2011 (8) TMI 1159 - AT - Income Tax

Nature of Compensation paid to Forest Department - payment as Net Present Value (NPV) as per the direction of Apex Court for smooth running of business / mines activities - Captial or Revenue Expenditure - Allowable u/s 37(1) or not? - Assessee claimed that this expenditure was obligatory in nature - CIT(A) considered it as revenue expenditure - HELD THAT - It is relevant to state that facts and the issue involved in this appeal before us are identical to the facts and issue in ASSISTANT COMMISSIONER OF INCOME TAX VERSUS RUNGTA SONS (P) LTD 2014 (1) TMI 1515 - ITAT KOLKATA . Following the decision in the said case we hold that the said expenditure is paid by the assessee as NPV to the Divisional Forest Officer to enable the assesee to carry on its mining business is revenue in nature which is allowable as business expenditure under section 37(1) of the Act. Therefore we uphold the order of ld. CIT(Appeals)

Issues Involved:
1. Allowability of Net Present Value (NPV) as business expenditure under Section 37(1) of the Income Tax Act, 1961.
2. Deletion of addition made for delayed payment of Employees' Contribution to the Provident Fund (PF).

Detailed Analysis:

Issue 1: Allowability of Net Present Value (NPV) as Business Expenditure

The primary issue under consideration was whether the payment of Rs. 2,96,76,750/- as Net Present Value (NPV) to the Forest Department for utilizing forest land for mining purposes could be allowed as a business expenditure under Section 37(1) of the Income Tax Act, 1961.

The assessee argued that the NPV was paid as a statutory obligation as per the directions of the Hon'ble Supreme Court and guidelines issued by the Ministry of Environment & Forests. The payment was necessary for the smooth running of the mining business and did not result in the acquisition of any capital asset, thereby classifying it as a revenue expenditure.

The Assessing Officer (AO) contended that the NPV payment was a one-time levy categorized as a fee by the Supreme Court, thus treating it as a capital expenditure. Consequently, the AO added the amount back to the income of the assessee.

The CIT(A) reversed the AO's decision, referencing the Hon'ble Supreme Court's ruling in the case of Bikaner Gypsums Ltd., which stated that expenses incurred for the removal of any restriction or disability in the course of business operations are of a revenue nature, provided no capital asset is acquired.

The Tribunal upheld the CIT(A)'s decision, emphasizing that the NPV payment was a statutory requirement for continuing mining operations and did not result in acquiring any tangible asset. The Tribunal also referenced similar cases, including the Hon'ble Kolkata High Court's decision in the case of M/s. Essel Mining & Industries and the ITAT's decision in the case of National Aluminium Co. Ltd., which supported the classification of such payments as revenue expenditures.

Issue 2: Deletion of Addition Made for Delayed Payment of Employees' Contribution to PF

The second issue involved the deletion of the addition made by the AO for the delayed payment of Employees' Contribution to the Provident Fund (PF). The CIT(A) had deleted the addition, stating that the payment was covered under the provisions of Section 43B of the Income Tax Act.

During the hearing, the assessee's representative did not object to the reversal of the CIT(A)'s order and the restoration of the AO's finding, as the assessee had failed to deposit the Employees' Contribution before the due date of filing the return.

The Tribunal, considering the submission, restored the AO's action by reversing the CIT(A)'s order, thereby allowing the Department's appeal on this ground.

Conclusion:

The Tribunal concluded that the appeal of the Department is partly allowed. The NPV payment was upheld as a revenue expenditure allowable under Section 37(1) of the Income Tax Act, while the deletion of the addition for delayed payment of Employees' Contribution to PF was reversed, restoring the AO's original finding.

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