Case Law Details
M/s. Banc Tec TPS India. Pvt. Ltd. Vs ACIT (ITAT Mumbai)
Insofar as the factual position relating to the aforesaid issue is concerned, there is no dispute. Even the Assessing Officer has stated that the assessee had transferred its business on slump sale basis to which included goodwill of Rs. 11,51,01,122. The aforesaid goodwill was also reflected not only in the respective books of account of the assessee and the transferee company but also appears in the financial statements.
It is also a fact that the subsequent amalgamation between the assessee and Tracmail AR Services Pvt. Ltd. was by virtue of a scheme of amalgamation approved by the Hon’ble Jurisdictional High Court. That being the case, it cannot be said that the assessee has entered into a circular transaction or adopted a colourable device for claiming depreciation.
Moreover, in the return of income filed for the assessment year 2009– 10, the assessee had offered capital gain on the transfer of goodwill of Rs. 11,51,01,122. However, in the course of assessment proceedings for the assessment year 2008–09, the Assessing Officer was of the view that the capital gain on goodwill has to be assessed in assessment year 2008–09. Accordingly, he proceeded to assess the amount of Rs. 11,51,01,122, as short term capital gain in assessment year 2008– 09. Thus, when the assessee has paid capital gain tax at the time of transfer of goodwill and the Department has accepted it, it cannot be said that the assessee has adopted a colourable device.
Moreover, the scheme of amalgamation between the assessee and Tracmail AR Services Pvt. Ltd., having been approved by the Hon’ble Jurisdictional High Court, no doubt can be raised with regard to the transparency or genuineness of such transaction. Thus, when the assessee by virtue of such amalgamation has received back the goodwill in its book, depreciation has to be allowed on goodwill. As regards the doubt raised by learned DRP that the assessee cannot claim depreciation on the entire amount of goodwill, it must be observed that the assessee has claimed goodwill on the opening WDV only and not on the entire amount.
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