Income Tax Appellate Tribunal

Income Tax Appellate Tribunal, Mumbai: Vodafone India Services Pvt. Ltd. (‘Vodafone’) filed an appeal against the order of the Commissioner of Income Tax CIT(A) arising out of the final assessment order passed under Section 143(3) read with Section 144-C(13) of the Income Tax Act, 1961 (‘IT Act’) for the assessment year 2009-10, wherein it did not allow the depreciation claimed on goodwill. The two-member bench of Aby T. Varkey, JM and Amarjit Singh, AM, has held that Vodafone was legally entitled to claim depreciation on the goodwill acquired pursuant to slump sale acquisition of Call Centre Business (‘CCB’) from Vodafone Essar Gujarat Ltd. (‘VEGL’). Thus, it directed the Assessing Officer (‘AO’) to compute and allow the same in accordance with law.

Vodafone is engaged in the business of Information Technology Enabled Services (ITES) such as Call Centre. It had filed its return of income for assessment year 2009-10 on 30-09-2009 declaring income of Rs.21,51,35,898/-. The return was processed under Section 143(1) IT Act. Later, the case was selected for scrutiny. It is noted that the AO had also made a reference to the Transfer Pricing Officer (‘TPO’) who, in his order under Section 92CA (3) of the Act had made a transfer pricing adjustment of Rs.1397 crores on account of shortfall in price of shares issued to the AE and interest on deemed loan. Upon receipt of the said transfer pricing order, the AO passed a draft assessment order under Section 143(3)/144C (1) of the Act. Aggrieved by the same, Vodafone challenged the draft assessment order and the order of the TPO before the Dispute Resolution Panel and also before the Bombay High Court.

Issues and Analysis:

Whether the claim made by Vodafone regarding depreciation on goodwill for the first time during original assessment can be legally entertained considering the decision of Supreme Court in Goetze (India) Ltd. v. Commissioner of Income-tax, (2006) 284 ITR 323 ?

The Tribunal noted that Vodafone had entered into a Business Transfer Agreement (‘BTA’) for purchase of CCB. The details of assets set out in the BTA also included the associated goodwill of the said CCB business. According to Vodafone, the goodwill of CCB business inter alia comprised of the commercial rights acquired to render CCB services in States of Rajasthan and Gujarat along with access to customer lists, data bank of both Vodafone Essar Gujarat Ltd. (‘VEGL’) and Vodafone Essar Digilink Ltd (VEDL), market knowhow relating to customers of Vodafone-Essar along with customer behavior in these territories etc.

It also noted that, originally in the return of income filed on 30-09-2009, Vodafone had not claimed depreciation on goodwill. Further, the aforesaid claim for depreciation on goodwill was raised before the AO; however, the AO did not comment on this claim in the draft assessment order passed on 22-03-2013. Being aggrieved, Vodafone before CIT(A), had raised this claim for depreciation on goodwill, who had rejected the same.

After perusing the decision in Goetze (India) Ltd (supra), the Court noted that the Court had only placed fetter on the AO from admitting claim of the assessee which was otherwise not made in the return of income. However, the Court clarified in the same order that the restriction placed on AO from admitting new claim of the assessee would not impinge the powers of Tribunal in doing so.

Further, it noted the decision in CIT v. Pruthvi Brokers & Shareholders P. Ltd., 2012 SCC OnLine Bom 815 wherein, the Court explained that the decision in Goetze India Limited (supra) was confined to where the claim was made only before the AO and not before the appellate authorities. Thus, the Tribunal held that the powers of the CIT(A) being the first appellate authority as well as this Tribunal are wide enough to entertain the Vodafone’s plea for depreciation on goodwill, which had not been claimed in the return of income, but relevant facts on the issue was placed before the AO.

Whether the depreciation claimed by the appellant was allowable on merits or not?

Examining the prevailing legal position on the allowability of depreciation claimed on goodwill, the Court noted the decision in CIT v. Smifs Securities Ltd., (2012) 13 SCC 488 wherein it was held that goodwill acquired on amalgamation (being difference between the net book value of assets and consideration paid) was a capital right which would fall under the expression ‘any other business or commercial right of a similar nature’ and hence eligible for depreciation while computing business income.

The Tribunal noted that the provisions of Section 2(11) and Section 32 of the Act have since been amended by the Finance Bill, 2021 with effect AY 2021-22 and onwards, wherein it has been provided that “goodwill” is not an intangible asset eligible for depreciation under Section 32 of the Act. Further, the amendment has been made applicable only prospectively from AY 2021-22 and onwards.

The Tribunal noted that Parliament had taken due note that the Supreme Court had held that the goodwill arising on business reorganization i.e. amalgamation, slump sales, demerger etc. is a depreciable intangible asset under Section 32 of the Act. The Legislature has accordingly amended the provisions of Section 32 and Section 2(11) of the IT Act to specifically exclude goodwill from the ambit of ‘intangible asset’ and claim of depreciation thereon. The amendment brought in by the Finance Act, 2021 and the Memorandum explaining the provisions of the Bill makes it explicitly clear that, the amendment was prospective.

After relying on Smifs Securities Ltd (supra), the Tribunal held that the Vodafone was legally entitled to claim depreciation on the goodwill acquired pursuant to slump sale acquisition of CCB Business from VEGL. Thus, it directed the AO to compute and allow the same in accordance with law.

[Vodafone India Services Pvt Ltd v. DCIT, 2023 SCC OnLine ITAT 975, Order dated 18-12-2023]

Advocates who appeared in this case :

Assessee by: Advocate Fereshte Sethna

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