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Income Tax Appellate Tribunal, DELHI BENCH “B ”: NEW DELHI
Before: SHRI BHAVNESH SIANI & SHRI PRASHANT MAHARISHI
O R D E R PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the Revenue against the order of the ld CIT(A), XIII, New Delhi dated 01.02.2011 for the Assessment Year.. 2006-07. 2. The revenue has raised the following grounds of appeal:- “1. On the facts and circumstances of the case and in law, the CIT(A) has erred in deleting the addition of Rs. 4478750/- on account of disallowance of depreciation u/s 32 of the Act.”
3. The facts shows that assessee is a company engaged in the business of wholesale trading in general and specialty chemicals. It filed its return of income on 29.11.2006 at a loss of Rs. 11261525/-. During the course of assessment proceedings it was noted that assessee has acquired running business from Nitrex Chemicals India Ltd and paid non compete fees of Rs. 35830000/- and claimed deprecation thereon @25% under the head “intangible assets”. The claim of the assessee was rejected because assessee has debited 1/5 of non compete fees in profit and loss account as restriction is for period of five years. The claim of the ld AO is that assessee has not acquired any intangible assets as the business of the assessee is specialized and there are not many other players who can enter into its business because of its complexity. Consequently, depreciation was disallowed to the extent of Rs. 4478750/-. The Assessment order was passed on 18.12.2008 determining total loss of the assessee at Rs.
DCIT Vs. EAC Industrial Ingredients India P. Ltd, (Assessment Year: 2006-07) 4767780/-. The assessee preferred appeal before the ld CIT(A), who allowed the claim of the assessee and therefore, revenue is in appeal before us.
The ld Departmental Representative stated that issue is squarely covered against the assessee by the decision of the Hon'ble Delhi High Court in case of Sharp Business System Vs. CIT 254 CTR 233 (Del).
The ld AR vehemently supported the order of the ld CIT(A) and submitted that non compete fees paid partakes the character of “intangible asset” in view of amendment w.e.f. Assessment Year 1999-2000 and depreciation is allowable in view of the decision of Hon'ble Supreme Court in case of Smif Securities Ltd. He referred to various clauses of the business transfer agreement. In the end he submitted that assessee has acquired an intangible asset which is subject to deprecation u/s 32(1)(2) of the Act. He vehemently supported the order of the ld CIT(A). With respect to the decision of the Hon'ble Delhi High Court referred to by the ld Departmental Representative of Sharp Business Systems, he submitted the decision Hon’ble Karnataka High Court in case of CIT Vs. Ingersoll Rand International Ind. Ltd. dated 30.06.2014, where above decision was considered.
We have carefully considered the rival contentions and also perused the orders of the lower authorities. Assessee is wholly owned subsidiary of EAS Industrial Ingredients PTE Ltd incorporated on 03.10.2005. It purchased the trading unit of Nitrex Chemicals for a total consideration of 244.06 million as a going concern on slump sale basis vide business transfer agreement dated 14.10.2005. According to the BTA the assessee has paid a non compete fee of 35.83 million for a period of five years included in above consideration. The assessee claimed Rs. 4478750 as depreciation on the above sum considering it as “intangible asset”. The ld Assessing Officer denied the claim holding that the business is of specialize nature and there are no chances that other parties can enter into the business due to its complexity. Therefore, according to him the assessee has not acquired any intangible asset. The ld CIT(A) while adverting ground No. 4 has held that by the amendment to the income tax act by the Finance Act 1998 w.e.f. AY 1999-2000, the intangible asset are eligible for depreciation. According to him, any right which is obtained for carrying on the business will fall in the definition of intangible asset. Hence, he deleted the addition. However, this issue squarely is covered against the assessee in view of the decision of the Hon'ble Delhi High Court in case of Sharp Business Systems Vs CIT, ITA No. 492/2012 dated 05.11.2012 wherein, in para No. 11 to 13 Hon'ble High Court has decided this issue against the assessee that non compete fee is not an eligible intangible asset as the words “similar business or commercial rights” have to necessary result in an intangible asset against the entire word Page | 2