2023 (1) TMI 962

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....aised by the assessee is that the Ld. CIT(A) erred in confirming the order of the AO by sustaining the disallowance of Rs. 1,02,00,357/- on account of excess depreciation claimed on the goodwill. 4. The facts in brief are that the assessee in the present case is a limited company and engaged in the business of trading and transportation of Natural Gas and manufacturing of Compressed Natural Gas. The AO during the assessment proceedings found that the assessee has claimed depreciation on the goodwill at Rs. 1,76,43,861/- only whereas the actual and eligible amount of depreciation works out at Rs. 74,43,504/- only. As per the AO, the assessee has claimed excessive depreciation on the goodwill by Rs. 1,02,00,357/- only which was disallowed and added to the total income of the assessee. 5. Aggrieved assessee preferred an appeal to the Ld. CIT(A) who upheld the order of the AO by observing that his predecessor in the earlier assessment year has disallowed the excess depreciation claimed on the goodwill. 6. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us. 6.1 The Ld. A.R. appearing before us contended that this Tribunal in the identical facts and c....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the assessee. He was of the view that Hon'ble High Court of Gujarat has approved the scheme of demerger and order appointed date as 01.01.2007. Therefore, the claim of depreciation on goodwill to the amount of Rs. 1,81,33,969/- was disallowed and added to the total income of the assessee. 8. Aggrieved assessee has filed before Ld. CIT(A). The Ld. CIT(A) has dismissed the appeal of the assessee. 9. During the course of appellate proceeding before us the Ld. Counsel has brought to our notice that Co-ordinate Bench of the ITAT has adjudicated the identical issue on identical fact in favour of the assessee in the case of the assessee itself vide ITA No. 775/Ahd/2014 2346 and 2979/ahd/2015 for A.Y. 200910 to A.Y. 2013-14. Therefore, the Ld. CIT(A) is not justified in sustaining the disallowance made by the AO. On the other side Ld. DR has supported the decision of the lower authorities. 10. We have heard both the sides and perused the material on record. With the assistance of the Ld. Representative we have gone through the aforesaid decision of the Co-ordinate Bench of the ITAT and noticed that the similar issue on identical fact has been decided in favour of the assessee. The....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ference and understanding of the subject: Particulars FY 2006-07 FY 2007-08 FY 2008-09 FY 2009-10 FY 2010-11 FY 2011-12 Goodwill generated 339,890,680 297,404,345 223,053,259 167,289,944 125,467,458 94,100,594 Depreciation 42,486,335 74,351,086 55,763,315 41,822,486 31,366,865 23,525,148 Closing WDV 297,404,345 223,053,259 167,289,944 125,467,458 94,100,594 70,575,445 21.1 As stated on behalf of the assessee, the assessee company was formed as a resultant company out of the demerger of Adani Energy Ltd. The order under s.394 of the Companies Act, 1956 was passed by the hon'ble Gujarat High Court on December 9, 2009 while the appointed date was fixed at 01.01.2007 as per the draft scheme of demerger. As a result of demerger, the assessee company has paid certain excess consideration to the demerged company over and above the assets acquired. Such excess consideration amounting to Rs.33,98,90,680/- was treated in the nature of goodwill by the assessee as a capital right. The assessee claimed depreciation thereon for the first time in AY 2010-11 being the year in which the order of the Hon'ble Gujarat High Court was received. Con....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 21.4 A legal issue also cropped up in the course of hearing as to whether additional ground could be raised in a cross objection filed by the assessee under s.253(4) of the Act. On being enquired on this aspect of the matter, it was submitted on behalf of the assessee that there is no perceptible distinction between the position of law qua cross objection in the matter of filing additional ground. It was submitted that a cross objection has all the trappings of a regular appeal more so in the light of language employed under s.253(4) of the Act. 21.5 We find ourselves in agreement with the propositions made on behalf of the assessee that in a cross objection, there is no bar to raise legal issues for the first time before ITAT. A cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and it is required to be disposed in same manner as an appeal. Even where the appeal is withdrawn or dismissed for default, cross objection may nevertheless be heard and determined. Cross objection is nothing but an appeal, a cross appeal at that. This apart, raising of additional ground would only enable the authority concern to correctly a....