948 - AT - Income Tax

Tribunal allows 80% depreciation on server equipment, upholds goodwill depreciation, applies section 194J disallowance provisions

M/s Samsung R&D Institute India Bangalore Pvt. Ltd. Versus The Dy. Commissioner of Income-tax, Circle-6 (1) (1), Bengaluru And (Vice-Versa)

ITAT Bangalore ruled on multiple issues in this tax appeal. The tribunal allowed 80% depreciation on server/networking equipment, classifying it under ... Rate of depreciation of server/networking equipment - HELD THAT:- We have noticed that this issue of depreciation of server/networking equipment is covered by the decision of Dinamalar Vs. CIT [2016 (9) TMI 506 - MADRAS HIGH COURT] and Ushodaya Enterprises Ltd. [2012 (10) TMI 472 - ITAT HYDERABAD] held that control panel boards and transformers could be classified under 'Instrumentation and monitoring systems' and are entitled to depreciation at 80%. Depreciation on goodwill - HELD THAT:- CIT(A)'s decision upheld to allow depreciation on goodwill, referencing the Supreme Court decision in Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] and the Delhi High Court's decision in Triune Energy Systems [2015 (11) TMI 1218 - DELHI HIGH COURT] It was noted that goodwill is an intangible asset and should be accounted for when a purchaser acquires a business for more than the fair market value of its net tangible assets. The Tribunal dismissed the Revenue's ground, stating that the judgment of the Supreme Court in Goetze (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] does not apply to the powers of the Tribunal to entertain fresh claims. Disallowance u/s 194J - scope of amended provision - HELD THAT:- Since the issue was decided by the Commissioner on the basis of the judgment pertaining to the period prior to the amendment of the explanation to section 194J, therefore the judgments relied were not applicable and the applicable provision was the amended explanation. In our view the case of the assessee falls within the ambit of explanation to section 194J, therefore the violation committed by the assessee is required to be dealt accordingly. Accordingly, the ground of the Revenue with respect to disallowance u/s 194J is allowed. TP Adjustment - comparable selection - inclusion of Infosys Ltd. and LGS Global Ltd. - HELD THAT:- In our view the exclusion of Infosys has been dealt by the coordinate bench, the coordinate bench after the detailed examination found that the Infosys is not comparable with the companies referred in the judgement. As the profile of the assessee is similar to that of the assessee referred in the judgement, therefore in our view the Infosys is required to be excluded and has been excluded by the Commissioner at the appellate stage. Therefore we have no hesitation to direct the exclusion of Infosys in the list of comparable. We found that the order of the ld CIT was in accordance with law and in conformity with the judgement passed by the coordinate bench. LGS Global Ltd. - As contended that the learned CIT(A) instead of deciding the issue of exclusion of LGS Global Ltd., has remitted back the issue to the file of the TPO for fresh adjudication. In our view, the learned CIT(A) under the Income-tax Act is required to decide issue at his own level and should not have remitted matter back to the file of the TPO - thus this issue is sent back to the file of the CIT(A) to decide afresh on the basis of material available with him in accordance with law. Issues Involved:1. Rate of depreciation on server/networking equipment.2. Depreciation on goodwill.3. Disallowance u/s 194J.4. Inclusion of Infosys Ltd. and LGS Global Ltd. as comparables.Summary:Issue 1: Rate of Depreciation on Server/Networking EquipmentThe Revenue's appeal regarding the rate of depreciation on server/networking equipment was dismissed. The Tribunal noted that this issue is covered by the decision of the Madras High Court in the case of Dinamalar Vs. CIT (2016) 74 taxman.com 14 and the Hyderabad Tribunal in ACIT Vs. Ushodaya Enterprises Ltd., (2013) 33 taxmann.com 381. The Madras High Court had held that control panel boards and transformers could be classified under 'Instrumentation and monitoring systems' and are entitled to depreciation at 80%.Issue 2: Depreciation on GoodwillThe Tribunal upheld the CIT(A)'s decision to allow depreciation on goodwill, referencing the Supreme Court decision in Smifs Securities Ltd., 348 ITR 302, and the Delhi High Court's decision in Triune Energy Systems Vs. DCIT (2016) 65 taxman.com 288. It was noted that goodwill is an intangible asset and should be accounted for when a purchaser acquires a business for more than the fair market value of its net tangible assets. The Tribunal dismissed the Revenue's ground, stating that the judgment of the Supreme Court in Goetze (India) Ltd. [2006] 157 Taxman 1 (SC) does not apply to the powers of the Tribunal to entertain fresh claims.Issue 3: Disallowance u/s 194JThe Tribunal allowed the Revenue's ground regarding disallowance u/s 194J, noting that the CIT(A) had relied on decisions that were not applicable post the amendment to the explanation of section 194J. The Tribunal held that the case falls within the ambit of the amended explanation to section 194J, and the violation committed by the assessee should be dealt with accordingly.Issue 4: Inclusion of Infosys Ltd. and LGS Global Ltd. as Comparables- Infosys Ltd.: The Tribunal upheld the CIT(A)'s decision to exclude Infosys Ltd. from the list of comparables, referencing the coordinate bench's decision in IT(T.P)A No. 1009/Bang/2014, which found Infosys Ltd. not functionally comparable to a software development service provider due to its significant intangibles and revenue from software products.- LGS Global Ltd.: The Tribunal noted that the CIT(A) had remitted the issue back to the TPO for fresh adjudication, which was not appropriate. The Tribunal sent the issue back to the CIT(A) to decide afresh based on the material available.Assessee's Appeal:The Tribunal dismissed the assessee's appeal as academic, noting that the revised taxable income computed by the AO was lower than the income declared by the assessee, and the appeal effect had already been given.Conclusion:The Revenue's appeal was partly allowed for statistical purposes, and the assessee's appeal was dismissed.