TaxTMI 
TaxTMI 
2018 (3) TMI 519
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....eciable asset because its life is not limited. 2. That the Ld. CIT(A) has erred in law and on facts in not appreciating the fact that the assessee has purchased paper brand from its sister concern, which is not an actual transfer but it is a "colorable device" for tax avoidance. 3. That the Ld. CIT(A) has erred in law and on facts in allowing the depreciation on Chemical Recovery Plant despite the fact that the AO has established that the Chemical Recovery Plant was not put to use in the month of March, 2008. 4. That the Ld. CIT(A) has erred in law and on facts in not appreciating the fact that for claiming depreciation, it is mandatory that the asset has to be put to use in that particular financial year, which is not the position in this case, as the Chemical Recovery Plant was pt to use in the month of April, 2008. 5. That the order of the Ld. CIT(A) being erroneous in law and on facts which needs to be vacated and the order of the AO be restored. 6. That the appellant craves leave to add or amend any one or more of the ground of appeal as stated above as and when need for doing so may arise. 3. The brief facts of the case are that....
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.... of the order of the ITAT, 'A' Bench, New Delhi dated 11.5.2017 in ITA No. 2263/Del/2012 (AY 2008-09) in the matter of assessee i.e. DCIT vs. ABC Paper Ltd. Ld. Counsel of the assessee further submitted that search and seizure operations were conducted at the premises of the assessee on 4th May, 2011. Pursuant to the search, the Income Tax assessments from Assessment Year 2006-07 to Assessment Year 2012-13 were reassessed u/s 153A of the Income Tax Act. The orders u/s 153/143(3) in respect of Assessment Year 2006-07 to Assessment Year 2012-13 were passed on 31.03.2015 wherein the AO has made the disallowance on the same grounds in respect of which disallowance was made in Assessment Year 2008-09 vide order dated 30.12.2010. The aforesaid disallowance was made in orders u/s 153A dated 31.03.2015 just to keep the issues raised in Assessment Year 2008-09 alive as at that time the department appeal for Assessment Year 2008-09 was pending before the ITAT. He further stated that order u/s 143(3) dated 06.08.2015 was passed in respect of Assessment Year 2013-14 wherein again the same disallowances were made. Against the order u/s 153/143(3) for Assessment Year 2006-07 to Assessment ....
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.... 24. vii) CIT, West Bengal-IV, Calcutta vs. Norplex Oak India (2011) 198 Taxman 470/10 taxman.com 163 (Cal.) I do not find reason to differ from the decision of the Ld. CIT(A)-IV, New Delhi. Therefore, respectfully following the same addition made by AO on account of depreciation claimed on chemical recovery plant for 2008-09 to 2013-14 assessment years are hereby deleted." 6.1. We further find that ITAT, 'A' Bench, New Delhi vide its order dated 11.5.2017 in ITA No. 2263/Del/2012 (AY 2008-09) in the matter of assessee i.e. DCIT vs. ABC Paper Ltd has dealt the similar and identical issues. For the sake of convenience, we are reproducing the relevant portion of the order of ITAT, 'A' Bench, New Delhi as under:- "5. We have heard the rival submissions and have perused the relevant material on record. It is seen that the Ld. CIT (A) has discussed and adjudicated the issue relating to depreciation on the paper brand in Para 5.2 of the impugned order which reads as under:- "5.2 I have carefully considered the assessment order and the submissions made by the Id. AR on the above issue. For the sake of clarity, I would like to reproduce the provisions....
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....T Vs. Techno Shares and Stocks Ltd. (ITR 323(69) Mumbai) held that "brand" is an intellectual property which can be equated with "trade mark". Further, the Hon'ble ITAT, Pune vide its recent order dated 23.08.2011 in the case of M/s Dilbris International Pvt. Ltd. Vs. DCIT (ITA no. 1361 PN/2010) relying on the decision of the Hon'ble ITAT, Delhi in Hindustan Coca Cola Beverages (P) Ltd. Vs. DCIT has held that brand name is eligible for depreciation. The relevant portion of the order is extracted below: "The special Bench of the Tribunal in the case of Amway India has held that if the software is useable/used for more than 2 years, it is a capital expenditure and if it is for less than 2 years, it is revenue expenditure. We thus following the ratio laid down therein come to the conclusion that in the present case, since the assessee had purchased the user of brand name, trademark, logo for 3 years and similarly, the intellectual property right such as design, drawings, manufacturing processes and technical knowhow in respect of the products manufactured by unit was acquired, we hold that the expenditure incurred in this regard as valued by the approved valuer is capital exp....
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.... issue relating to depreciation on the chemical recovery plant has been discussed at length in Para 6.5 and 6.6 of the impugned order which are being reproduced hereunder for a ready reference: - "6.5 I have carefully considered the assessment order and the remand report of the AO and the submissions made by the Ld. AR alongwith the documents placed on record. I find that the additional evidence submitted by the appellant are merely by way of further corroboration of the claim of the assessee made in the return of income and during assessment proceeding that the said Chemical Recovery Plant had been commissioned and put to use during the year under consideration, thereby making the assessee eligible for depreciation and additional depreciation on the same as per rules. Further, the said evidences were provided to the AO and were duly examined and verified by the AO during the remand proceeding. The said evidences are also related to the issue on which the addition has been made and the grounds of appeal. It is also submitted by the appellant that the said evidences could not be produced during the assessment stage due to paucity of time as the assessment proceedin....
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....per Book. It is further argued by the Id. AR that a copy of the publication regarding status of implementation of the above project as per the Stock Exchange and SEBI guidelines was also submitted before the AO. Further, copy of Board Resolution of the assessee company dated 29.04.2008 stating that the date of commissioning of the Chemical Recovery Plant was 21.03.2008 was also filed before the AO. The assessee has also charged in its book an amount of Rs. 19,98,090/- as depreciation on the above plant for the period of one month as per the Companies Act. Copies of al! the bills relating to addition to fixed assets including machineries for the above plant were produced before the AO. It is submitted by the Id. AR that the AO's observation that some assets were still under construction / testing stage based on some samples of bills is completely erroneous as the said bills nowhere mentioned that the assets were at construction / testing stage. Further, the appellant during the appellate proceeding submitted copy of the relevant records of the Central Excise registers and statutory returns filed with the Central Excise Department for the purpose of Cenvat credit as well as the Inwar....