TaxTMI 
TaxTMI 
2021 (3) TMI 341
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....y the Assessing Officer) made u/s. 32(1)(ii) of the IT Act. 3. The learned Commissioner of Income-Tax (Appeals) ought to have considered that the disallowance of the claim of depreciation by the Assessing officer as per order u/s. 154 was Rs. 99,09,96,797/- and not Rs. 44,04,03,000/-. The learned CIT (Appeals) ought to have decided the appeal against disallowance of depreciation of Rs. 99,09,96,797/-. 4. The learned Commissioner of Income-Tax (Appeals) ought to have considered the fact that while acquiring the Industrial packaging unit from ITW India Limited, the appellant acquired the goodwill of the value of Rs. 792.79 crores. by paying consideration. 5. The learned Commissioner of Income-Tax (Appeals) ought to have considered the fact that the appellant acquired the business activity as a going concern and the assets including goodwill were valued by BSR & Company and the assets acquired include goodwill valued at Rs. 792.79 crores. 6. The learned Commissioner of Income-Tax (Appeals) ought to have considered various legal precedents on the subject and ought to have held that the appellant acquired goodwill and is entitled for depreciation on the value of goodwill acquire....
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.... Audit Report filed by the assessee, that the assessee had purchased the packaging unit of M/s. ITW India Limited, on slump sale and on 'as is where is basis' for a consideration of Rs. 1240 crores, which includes the assets shown in the above tables and capital work-in-progress of Rs. 640,79 lakhs, cash and equivalents, receivables of Rs. 23,657.23 lakhs, inventory of Rs. 10,349.89 lakhs and other current assets of Rs. 5,306.04 lakhs. The purchase consideration also includes trade payables at Rs. 6012.00 lakhs and other liabilities of Rs. 5466.77 lakhs. The assessee submitted that it had valued the unit purchased from M/s. ITW India Ltd., basing on the valuation done by independent valuers M/s. B.S.R. & CO., and filed a copy of the valuation report. As seen from the valuation report and accompanying particulars, it is noticed that the company M/s. ITW India Ltd., did not record any goodwill in its books. However, the assessee had determined the Goodwill of the packaging unit purchased from M/s. ITW India Ltd., on the pretext that the same is having a sizeable market share in the packaging activities and clientele basis and therefore computed the goodwill and claimed deprec....
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....ook value on this analogy by the valuer engaged by your companies without any genuine analysis of its fair market value would lead to skewed assessment of valuation. Further, the following distinguishable facts are notable as per the working submitted/used in the valuation report. (i) As observed at para 5.2.6 it is clear that ITW India Limited recorded goodwill on account of its acquisition of Wintek Flexo Prints Partnership Firm in F.Y. ending 31/03/2012 and on similar analogy it has also recorded intangible assets on account of the same transaction. The qualifying notes as given in valuation report on acquisition are as under: 5.2.6. Signode recorded goodwill of INR 143.2 million in CY 2012 on account of acquisition of Wintek Flexo Prints (Wintek). Wintek was a partnership firm based out of Bangalore engaged in producing branded tables in India. 5.2.7. Intangible assets amounting to INR 173.4 million were recorded on account of acquisition of Wintek. These intangible assets comprise trademarks and trade name - INR 34.6 million, unpatented technology - INR 41.2 million, non-compete agreement - INR 18 million and customer relationship - INR 79.6 Million. Hence, in view of ....
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.... is the same of the first reply and it mostly relied upon the valuation report and also on the market share of purchased company. The assessee submitted that the value of land was properly valued by the independent valuer and there cannot be much growth than considered 1 by the assessee. The important submissions made by the assessee are reproduced here under: a) M/s. BSR and Associates have valued the packing division using most accepted valuation methods viz., discounted cash flows method (DCF), comparable companies method and comparable transactions method and the average value of these three methods has been taken to be the value of the industrial packing division. Thus a value of Rs. 12400 million is arrived at after considering the above most accepted valuation methods. b) for determination of fair market value and for accounting the allocation of consideration paid towards tangible and intangible assets acquired under slump sale the company had obtained the purchase price allocation report from BSR and Associates. The consideration paid by the company was allocated to the tangible assets including land as per the aforesaid valuation report and the excess of fair assets a....
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....see are carefully considered and found to be not acceptable. As stated supra, it is clear that ITW India Limited recorded goodwill on account of its acquisition of Wintek Flexo Prints, Partnership Firm in F.Y. ending 31/03/2012 and on similar analogy it has also recorded intangible assets on account of the same transaction. The qualifying notes as given in valuation report on acquisition are re-produced for the sake of clarity, as under: 5.2.6. Signode recorded goodwill of INR 143.2 million in CY 2012 on account of acquisition of Wintek Flexo Prints (Wintek). Wintek was a partnership firm based out of Bangalore engaged in producing branded tables in India. 5.2.7 Intangible assets amounting to INR 173.4 million were recorded on account of acquisition of Wintek. These intangible assets comprise trademarks and trade name - INR 34.6 million, unpatented technology - INR 41.2 million non-compete agreement - INR 18 million and customer relationship - INR 79.6 Million. From the above, it is clear that prior to slump sale, ITW India Limited do not have any good will or intangible asset in its books as attributable to industrial packing business unit which was claimed to be purchased b....
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.... Aggrieved the assessee is in appeal before the Tribunal. 4. The Ld. AR reiterated the submissions made before the authorities below and further the he Vehemently argued the case of the assessee. He stated that the assessee has paid consideration over and above from tangible assets has been recorded as Goodwill and depreciation was claimed as per the prescribed rate of Depreciation and in support of his argument he has relied on the number of judgments which are place on record containing paper book page No. 01-113 AR filed elaborate written submissions in support of assessee's case, the gist of which are as under: (1) The appellant acquired the Industrial Packaging division held by ITW India Limited after due diligence for a consideration of Rs. 1,240 Crores. (2) The total value of the unit was got valued by ITW India Limited and for the purpose of accounting, the values of the individual assets were got valued by the appellant through the same authorized valuer BSR & Co., Chartered Accountants. (3) The appellant, after purchase of the unit, made appropriate entries in its books of account which include the commercial rights valued at Rs. 792.7 Crores debited under good....
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....on 22.11.2013 effective from 30.11.2013. ii) The industrial packaging segment was sold to the Carlyle group and this was announced in a release by ITW in its business review dated 06.02.2014. iii) The transfer of the industrial packaging unit was complete by 01.05.2014 and to this effect the Carlyle group announced in the Press Release wherein it announced that it has acquired Signode India group through ITW on 01.05.2014. The above events clearly indicate that ITW Inc., in order to achieve its objective of exiting from its industrial packaging business globally, reorganised its business activity and in the process the industrial packaging unit was transferred to Signode India Limited which was ultimately transferred to Carlyle group. Besides, ITW India Limited admitted Rs. 807 crores of capital gains and paid tax of Rs. 183 crores and it also paid dividend distribution tax of Rs. 178 crores on distribution of dividend of Rs. 1,050 Crores post the sale of the Industrial Packaging unit to Signode India Limited. The aggregate of the tax paid by ITW India Limited is 45.38% of the goodwill transferred to the appellant which clearly indicates that no advantage is derived by tran....
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....s and domain names, trade marks and service marks and related registrations and applications used in the Business that consist of or contain "ITW", "Illinois Tool Works" or any derivation thereof. 4. The consideration for transfer of business is also fixed at a lump sum amount of 1240 Cr and no basis for the price is available from the agreement. It is clearly mentioned at clause 2.6 of the agreement that the purchase price is a lumpsum consideration and "No specific part of the purchase price is allocated to any specific asset, right or other interest of the Transferor comprising the Business, nor can the purchase price be so allocated. Any allocation of consideration provided for in the transaction documents, if applicable, is the fair value agreed between the transferor and transferee solely for the purpose of calculating stamp duty and any registration charges" 5. It is humbly submitted that from the above, it is clear that lumpsum consideration was fixed on a basis which is known only to both the parties that too subsidiaries of the same parent. It is also clear that no purchase price is fixed to any individual asset or right or other interest. The transfer date is also fi....
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....his findings. Therefore, the valuation report is nothing but an arithmetical exercise feeding management given input into a financial model to arrive at mere numbers without much support. 9. It is also humbly submitted that as seen from clause 5.2.6 of the report of the valuer, Signode recorded goodwill of. 14.32 Cr. in Calendar Year 2912 on account of acquisition of the partnership firm Wintek Flexi Prints. As per clause 6.1.2.4 of the report, goodwill of. 14.32 Cr was expected to remain constant throughout the forecast period. However, a much higher value of fictional goodwill is computed merely on the basis of balancing charge based on arbitrary price fixed for transfer. 10. The second valuation report is dated 02/06/2014 and is meant for purchase price allocation of Signode India Division of ITW India Limited. This report is also as per the terms of engagement with ITW Inc. This report is also of limited value and relevant only for the purpose of claiming depreciation on the assets acquired as per Explanation 4A to section 43(1) which reads as under: "Explanation 4A. -Where before the date of acquisition by the assessee (hereinafter referred to as the first mentioned pers....
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.... a fictional profit which in truth and in fact is non-existent. Cut away the fictions and one reach the position that the man is supposed to be selling to himself and thereby making a profit out of himself which on the face of it is not only absurd but against all canons of mercantile and income-tax law". 12. The valuation report is also faulty and in contradiction to the "Business Transfer Agreement" in working out a fictional goodwill and the mentioning the same at 792.79 Cr. by assigning the same to certain intangibles in arbitrary manner without any valuation, which in fact cannot be fixed as per the "Business Transfer Agreement. It is also humbly submitted that even the second valuation report fixed the value of 792.79 Cr. not only to good will but also to other intangible assets like order book, customer relationship, distributor relationship, machine design, plastic IP, new Product design, supply chain software, right to use brand and trade mark, non-compete agreement and parts and service IP. It is humbly submitted that none of these items are valued. It is also humbly submitted that the use of IP, logos, trade marks, service marks etc of Inn is specifically barred as per....
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....t override the provisions of Income Tax Act. 16. It is also submitted that the cost in the hands of transferor company is 'nil' by virtue of section 55(2)(a)(ii) and therefore the cost is 'nil' in the hands of the transferee-assessee also. It is also humbly submitted that fifth proviso to section 32(1) is also attracted in the present case being a case of succession in an independent business and the same reads as under: "Provided also that the aggregate deduction in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets allowable to the predecessor and the successor in the case of succession referred to in clause (xiii), clause (xiiib) and clause (xiv) of section 47 or section 170 or to the amalgamating company and the amalgamated company in the case of amalgamation, or to the demerged company and the resulting company in the case of demerger, as the case may be, shall not exceed in any previous year the deduction calculated at the prescribed rates as if the succession or the....
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....ints, a partnership firm. The said unit is only a supplemental part of the total business activity of the Industrial Packaging unit held by ITW India Limited. It is a small part of the Industrial Packaging unit held by ITW India Limited. The unit acquired by the appellant is inclusive of Wintek Flexo Prints. 20. The learned CIT-DR mentioned that the appellant is aggrieved of the fact that the CIT (Appeals) did not adjudicate the issue of value of enhancement made by the AO by passing an order u/s. 154 of the I.T. Act. In fact, as submitted in the earlier paragraph, the appellant debited Rs. 44,04,03,000/- being the depreciation on goodwill relating to the unit which was worked out in accordance with Companies Act. The appellant, while filing the return of income, claimed depreciation of Rs. 99,09,96,797/- The Assessing officer, while disallowing the depreciation adopted the depreciation as per the working made under the Companies Act. The Assessing officer, by passing an order u/s. 154, rectified the mistake. The order u/s. 154 is only to correct the amount of disallowance. The issue before the Hon'ble ITAT is the question whether deprecation is allowable or not. 21. The ap....
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....the lands by the respective Sub Registrar. A verification of the values fixed would clearly indicate that the land value fixed by the valuer BSR & Co., is more than the value fixed by the Sub Registrar. This clearly shows that the values are quite reasonable. Further, neither the Assessing officer nor the CIT (Appeals) pointed out any error or omission in the valuation made by BSR & Co. 25. Most importantly the appellant may be permitted to submit that the values fixed by the Valuer to all assets except the lands are accepted while completing the assessment. There is no dispute with regard to any of the assets. The stocks are debited to the Profit & Loss account and the same was accepted. The value of other assets is debited to the assets account and depreciation was claimed. Such claim of depreciation is accepted. Therefore, the values fixed to all the assets are accepted. In so far as values of land are concerned, the appellant was directed to obtain the values as per SRO. The same were obtained and are submitted in a separate paper book. A table showing the value as per SRO and the value as per the valuer is submitted. The valuer fixed a higher value for the land than the valu....
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....e and also examined the basis for such data. The assessee on perusal has come to a conclusion that the valuation made by BSR & Co., is justified. When the valuer has mentioned that if there is any failure on the part of ITW, in furnishing the data there would be a change in the values is a remark to safeguard the interest of the assessee. Further the valuation was carried out 2 months prior to the date of transaction and the business was carried on in these interim period and therefore there would certainly be a change in the values on the date of transaction. This remark is only to caution the appellant to verify the information furnished by ITW. Based on such caution, the appellant needs to make a verification and come to a conclusion. This cannot be understood in any other way. 30. At paragraph 9, the learned CIT-DR mentions that the goodwill in the year 2012 was mentioned as Rs. 14.32 crores on acquisition of the partnership firm Wintek Flexo Prints. It is submitted that it is a small unit and a tiny part of the Industrial Packaging Unit purchased by ITW India Limited. The goodwill value for the Wintek Flexo Prints unit cannot be the good will for the entire Industrial Packag....
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....that the appellant had no intention to participate in the management of the ITW India Limited. The observations made by the CIT JOR are, therefore, not relevant to the facts of the case. 34. In paragraph 12, the CIT-DR mentions that the value of the goodwill worked out is a fictional goodwill. (a) Firstly, it is submitted that the value given to the goodwill is not fictional. It is the value of the intangible assets like order book, customer relationship, distributor relationship, machine design etc. The appellant got all the assets both tangible and intangible relating to the industrial packaging division of ITW India Limited. (b) Secondly, it is submitted that the use of IP Logos, trade marks, service marks etc. of ITW relating to the other businesses retained by ITW India Limited are retained by ITW and are not allowed to be used by the appellant. Therefore, the observations made by the CIT JOR at para No. 12 are not justified. 35. In paragraph No. 13, the CIT JOR mentioned that depreciation on any amount paid towards non compete fee is not allowable. The appellant humbly submits that there is no non compete agreement with ITW India Limited and, therefore, the decisions ....
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....efers to assessment of the person who has transferred the assets and not the person who acquired the asset. Therefore, fifth proviso to Sec. 32(1) has no application to the facts of the case. The appellant may submit that depreciation on goodwill now claimed was not allowed in the case of ITW and therefore, the restrictions mentioned in sec. 32 or 43 are not applicable to the facts of the case. 39. In paragraph 17, the CIT IDR mentioned that it is a fit case for application of third proviso to Sec. 43(1) of the I.T. Act because the business transfer agreement is a part of the comprehensive international arrangement between two groups and there is no rationale for the fixation of the transfer price. The observations made by the CIT IDR are not correct. Firstly, the valuation is made by a registered valuer in accordance with the accepted method of valuation. Secondly, the third proviso to Sec. 43(1) clearly mentions that it should be for the Assessing Officer to conclude whether such provision is applicable or not. Once he decides that such section is applicable, he has to obtain the approval of the Joint Commissioner of Income Tax and apply the said section. In this case, the Asse....
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....icable to the facts of the case. They are discussed hereunder: a) The decision of the Supreme Court in the case of Sir Kikabhai Premchand Vs. CIT reported in 24 ITR 506 is not applicable to the issue as the question answered by the Supreme Court is different from the issue on hand. b) The decisions of the High Court of Delhi in the case of Sharp Business systems Vs. CIT reported in 27 taxman.com. 50 and the decision of ITAT Chennai Bench in the case of Arkema Perozides India Vs. ACIT have no application as the said decisions deal with the depreciation on non-compete fee paid. The said decisions have no application as the appellant did not claim depreciation on non-compete fees and it is never a question either before the AO or before the CIT(A). c) The decision of the ITAT Delhi bench in the case of DCIT vs. Excelex Bio Polymers (P) Ltd., also has no application as it deals with non-compete fee. d) The decision of the Hyderabad Bench of the ITAT in the case Mylan Laboratories Ltd., Vs. ACIT has no application as it is a transfer pricing issue and different from the case of the appellant. e) The decision of the Bangalore Bench of the ITAT in the case of Sanyo BPL (P) Ltd.,....
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....le, M/s. ITW India Limited did not have any goodwill or intangible asset in its books. The AO opined that the goodwill existing in the books of ITW India Limited is relatable M/s. Wintek unit acquired by it in earlier year and not pertain to the unit purchased by the assessee. The AO has also concluded that the valuation report is neither justifiable nor supported by any factual or legal rights existing or occurring in the true sense to treat them u/s. 32 of the Act, and thereby disallowed Rs. 44,04,03,000/- on account of good will and other intangibles. 7.2. When the assessee preferred an appeal before the CIT(A) and made elaborate submissions with case law, which were extracted by the CIT(A) in his order at pages 4 to 9. After considering the same, the CIT(A) confirmed the assessment order by observing as under: "13. After careful examination of the Assessment Order, and submissions made by the AR before me, I am of opinion that the observations made by the AO, that prior to slump sale, ITW India Limited did not have any good will or intangible asset in its books and the good will existing in the books of ITW India Limited is relatable to M/s. Wintek unit acquired by it earlie....
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....gement of ITW for the period 01 July 2013 to 31 December 2019 ("Management Business "Plan"). BSR has read and analyzed but not independently verified the financial projections and underlying data and assumptions and accordingly provided no opinion on the factual basis of the same. If there were any omissions, inaccuracies or misrepresentations of the information provided by the Management of ITW, this may have a material effect on our findings. "3.9 We have heard our analysis on the unaudited financial statements for the Division for the period 1 January, 2010 to 31 December 2012 and provisional financial statement for the period 1 January 2013 to 30 June 2013. Additionally, our analysis is based on Management Business Plan for the period 1 July 2013 to 31 December 2019. Any changes in the assumptions or methodology used to consolidate the financial statements may significantly impact our analysis and therefore the Valuation. 7.6. Sources of Information: "4.1 Unaudited financial statement of Signode for the period 1 January, 2010 to 31 December 2012 and Provisional Financial Statement of Signode for the period 1 January 2013 to 30 June 2013 ("Historical Period") 7.7. Under th....
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....t rate of similar type of land in the vicinity of the specified land. Due consideration has been given, on broad level basis, to factors such as negotiation discount, location and accessibility, land use, size and shape, frontage, developed/undeveloped condition etc., while arriving at market rate of specified industrial land parcels. We have relied on verbal enquiries as it is difficult to get written commitments regarding market rates given the sensitivity of information. 8.1.20 Buildings and civil infrastructure - Cost approach (Depreciated replacement cost method) In depreciated replacement cost (DRC) method, DRC of buildings and civil infrastructure works has been estimated using replacement cost new (RCN) as the basis. RCN means price expected to replace/reproduce the existing asset with similar or equivalent new asset as on the Valuation Date. Following factors have been considered while arriving at RCN of buildings and civil infrastructure works: * type of construction of buildings and civil infrastructure works * technical parameters such as type of foundation, specification of finishes, floor to floor height of building etc., * built-up area of buildings * a....
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....formation provided by local real estate agents/dealers has been taken as the basis for valuation analysis. * There are no authentic databases/official market data sources of prevailing market rates of real estate properties in India. The transaction rates maintained in the sub-registrar office are not fully reliable and may not be reflective of actual transaction rates. Therefore, it is an accepted valuation practice to rely on verbal enquiries on prevailing market rates of land from local real estate agents I property dealers I market players in good faith during site visits based on the recent transactions of similar properties or asking prices of properties available for sale/transfer in the locality. Since discussion with the real estate brokers/market players are verbal and brief only and they having no obligation to tell their true market perception of the prices and quality of title of available properties for sale, our analysis is limited to that extent. Specific to Buildings and civil infrastructure works * Details such as built-up area of buildings, areal quantity of civil infrastructure works etc. have been taken based on the information provided by the Management.....
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....nbsp; Building 3,066.22 Machinery & Equipment 6,739.48 Capital work in progress 640.79 Goodwill and other intangibles 79,279.74 93,128.23 Current Assets: Cash and cash equivalents 3,009.18 Receivables 23,657.23 Inventory 10,349.89 Other current assets 5,306.04 42,322.34 Long term trade receivables 112.73 Current Liabilities: Trade Payables (6,012.00) Other Liabilities (5,466.77) (11,478.77) Long term finance lease (84.53 obligations Net assets purchased 124,000.00 7.13. We observe the fact that the basis for transfer price is in the individual knowledge of the transferor and transferee and also the fact that both the parties are under the control of same management clearly indicate that the claim of fictional goodwill is nothing but deriving undue benefit out of oneself at the cost of Revenue. 7.14. We observe that the two valuation reports of BSR Associates which are available at pages 111 to 191 of the first paper book filed by the assessee has limited relevance in the above context. The first ....
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....i Prints. As per clause 6.1.2.4 of the report, goodwill of Rs. 143.20 Cr was expected to remain constant throughout the forecast period. However, a much higher value of fictional goodwill is computed merely on the basis of balancing charge based on arbitrary price fixed for transfer. 7.17. The second valuation report is dated 02/06/2014 and is meant for purchase price allocation of Signode India Division of ITW India Limited. This report is also as per the terms of engagement with ITW Inc. This report is also of limited value and relevant only for the purpose of claiming depreciation on the assets acquired as per Explanation 4A to section 43(1) which reads as under: "Explanation 4A.-Where before the date of acquisition by the assessee (hereinafter referred to as the first mentioned person), the assets were at any time used by any other person (hereinafter referred to as the second mentioned person) for the purposes of his business or profession and depreciation allowance has been claimed in respect of such assets in the case of the second mentioned person and such person acquires on lease, hire or otherwise assets from the first mentioned person, then, notwithstanding anything c....
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...., right to use brand and trade mark, non-compete agreement and parts and service IP. None of these items are valued. As per section 2 of the Transfer Deed, the following assets as per exhibit "C" which were not to be transferred which is as under: "All Intellectual Property of Transferor, other than the Business Intellectual Property. All trade names, logos, Internet addresses and domain names, trademarks and service marks and related registrations and applications used in the business that consist of or contain "ITW", "Illinois Tool Works" or any derivation thereof: As per assessee's contention the business has been transferred as a going concern to the transferee, but, as per the above "section 2" the intellectual property of the transferor has not been transferred the above assets, then how the assessee has calculated all intangible assets in the form of goodwill. 7.20. We observe that when there is no transfer of the asset as well as there is no valuation of the asset, there cannot be any claim of ownership or claim of depreciation. With regard to non-compete agreement, there is no such agreement on record and even if it exists, the amount paid for non-compete agreeme....
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....nn.com 103 (Bang. Trib.), on which reliance placed by the Ld. DR., the coordinate bench has held as under: "During the year under consideration the assessee inter alia amalgamated its wholly owned subsidiary KBDL. The assessee acquired the entire shareholding of the company from the shareholders for consideration of Rs. 180.52 crores. In the books of account the assessee has recorded the value of the assets on the basis of revaluation done by the valuer and thereby shown the goodwill at Rs. 62.30 crores, The Assessing Officer has not accepted the claim of depreciation on goodwill by holding that the assessee has not acquired any intangible assets in pursuant to the amalgamation of its subsidiary with the assessee and therefore as per the Assessing Officer the goodwill was not at all in existence. It is pertinent to note that the Assessing Officer has the jurisdiction and power to examine the valuation of the assets as per Explanation 3 to section 43(1). It is clear from the Explanation 3 to section 43(1) that if the Assessing Officer is satisfied that the main purpose of the transfer of such assets was the reduction of liability to income tax by claiming depreciation on the enhan....
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....Assessing Officer finds that the assessee has claimed excess claim of depreciation by enhancing the cost of goodwill then actual cost of goodwill can be determined only by considering the actual cost of the other assets so acquired under amalgamation. There is another aspect involved in this issue of claiming depreciation on the enhanced cost of goodwill in cases of succession/amalgamation as it is restricted in the hand of successor or amalgamated company only to the extent as apportioned between the amalgamating and amalgamated company in the ratio of number of days for which the assets used by them. Further the deduction shall he calculated at the prescribed rate as if the amalgamation has not taken place. This proviso to section 32(1) provides that depreciation allowable in the case of succession, amalgamation or merger, demerger should not exceed the depreciation allowable had the succession not taken place. In other words, the allowance of depreciation to the successor/amalgamated company in the year of amalgamation would be on the written down value of the assets in the books of the amalgamating company and not on the cost as recorded in the books of amalgamated company. T....
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....s is not relevant for the issue of depreciation on the assets taken under amalgamation and for the purpose of 5th proviso to section 32(1). Accordingly, in view of the above facts and circumstances of the case as well as the above discussion, it is held that the claim of depreciation in the hands of the assessee is subjected to the 5th proviso to section 32(1). Accordingly, this issue is decided against the assessee." 7.25. In view of the above discussion, we do not find any infirmity in the order of CIT(A) in confirming the disallowance of the claim of depreciation of Rs. 44,04,03,000/- and dismiss the ground Nos. 2 to 6 raised by the assessee on this count. The case laws relied by the Ld. Authorized Representative are not applicable in the present facts of the case. The Ld. Authorized Representative could not controvert the findings recorded by the authorities below. 7.26. The assessee contended in the grounds of appeal that the CIT(A) ought to have considered that the disallowance of the claim of depreciation by the AO as per order u/s. 154 was Rs. 99,09,96,797/- and not Rs. 44,04,03,000/-, therefore, the CIT(A) ought to have decided the appeal against disallowance of deprecia....