ARVIND FASHIONS LIMITED,AHMEDABAD vs. THE PCIT, AHMEDABAD-1, AHMEDABAD

1. In law and in the facts and circumstances of the Appellant's case, impugned order passed u/s. 263 of the Act is bad in law and deserves to be quashed.

2. In law and in the facts and circumstances of the Appellant's case, the Hon'ble PCIT has erred in passing the order u/s. 263 of the Act without appreciating /considering the explanations / details furnished by the appellant company in its submission dated 16.02.2024 in response to notice issued u/s. 263 of the Act.

3. In law and in the facts and circumstances of the Appellant's case, the Hon'ble PCIT has erred in setting aside the assessment order passed u/s. 143(3) r.w.s. 143(3A) & 143(3B) of the Act dated 06.04.2021 and directing the Ld. Assessing Officer to pass a fresh assessment order in accordance with law and after duly examining the facts of the case of the appellant company.

4. In law and in the facts and circumstances of the Appellant's case, the Hon'ble PCIT has erred in contending that the appellant company has not deducted tax at source on commission and brokerage to the extent of Rs. 5,41,53,485/-, which has resulted in the under assessment of income, without appreciating the facts of the case and provisions of the Act. 5 In law and in the facts and circumstances of the Appellant's case, the Hon'ble PCIT has erred in contending that the appellant company has not furnished any evidence regarding mode of acquisition of the intangible assets in its books of A.Y. 2018-19 Page No 4 Arvind Fashions Ltd. Vs. PCIT accounts and therefore the cost of acquisition of said intangible assets is NIL and depreciation claimed thereon of Rs. 4,65,23,118/- needs to be disallowed.

6. In law and in the facts and circumstances of the Appellant's case, the Hon'ble PCIT has failed to appreciate that the twin conditions for assuming jurisdiction u/s. 263 of the Act are not satisfied in the case of appellant company as issue which has been relied upon for passing the order u/s. 263 does not show any error or prejudice to the interest of the revenue.

7. The appellant company craves leave to add, alter or amend and and/or withdraw any ground or grounds of appeal

either before or during the course of hearing of the appeal.

5. Ld. Counsel Shri Vartik Choksi appearing for the assessee submitted that the accounting policy of the assessee since its inception is to estimate the expenses of current assessment year and claim the very same in same assessment year. But as on the last date of assessment year, the payees could not be identified, therefore, TDS is not deducted for such claim of provision for expenses. The provision made in the preceding assessment year is reversed on the very first day of succeeding assessment year and reduced from expenses claimed in that succeeding Assessment Year. Therefore the amount of provision of expense which has been claimed in current year has already been reduced by the assessee from expenses allowable in subsequent Assessment Year. Thus the accounting treatment is not prejudicial to the interest of Revenue as the provision of expenses claimed in this year has been reduced by passing reverse entry by crediting expenses account in subsequent year and therefore there is no loss to the revenue. This the very same issue has been decided in favour of Assessee’s group company by Co-ordinate Bench of this Tribunal in the case of M/s. Arvind Lifestyle Brands Ltd. vide decision dated 04-01-2021 in ITA No. 1817/Ahd/2016. Thus Ld. Counsel submitted that the twin A.Y. 2018-19 Page No 5 Arvind Fashions Ltd. Vs. PCIT conditions for making revision u/s. 263 is not fulfilled and the Revision order is bad in law.

5.1. The second issue raised by Ld. PCIT regarding allowability of amortization expenses, depreciation claimed by the assessee in respect of Intangible Asset acquired by the assessee in the previous Asst. Year. As far as previous Asst. Year 2017-18, no disallowance of amortization/depreciation was made on intangible/tangible asset, therefore the very same asset goes in to the block of assets and it has lost its independent identity. Therefore in the subsequent Asst. Year that is A.Y. 2018-19 depreciation on block of asset cannot be disallowed and relied upon Mumbai Tribunal decision in the case of M/s. Man Industries (India) Limited which has followed jurisdiction Tribunal decision in the case of M/s. Bodal Chemicals Ltd. thus the assessment order passed by the A.O. cannot be considered as erroneous. Further on merits of the case, assessee had entered into a Business Transfer Agreement with Arvind Lifestyle Brands Limited (ALBL) on 21-10-2016 whereby ALBL agreed to sell, transfer, convey, assign, deliver the business undertaking as a going concern and on a Slump Sale basis for a consideration of Rs. 2,53,25,08,028/-, out of which it the value of Intangible assets transferred under the agreement in the form of Brand Value & License Brands is Rs 21,26,77,109/- that has been recorded in the books of account which can be verified from audited financial statements for the Assessment Year 2017-18 (PB Page no. 31). Further, even in the books of ALBL they have reduced the amount of block of Intangible Asset by very same amount of Rs.21,26,77,109/-which was submitted and A.Y. 2018-19 Page No 6 Arvind Fashions Ltd. Vs. PCIT substantiated before Ld. PCIT vide reply dated 16.02.2024 which is filed at PB Page no. 24 (Relevant). The above merits of the details submitted by the Assessee before PCIT has not been properly considered and it has been rejected for the vague reason that on what objective the basis of valuation has been adopted. Thus Ld. Counsel pleaded that the assessment order is neither prejudicial nor erroneous order and therefore the Revision order passed by Ld. PCIT is liable to be quashed.

F.Y. 2017-18 F.Y. 2018-19 as on 31-03-2018 Rs. 10,89,22,467/- as on 01-04-2018 Rs. (-) 10,86,95,610/- F.Y. 2018-19 F.Y. 2019-20 as on 31-03-2018 Rs.9,63,90,189/- as on 01-04-2019 Rs. (-) 9,63,90,189/- F.Y. 2019-20 F.Y. 2020-21 as on 31-03-2018 Rs. 10,28,94,037/- as on 01-04-2020 Rs. (-) 10,28,94,037/- 7.1. The primary issue whether the assessee is liable to deduct tax for the expenses made on the provisional basis, more particularly in a situation where the parties for such provisional expenses were A.Y. 2018-19 Page No 7 Arvind Fashions Ltd. Vs. PCIT not identifiable at the time of creating such provision in the books of accounts. Ld. PCIT failed to consider the provision for expenses created at the end of the financial year is in accordance with the Mercantile System of Accounting, which is mandatorily required to be followed by the assessee under the provisions of Income Tax Act and Companies Act. Further the provisions made at the end of the year are reversed immediately on the next day i.e. first day of the next financial year which is not considered by Ld. PCIT and came to a conclusion the assessment order passed is erroneous. In our considered view, the assessee having reversed the credit on the first day of the financial year, Ld. PCIT is not correct in holding that the assessee failed to deduct taxes on the commission and brokerage payment of Rs. 5,41,53,485/- for the present Asst. Year 2018-19.

7.2. The Co-ordinate Bench of this Tribunal in the case of Arvind Lifestyle Brands Ltd. (cited supra) considered Chennai Tribunal decision in the case of Dishnet Wireless Ltd. as well as Jurisdictional High Court judgment in the case of Sanghi Infrastructure Ltd. and allowed the issue in favour of the assessee by observing as follows: “20.2 Indeed, the provisions of section 194C, 194H and 194] of the Act requires the assessee to deduct the TDS with respect to sum/income payable to a resident which has to be deposited in the account of Government Exchequer as provided under section 200 of the Act by the assessee. Thereafter, the assessee shall prepare statement containing the details of tax deducted at source which shall be filed within the prescribed time to the income tax authorities as provided under subsection (3) to section 200 of the Act. 20.3 Subsequently, the assessee shall issue a certificate to the person to whose account such credit is given to the effect that tax has been deducted as provided under section 203 of the Act.

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20.4 Thus the cumulative effect of the provisions of section 194C/194H/1943/200/203 of the Act is that after the deduction TDS from the sum/income payable to a person, the same has to be paid to the government exchequer and a certificate has to be issued to the concerned person who is recipient of such sum/income payable by the assessee. But the same is not possible where the recipient of such sum/income payable by the assessee is not identifiable. In other words, the assessee cannot comply the provisions of chapter XVII of the Act with respect to the expenses claimed on provisional basis in a situation where the recipients/parties/payees are not identifiable. In the case on hand, there was no allegation from the revenue that recipients/parties/payees are identifiable. Thus we can safely conclude that recipients/parties/payees are not identifiable in the present case in the given facts and circumstances and accordingly the assessee cannot be treated as assessee is default on account of non-deduction of TDS under the provisions of section 40(a)(ia) of the Act. In holding so, we draw support and guidance from the order of Hon'ble Chennai tribunal in case of Dishnet Wireless Limited vs. DCIT in to 329/Mds/2014 reported in 60 taxmann.com 329 where tribunal held as under: 23. We have considered the rival submissions on either side and perused the relevant material on record. Admittedly, the assessee, a telecom operator, made provision for site restoration expenses, however, TDS was not made. The purpose for which the provision was made is not in dispute. In other words, the admitted case of both the parties is that the assessee made the provision for dismantling the towers and restoration of site to its original position after termination of the lease period. The lease period is normally 20 years and above. The assessee by placing reliance on the Accounting Standard 29 claims that a provision would be made in respect of an obligation. In other words, the assessee had an obligation to incur the expenditure after termination of the lease period. Revenue, however, contends that due to misconception and ignorance of law and with an intention to circumvent the statutory provisions, the assessee made the provision. The fact remains that the payment was not made to anyone and it is not credited to the account of any party or individual. The account does not disclose the person to whom the amount is to be paid. The contractor who is supposed to be engaged for dismantling the tower and restore the site in its original position is not identified. As contended by the assessee, the assessee by itself engaging its own labourers may dismantle the towers and restore the site to its original position. In such a case, the question of deducting tax at source does not arise. The assessee has to pay only the salary to the respective employees. Suppose the work is entrusted to a contractor, then definitely the assessee has to deduct tax. In this case, the contractor would be identified after the expiry of lease penod. Therefore, even if the assessee deducts tax, it cannot be paid to the credit of any individual as rightly pointed out by the Id. Sr. counsel. The assessee has to issue Form 164 prescribed under Rule 31(1)(b) of the Income-tax Rules, 1962 for the tax deducted at source.

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The assessee has to necessarily give the details of name and address of deductee, the PAN of deductee and amount credited. In this case, the assessee could not identify the name and address of deductee and his PAN. The assessee also may not be in a position to quantify the amount required for incurring the expenditure for dismantling and restoration of site to its original position. In those circumstances, this Tribunal is of the considered opinion that the provision which requires deduction of tax at source fails. Hence, the assessee cannot be faulted for non-deduction of tax at source while making a provision. Therefore, we are unable to accept the contention of the Id. D.R. Accordingly, the orders of the lower authorities are set aside and this ground of appeal is allowed. 20.5 We also find support from the order of the Hon'ble Jurisdictional high court in case PCIT vs. Sanghi Infrastructure Ltd. reported in 96 taxmann.com 370 where the Hon'ble court held as under:

4. Now, so far as the proposed question No. B viz. deleting dis-allowance made on account of lease rental payments, dis-allowance of Rs. 70 lakh under Section 37(1) of the IT Act on account of operating and maintenance charges and repairs and maintenance charges of Rs.60 lakh under Section 40(a)(ia) of the IT Act on the payments on which TDS was not deducted by the assessee is concerned, it is required to be noted that in the year under consideration, no TDS was deducted as the same was contingent liability and the bills were not issued which were issued subsequently and on that the TDS was deducted as and when the final bills were received. Considering the above, no error has been committed by the learned CIT (A) as well as the learned Tribunal in deleting the dis- allowance. We are in complete agreement with the view taken by the learned Tribunal as well as the learned CIT (A). 20.6 Respectfully following the above judicial precedents we hereby allow the ground of appeal of the assessee and dismiss the ground of appeal of the Revenue.”

7.3. Respectfully following the above judicial precedents, Ground No. 4 raised by the assessee is hereby allowed.

A.Y. 2018-19 Page No 11 Arvind Fashions Ltd. Vs. PCIT 8.1. Similarly in the books of ALBL the very same amount of Rs.21,26,77,109/- (Gross Value Rs. 52,33,94,600/- Less Accumulated Depreciation- Rs. 31,07,17,491/-) which is shown at Note No. 6 as intangible assets which was produced before Ld. PCIT by the assessee. However the same was not considered by Ld. PCIT.

8.2. The Co-ordinate Bench of this Tribunal in the case of Bodal Chemicals Ltd. Vs. ACIT reported in [2019] 112 taxmann.com 217 held that pursuant to scheme of amalgamation, assessee claimed depreciation on goodwill representing higher amount paid to transferor company as compared to its net assets, in view of fact that relevant year was second year of amalgamation whereas assessee’s claim for depreciation had been allowed in the first year of amalgamation by the Revenue Authorities following the principle of consistency, the assessee’s claim for the second year cannot be disturbed by observing as follows: “12. Now coming to the present facts of the case we note that Indeed there was no entry in the books of the transferor company for the intangible assets/goodwill being self-generated assets. Thus in the backdrop of the above stated facts we are of the view that impugned transaction for claiming the deduction on account of the depreciation is an arrangement for claiming the higher depreciation which is unwanted under the provisions of law. Before parting, we are conscious to the fact that the assessee was allowed for depreciation in respect of such goodwill in the 1st year of amalgamation i.e. AY 2006-07. There was no action either under section 263 or 147 of the Act by the revenue. Therefore we can safely presume that the claim of the depreciation of the assessee in the 1st year has attained finality. Admittedly the 1st year is the base assessment year from where the issue of depreciation is emanating.

having any change in the facts and circumstances. In our considered view, in such a case the principles of consistency shall be applied as held by the Hon'ble Bombay High Court in the case of Pr. CIT v. Quest Investment Advisors Ltd. [2018] 96 taxmann.com 157/257 Taxman 211/409 ITR 545 wherein it was held as under: "Once this principle was accepted and consistently applied and followed, the revenue was bound by it Unless of course it wanted to change the practice without any change in law or change in facts therein, the basis for the change in practice should have been mentioned either in the assessment order or atleast pointed out to the Tribunal when it passed the impugned order. None of this has happened. In fact, all have proceeded on the basis that there is no change in the principle which has been consistently applied for the earlier assessment years and also for the subsequent assessment years. Therefore, the view of the Tribunal in allowing the respondent's appeal on the principle of consistency cannot in the present facts be faulted with, as it is in accord with the Apex Court decision in Bharat Sanchar Nigam Ltd. v. Union of India (2006) 282 ITR 273. [Para 9]" In view of the above, the assessee succeeds on the principle of consistency. Accordingly we set aside the order of the learned CIT (A) and direct the AO to allow the depreciation to the assessee. Hence the ground of appeal of the assessee is allowed.” 8.3. This view of the Tribunal is been followed by the Mumbai Bench of this Tribunal in the case of Man Industries (India) Ltd. Vs. ACIT in dated 28-10-2022 held as follows: “10. Under these facts, it is contention of the assessee that the AO could not have disallowed in the subsequent years, since the depreciation has been allowed in the first year. We notice that the above said proposition of the assessee finds support from the decision rendered by Ahmedabad bench of ITAT in the case of Bodal Chemicals Ltd (supra), wherein it was held that the revenue, once allowed the deduction for the depreciation claimed by the assessee, then it is debarred to reject the claim of the assessee in the subsequent year on the WDV carried forward from the earlier assessment year. Though the AO had disallowed the claim of depreciation made in AY 2013-14, being the first year of claim, the same A.Y. 2018-19 Page No 13. Arvind Fashions Ltd. Vs. PCIT was deleted by Ld CIT(A) and the ITAT. As such the claim of depreciation made in the first year has been allowed. Hence, there is merit in the above said contention of the assessee.

11. In our view, the issue before us can be looked at from another angle also. There should not be any dispute that the identity and character of the asset, which has entered into the block of asset, would be lost. It was so held by Hon'ble Delhi High Court in the case of Bharat Aluminium Co Ltd (ITA No.532 and others of 2006 dated 15-10-2009) as under:- "(i) The rationale and purpose for which the concept of block asset was introduced as reflected in the CBDT's Circular dated 23.09.1988 is that once the various assets are clubbed together and become block asset within the meaning of a. 21111, it becomes one asset. Every time, a new asset is acquired, it is to be thrown into the common hotchpotch, i.e. block asset on meeting the requirement of depreciation being allowable at the same rate. Individual assets lose their identity and become an inseparable part of block asset insofar as calculation of depreciation is concerned (ii) The fusion of various assets into the block asset gets disturbed only when the eventuality contained in clause (iii) of s. 32 takes place, viz, when a particular asset is sold discarded or destroyed in the previous year (other than the previous year in which first brought in use). Even in that event, the amount by which the moneys payable in respect of that particular building, machinery, etc. together with the amount of scrap value is to be deducted from total written down value of the block asset' (iii) Though as per s. 32(1) the asset is to be owned and "used" for the purpose of business or profession, the expression "used for the purpose of business when applied to block asset would mean use of block asset and not any specific items in the said block as individual assets have lost their identity after becoming inseparable part of the block asset liv) The fact that under the second proviso to s. 32 assets acquired after 30th Sept shall be entitled to 50% depreciation of amount admissible does not mean requirement of user of individual asset remains intact. In the first year when the particular asset is acquired, user of the asset is required, in subsequent years, the user of individual assets is not required."

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In the instant case also, the TDS liability borne by the assessee on the premium amount, after it is thrown into the common hotchpotch of block asset in AY 2013-14 has lost its identity and become an inseparable part of block asset insofar as calculation of depreciation is concerned. Hence the AO could not have disallowed the depreciation claim as made in the first year.” 8.4. Respectfully following the above precedents, ground no. 5 raised by the assessee is allowed. Thus the Revision order passed by Ld. PCIT is hereby quashed and the remaining grounds of appeal does not require adjudication.

Order pronounced in the open court on 29-05-2025