TaxTMI 
TaxTMI 
2014 (2) TMI 362
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....ns. Thereafter, the A.O. noticed that depreciation of Rs.12,52,86,830/- claimed by the assessee on trade mark "Nihar" acquired was wrongly allowed in the assessment originally completed u/s 143(3) of the Act as the said trade mark was not registered in the name of the assessee. He also noticed that the claim of the assessee for depreciation amounting to Rs. 25,80,878/- on the amount paid to Hindustan Lever Limited towards non-compete fees @ 25% was wrongly allowed as the expenditure incurred on payment of non-compete fees should have been allowed to be amortized only to the extent of 5%. He therefore reopened the assessment and issued a notice to the assessee u/s 148 of the Act on 28-3-2011. During the course of reassessment proceedings, elaborate submissions were made on behalf of the assessee in support of its case that the depreciation on trade mark "Nihar" and non-compete fees was rightly allowed in the assessment originally completed u/s 143(3) of the Act and there was no case of any escapement of income from the assessment. These submissions made on behalf of the assessee, however, were not found acceptable by the A.O. who completed the assessment u/s 143(3) r.w.s. 147 of the....
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....07. It was also pointed out during the course of assessment that the trademark acquired by the assessee was "unregistered". d) The Assessing Officer after due consideration of appellant's submission and after due application of mind has allowed the depreciation of Rs.12,52,86,830/- e) The only reason given by the Assessing Officer while reopening the assessment is that since trademark which is acquired by the assessee from Hindustan Lever Ltd. Is unregistered trademark, allowance of depreciation is not in order. f) The above reason could not have led the Assessing Officer to believe that depreciation is wrongly allowed as section 32 no where provides that in order to eligible for depreciation; intangible asset such as trademark has to be registered. g) The law that registration of a property is not required for the purpose of claiming depreciation has been settled by the Supreme Court in the case of Mysore Mineral Ltd. Vs. CIT- 239 ITR 775. h) Supreme Court in the case of Techno Shares and Stocks Ltd. (327 ITR 323) has given a very wide meaning to the term "any other business or commercial right of similar nature....
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....opening the assessment and since there was no new material coming to the possession of the A.O. which would lead to the conclusion that the income chargeable to tax had escaped assessment, the reopening was based merely on a change of opinion. Reliance was placed on behalf of the assessee on the following judgments of the Hon'ble Bombay High Court to contend that the mere change of opinion in the absence of any tangible material was not sufficient to assume jurisdiction u/s 147 r.w.s. 148 of the Act: "i) CIT vs. Shri Amitabh Bachchan in ITA No. 4646 of 2010 vide order dated 05-07-2012. ii) M/s Rabo India Finance Limited vs. DCIT, Circle - 1(3), Mumbai & Ors. In Writ Petition No. 870 of 2012 vide order dated 09-07-2012. iii) ICICI Home Finance Company Ltd. Vs. Union of India in Writ Petition No. 430 of 2012 vide order dated 20-07-2012. 6. The ld. CIT(A) found merit in the contention raised on behalf of the assessee on the preliminary issue challenging the validity of the assessment made u/s 143(3) r.w.s. 147 of the Act and quashed the said assessment for the following reasons given in para 3.8 of his order:- "I have perused th....
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....ieve that the income of the assessee has escaped assessment and the reopening of assessment by the A.O. therefore was in accordance with law. In support of this contention, he relied on the decision of Hon'ble Bombay High Court in the case of Export Credit Guarantee Corporation of India Limited vs. Addl. CIT (Writ Petition No. 502 of 2012 dtd. January 10/11, 2013. 9. The ld. Counsel for the assessee, on the other hand, strongly supported the impugned order of the ld. CIT(A) cancelling the assessment made by the A.O. u/s 143(3) r.w.s. 147 of the Act treating the same as bad in law. He submitted that both the issues raised by the A.O. in the reasons for reopening had been duly examined in the original assessment proceeding u/s 143(3) of the Act. He invited our attention to the submissions made before the ld. CIT(A) in this regard as well as the submissions made on behalf of the assessee before the A.O. during the course of assessment proceeding vide letter dated 18-12-2009 to show that enquiries were made by the A.O. on both these issues and only after having satisfied himself with the submissions made by the assessee, the claim of the assessee on both the issues was accepted by the....
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....at both these issues were properly examined by the A.O. during the course of original assessment proceeding u/s 143(3) of the Act and on such examination, the same were allowed by the A.O. after applying his mind. In this regard, a written submission was made on behalf of the assessee before the ld. CIT(A) to show how both these issues were examined by the A.O. during the course of assessment proceeding u/s 143(3) of the Act and the same has already been extracted by us hereinabove from the impugned order of the ld. CIT(A). The ld. Counsel for the assessee has also placed on record before us a copy of letter dated 18-12-2009 filed with the A.O. during the course of assessment proceeding u/s 143(3) of the Act and a perusal of the same shows that a detailed note was filed by the assessee justifying its claim for depreciation on the trade-mark "nihar" and for depreciation on non-compete fees in reply to the enquiry made by the A.O. on these issues. A perusal of the order passed by the A.O. originally u/s 143(3) of the Act also shows that the claim of the assessee for depreciation on non-compete fees paid to Hindustan Lever Limited was accepted by him after passing a well discussed ord....