2011 (9) TMI 636 - AT - Income Tax

Consultation/ development fee - revenue or capital expenditure - Held That - A perusal of the facts clearly show that assessee and the operators i.e. M/s RHW Hotel Management Services Ltd., agreed on a formula for two types of fee. The amount in question for A.Y. 2001-02 & 2002-03 was on account of providing of technical know-how and expert knowledge prior to the commencement. By own admission of assessee it was not engaged into hospitality business and diversified from business of construction of buildings. In these circumstances, we see no infirmity in the order of CIT(A), holding that the restaurant business was a new business and expenditure was for setting up the same and the expenses were not allowable as business in nature. Deduction under 80IB - Held That - The built up area of houses in the project, except 5 houses in East End Loni and 6 houses in Avantika Aakriti, did not exceed the statutory limit of 1000 sq. ft.The construction of all the housing projects effectively commenced after the statutory date of 1-10-1998 and therefore, deduction u/s 80-IB(10) was rightly claimed and allowed in the original assessment proceedings. Issue is covered by the ITAT order in assessee s own case for earlier years. Ground Dismissed. CIT(A) deleted Prior period Expense - Held That - expenditure in question pertains to consumption of electricity, which was received and payable this year, we see no infirmity in the order of CIT(A), which is upheld. Notional rent on unsold flats - Held That - M/s Ansal properties and Industries Ltd. in ( 1989 -TMI - 63212 - ITAT DELHI-A ) case decided in favour of asseseee.

Summary

Issues Involved:
1. Deduction under section 80-IB(10)
2. Allowability of consultancy/development fees as revenue expenditure
3. Prior period expenses
4. Notional rental income on unsold flats
5. Charging of interest under sections 234B and 244A
6. Withdrawal of interest under section 244A
7. Additional ground of expenditure on RHW Hotel Management Services Ltd.

Issue-wise Detailed Analysis:

1. Deduction under section 80-IB(10):
The revenue appealed against the CIT(A)'s decision to allow the deduction under section 80-IB(10) for various projects. The main contention was that the projects commenced before the cut-off date of 1-10-1998 and that the built-up area exceeded the statutory limit of 1000 sq. ft. The ITAT upheld the CIT(A)'s decision, noting that except for a few units, the projects adhered to the statutory requirements. The ITAT referenced its earlier decisions in the assessee's favor for A.Y. 2000-01 and 2001-02, confirming that the construction commenced post the statutory date and that the built-up area was within permissible limits, except for a few units.

2. Allowability of consultancy/development fees as revenue expenditure:
The assessee claimed consultancy fees as revenue expenditure for setting up a restaurant business. The AO and CIT(A) treated these expenses as capital expenditure, allowing depreciation instead. The ITAT upheld this decision, noting that the payments were made for acquiring technical know-how before the business commenced, thus constituting capital expenditure. The ITAT referenced multiple judgments, including CIT v. Ciba India Ltd. and Alembic Chemical Works Co. Ltd. v. CIT, to support the treatment of such expenses as capital when they result in enduring benefits.

3. Prior period expenses:
The assessee claimed electricity expenses related to a previous year, arguing that the liability crystallized in the current year. The CIT(A) allowed the claim, and the ITAT upheld this decision, referencing the Gujarat High Court's ruling in Saurashtra Cement & Chemical Industries V. CIT, which stated that expenses crystallizing in a particular year should be allowed in that year, even if they relate to an earlier period.

4. Notional rental income on unsold flats:
The AO added notional rental income for unsold flats held as stock-in-trade. The CIT(A) deleted this addition, and the ITAT upheld this decision, referencing its earlier orders in the assessee's favor for A.Y. 1989-90 and 2004-05, which held that no notional income could be taxed on unsold flats.

5. Charging of interest under sections 234B and 244A:
The issue of charging interest under section 234B and withdrawal of interest under section 244A was deemed consequential. The ITAT directed the AO to recalculate the interest while giving effect to the appellate order.

6. Withdrawal of interest under section 244A:
The ITAT admitted the additional ground raised by the assessee regarding the allowability of expenditure on RHW Hotel Management Services Ltd. in A.Y. 2001-02 if not allowed in A.Y. 2002-03. The ITAT directed this issue to be considered along with the appeal for A.Y. 2002-03.

7. Additional ground of expenditure on RHW Hotel Management Services Ltd.:
The assessee sought to claim consultancy fees paid to RHW Hotel Management Services Ltd. in A.Y. 2001-02. The ITAT admitted this additional ground for consideration, noting that the expenditure should be allowed in the year it accrued. The ITAT referenced the Supreme Court's decision in National Thermal Power Company Ltd. Vs. CIT, which allows raising new grounds if they pertain to the same facts and do not require fresh investigation.

Separate Judgments Delivered:
There were no separate judgments delivered by different judges in this case. The order was consolidated and delivered collectively by the bench.