2011 (4) TMI 175 - HC - Income Tax

Penalty - Addition - In computation of the income, the assessees showed 45% of Rs.7.40 crores as relating to manufacturing activity, taxable under Section 55 of the Income Tax Act and balance 55% relating to the marketing activity, not liable to be charged to tax - Assessing Officer while arriving at his conclusion regarding the weightage of 38% to the component of non-competing (marketing) and 62% to that of manufacturing he referred to good and valuable literature on the subject. While the work done by the Assessing Officer is appreciable, at the same time, the manner of arriving at this conclusion needs to be deprecated - In this view of the situation, as no defect is pointed out in such observation of CIT(A) that all the points were considered by Earnest & Young in their report for which the another weightage was given by the AO - Assessing Officer if not satisfied could not have substituted his views by discarding the report of M/s.Ernst and Young Pvt. Ltd. without calling for the report of another expert - The issues involved have wide ramifications - Appeals are disposed of by way of remand

Summary

Issues:
1. Discrepancies in the report of M/s.Ernst and Young Pvt. Ltd.
2. Disallowance on non-compete fee by Assessing Officer.
3. Appeals before Commissioner, Income Tax (Appellate) [CIT(A)].
4. Order of CIT(A) and Tribunal.
5. Comparison of items in the report.
6. Weightage of non-competing and manufacturing components.
7. Expert opinion and valuation report.
8. Tribunal's decision and Supreme Court reference.
9. Assessment process and remand to Assessing Officer.

Analysis:
1. The appeals were against the common order of the Income Tax Appellate Tribunal regarding discrepancies in the report of M/s.Ernst and Young Pvt. Ltd. The assessees received a sum for a non-compete agreement and showed income in their tax returns. The Assessing Officer found discrepancies in the report leading to a disallowance on the non-compete fee.

2. The Assessing Officer made an addition to the income based on his conclusion of the manufacturing and marketing components. The assessees appealed to the CIT(A) which was allowed, leading to further appeals by the Revenue. The Tribunal dismissed the Revenue's appeals against the order of CIT(A) regarding the disallowance.

3. The Revenue tried to justify the Assessing Officer's order by pointing out missing items in the report. However, the assessees argued that the report covered all necessary factors and that the issue was not raised before the CIT(A) or the Tribunal by the Revenue.

4. The CIT(A) relied on the report of M/s.Ernst and Young Pvt. Ltd. and a comparative chart presented by the assessees to support their claims. The Tribunal accepted the CIT(A)'s findings and declined to interfere in the matter, upholding the allocation done by M/s.Ernst and Young.

5. The Court noted that the Assessing Officer, while referring to literature, should have verified or compared the report with another expert opinion. The Court emphasized the importance of expert opinions in complex matters like allocation of expenses.

6. Referring to a similar case before the Supreme Court, the Court highlighted the need for engaging an expert if the Assessing Officer is not satisfied with the report. The Court concluded that the Assessing Officer should not have substituted his views without seeking another expert opinion.

7. The Court decided to remand the matter back to the Assessing Officer for seeking an opinion from an expert on the subject. Both appeals were disposed of accordingly, emphasizing the importance of expert opinions in such cases and the need for a proper assessment process.

8. The Court directed the assessees to provide all necessary information to the Revenue or their expert. The judgment highlighted the significance of expert opinions and the proper assessment process in resolving complex tax matters.