2011 (9) TMI 1055

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...., no one has come present on behalf of the assessee, however, with the assistance of Learned DR we have gone through the record carefully and we do not find any merit in this appeal, therefore, we proceed to dispose of the appeal ex parte qua the assessee.   3. The brief facts of the case are that the assessee has filed its return of income on 30th September 2004 declaring an income of Rs. 2,30,93,300. An assessment was passed under sec. 143(3) of the Act on 30.11.2006 at an income of Rs. 2,75,55,734. Learned Assessing Officer has made various additions and disallowances. In the present appeal, we are concerned with an addition of Rs. 2,50,000 which was made by disallowing depreciation on goodwill. In brief, the following amounts we....

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....ed the claim of assessee, however, Learned Commissioner sought to revise the order by exercising powers under sec. 263 of the Act. The ITAT set aside the order of Learned CIT on the ground that Assessing Officer took a plausible view which is a possible view in law and therefore there cannot be any occasion under sec. 263 of the Act. Hon'ble High Court after making a detailed analysis on the facts and law uphold the order of the ITAT. Learned First Appellate Authority has reproduced the observations of the Hon'ble High Court and it is imperative upon us to take note of the observations made by the Hon'ble High Court in paragraphs 24 and 25 which read as under:   "24. It is worth noting that the meaning of business or ....

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....usible one, it was not appropriate on the part of the Commissioner to exercise his power under sec. 263 solely on the ground that in the books of account it was mentioned as 'goodwill' and nothing else. As has been held by the Apex Court in Malabar Industrial Co. Ltd. (supra), Max India Ltd (supra) and CIT Vs. Vimgi Investment P. Ltd. [2007] 290 ITR 505 (Delhi) once a plausible view is taken, it is not open to the Commissioner to exercise the power under section 263 of the Act. 25. In view of the aforesaid analysis, we are of the considered opinion that the order passed by the tribunal is justified in the facts and circumstances of the case and the questions which have been raised by the revenue as substantial questions of law really do ....