2003 (12) TMI 579 - AT - Income Tax

Preliminary expenses - disallowance on account of issue expenses on the convertible portion of partly convertible debentures (PCD) and expenses on issue of shares claimed u/s 35D - HELD THAT -We are of the considered opinion that the disallowance of Rs. 11, 01, 379 towards expenses on convertible portion of partly convertible debentures is allowable as revenue expenditure. But regarding the disallowance of Rs. 68, 096 u/s 35D on the ground that the assessee is not an industrial undertaking the issue was not really pressed by the learned AR and we sustain the order of the learned CIT(A) on this count. Hence the assessee gets part relief of Rs. 11, 01, 379 on this ground out of Rs. 11, 69, 475. In the case in hand also the deposit with the bank is kept under mandatory situation and hence respectfully following the judgment of the co-ordinate Bench of the Tribunal in ITA the assessee succeeds on this ground. In the result the appeal is partly allowed.

Summary

Issues involved: Disallowance of expenses on convertible portion of partly convertible debentures and issue of shares under section 35D, not allowing interest income deduction from share issue expenses, disallowance of membership fees paid to OTCEI, and deduction under section 80M.

Disallowed expenses on convertible debentures and issue of shares: The appeal was against disallowance of Rs. 11,01,379 for issue expenses on convertible debentures and Rs. 68,096 for issue of shares under section 35D. The conversion of debentures into shares in the same year led to the disallowance. The argument was made that the conversion timing should not change the character of the debentures issued. Various judgments were cited to support the claim that expenses on the convertible portion of debentures are revenue expenditure. The Tribunal agreed that the expenses were for the issue of debentures and allowed the disallowance of Rs. 11,01,379 but sustained the disallowance of Rs. 68,096 under section 35D.

Interest income deduction from share issue expenses: The interest income of Rs. 5,43,257 was not allowed to be deducted from share issue expenses. The argument was based on a judgment where interest earned on a deposit linked to the purchase of assets was considered a capital receipt. The Tribunal found that the deposit in this case was under a mandatory situation and allowed the deduction of interest income against share issue expenses.

Disallowed membership fees paid to OTCEI: The disallowance of membership fees of Rs. 2 lakhs paid to OTCEI was challenged. It was argued that similar cases were decided in favor of the assessee by the Tribunal, and hence, the addition was deleted by following the precedent.

Deduction under section 80M: The ground regarding deduction under section 80M was not pressed by the Authorised Representative and hence dismissed as not pressed.

In conclusion, the appeal was partly allowed, with relief granted on certain grounds while others were sustained or dismissed based on the arguments and legal precedents presented during the proceedings.