2010 (1) TMI 921 - AT - Income Tax

Addition of income - Arms length price - Deduction u/s 35D - Held that assessee has not charged interest on fees receivable by it from WSN and whereas it has charged interest on a loan granted to NCWL, the rate of interest charged was at 2.262 per cent per annum - assessee has not charged interest on fees receivable by it from WSN and whereas it has charged interest on a loan granted to NCWL, the rate of interest charged was at 2.262 per cent per annum - Decided in favor of the assessee Regarding amortization u/s 35D - incurring of the expenditure was for the purpose of raising capital by way of public issue and as the public issue got aborted - As there is no controversy on the issue whether the assessee has incurred this expenditure or not and as the nature of expenditure reflect that they are revenue in nature and as the assessee has not got any enduring benefit - Decided in favor of the assessee Regarding disallowance of expenditure of Rs. 1,92,27,929 - Held that assessee in his paper book, has submitted minute details of the expenditure incurred, statement of accounts, copy of invoices, etc - ssessee admits that some of the vouchers are self-made vouchers, there can be an element of personal expenditure as well as inflation of expenditure - AO is directed to restrict the same to 10 per cent - Appeal is partly allowed

Summary

Issues:
1. Adjustment in respect of arm's length price on a transaction with an associated enterprise.
2. Disallowance of expenditure incurred on web site development and other expenses.
3. Allowability of expenditure incurred on proposed public issue.
4. Disallowance of certain expenses claimed under section 35D.

Adjustment in respect of arm's length price on a transaction with an associated enterprise:
The appeal was filed against the CIT (Appeals) order for the assessment year 2003-04. The Assessing Officer made additions based on the order under section 92CA(3) of the Income-tax Act. The appellant contested the adjustments made in respect of arm's length price with an associated enterprise. The appellant argued that the Transfer Pricing Officer did not follow the prescribed methods under section 92C for determining the arm's length price. The TPO's adjustment based on interest charges was challenged as the appellant had not charged interest on fees receivable from the associated enterprise. The Tribunal agreed with the appellant's submissions and deleted the additions both on legal grounds and merits.

Disallowance of expenditure incurred on web site development and other expenses:
The appellant contested various disallowances made by the Assessing Officer, including expenditure on web site development and other expenses. The appellant argued that the disallowances were excessive and unreasonable. The appellant provided detailed documentation and evidence to support the expenditure incurred. The Tribunal found that the disallowances were excessive and directed the Assessing Officer to reduce the disallowance from 25% to 10% for certain expenses. The Tribunal allowed this ground of the appellant in part.

Allowability of expenditure incurred on proposed public issue:
The appellant claimed expenditure of Rs. 87,21,675 towards an initial public offer of shares, which was later aborted. The appellant argued that the expenditure should be treated as a revenue loss under section 37 as no enduring benefit had accrued. The Tribunal considered the nature of the expenditure and concluded that as the public issue was aborted, the expenditure was in the revenue field and allowable under section 37. The Tribunal upheld the appellant's contention and allowed ground No. 6 of the appeal.

Disallowance of certain expenses claimed under section 35D:
The appellant challenged the disallowance of expenses claimed under section 35D. The Assessing Officer had disallowed a portion of the claimed expenses. The Tribunal found that the expenses in question were revenue in nature and not capital expenditure. As no enduring benefit had accrued to the appellant, the expenditure was held to be allowable under section 37. The Tribunal directed the Assessing Officer to restrict the disallowance to 10%. The appellant's appeal was allowed in part on this ground.