2002 (12) TMI 34 - HC - Income Tax

Income arising out of the business of the erstwhile firm - capital gains arising out of the sale of the assets of the firm to the present assessee-AOPs-3 assessability deduction u/s 37 - deduction of amount being interest and service charges paid to financial institutions - Whether the assessee-AOPs-3 was entitled to claim depreciation on lands, buildings, plant and machinery - Whether the assessee was entitled to claim any deduction on the alleged expenditure of acquisition of patent rights, copy rights and know-how in terms of sections 35A and 35AB - deduction of amount representing the interest paid to the outgoing partners deduction of amount representing undistributed and accumulated profits

Summary

Issues Involved:

1. Assessment of income for the period before and after the transfer of business.
2. Deduction of interest and service charges as revenue expenditure.
3. Deduction of legal expenses.
4. Entitlement to depreciation for the entire previous year.
5. Deduction for acquisition of patent rights, copyrights, and know-how.
6. Deduction of profits earned during the period of business carried by the previous association.
7. Treatment of trade marks, copyrights, and technical know-how as plant and machinery for depreciation.
8. Allowance of accumulated profits as revenue expenditure.
9. Deduction of interest paid to outgoing partners.

Detailed Analysis:

1. Assessment of Income:
The Tribunal held that the income of the business carried on by the AOPs-13 till November 20, 1994, could not be assessed in the hands of the AOPs-3. The business was carried on behalf of the AOPs-13, and the capital gains from the sale of the firm's assets should not be included in the AOPs-3's assessment. The court agreed, stating that the income assessable for the AOPs-3 is the actual profits earned for the year ended March 31, 1995.

2. Deduction of Interest and Service Charges:
The Tribunal upheld the deduction of Rs. 13,96,08,653 as revenue expenditure for interest and service charges paid to financial institutions. The members of AOPs-3 had borrowed Rs. 113.75 crores for purchasing the firm's assets, and the Commissioner of Income-tax (Appeals) found the claim admissible. The court upheld this finding.

3. Deduction of Legal Expenses:
The Tribunal erred in allowing Rs. 12,24,700 as revenue expenditure for legal expenses incurred by AOPs-3. These expenses were for defending personal rights in a company application alleging fraud. The court held that these expenses were not for the business of the AOPs-3 and thus not allowable as revenue expenditure.

4. Entitlement to Depreciation:
The Tribunal mistakenly granted 100% depreciation for the entire previous year. The business was carried on by AOPs-3 for only 131 days, less than 180 days. Therefore, the court held that AOPs-3 was entitled to only 50% depreciation as per the second proviso to section 32(1) of the Act.

5. Deduction for Acquisition of Patent Rights, Copyrights, and Know-how:
The Tribunal's direction to allow deductions under sections 35A and 35AB was erroneous. The court found no transfer of know-how or acquisition of patent rights. Beedi manufacturing is not patentable, and expenses on trademarks are not covered under these sections. The court held that the Tribunal erred in this direction.

6. Deduction of Profits Earned During Previous Association:
The Tribunal correctly allowed the deduction of Rs. 9,57,57,007.35, representing the deemed income of AOPs-13 for 234 days. This amount was payable to non-purchasing partners and should be deducted from the total book profits for the financial year 1994-95. The court found no error in this deduction.

7. Treatment of Trade Marks, Copyrights, and Technical Know-how:
The Tribunal's direction to treat these as part of plant and machinery for depreciation was incorrect. The court found no assets like copyright or technical know-how with assignable value. The valuer's bifurcation of goodwill into these parts was unfounded. The court set aside the Tribunal's direction.

8. Allowance of Accumulated Profits:
The Tribunal erred in allowing Rs. 68,94,34,272 as revenue expenditure. This amount represented accumulated profits of AOPs-13, unrelated to AOPs-3's business. The court held that this payment was capital in nature and set aside the Tribunal's direction.

9. Deduction of Interest Paid to Outgoing Partners:
The Tribunal correctly allowed the deduction of Rs. 69,49,209 as revenue expenditure. This amount represented interest paid to outgoing partners, who were not members of AOPs-3. The court upheld this finding.

Conclusion:
The appeals filed by the Department were allowed in part, with each party bearing their own costs.