2012 (4) TMI 448 - HC - Income Tax

Disallowance of expenses for the period prior to date of Set up of business by AO Held that - It cannot be said that the business had commenced only from 1st June, 2001, when the assessee acquired the rights under the agreement dated 21st May, 2001 - Tribunal has rightly kept in mind the difference between setting up of business and commencement of business - the assessee is in a complete state of readiness to undertake its activity, it can be said that it has set up its business, the actual commencement of business may be at a later date in favour of assessee. Capitalization of expenses and consultancy paid to the architects by AO Tribunal treated expenditure incurred in respect of leasehold premises on account of electrical work, wooden partitions, laying down of cables, false flooring etc and consultancy to architect makes no addition of extension of the premises taken by the assessee on lease as nothing was added to the profit making apparatus hence no merit in the treating all such expenditure as capital in nature - Held that - Break up and particulars regarding the expenditure is not available and referred to and no information about the said expenditure was towards purchase and installation of air conditioners/air conditioning plant, furniture etc- Since the factual details have not been considered by the tribunal - set aside the findings recorded by the tribunal and pass an order of remand for fresh decision after ascertaining the factual aspects. Legal and professional charges treated as revenue in nature by ITAT - Held that - This expenditure was in connection with the transfer of assets and liabilities therefore, should be treated as a part of cost of acquisition of the business/asset - an order of remit with a direction to first examine and decide the factual aspects.

Summary

Issues:
1. Date of setting up the business of the respondent assessee.
2. Capitalization of expenses and consultancy fees.
3. Legal and professional charges.
4. Purchase of software.

Issue 1: Date of setting up the business:
The appeal involved the determination of the date on which the business of the respondent assessee was set up for Assessment Year 2002-03. The Assessing Officer disallowed expenses incurred prior to June 1, 2001, but the tribunal found that the business was set up on April 1, 2001, based on various activities undertaken by the assessee. The tribunal differentiated between setting up and commencement of business, concluding that the business was ready to commence on April 1, 2001, despite certain agreements being operational from a later date. The tribunal's factual findings were considered reasonable and fair, leading to the dismissal of the appeal on this issue.

Issue 2: Capitalization of expenses and consultancy fees:
The second issue revolved around the capitalization of expenses and consultancy fees incurred by the assessee. The Assessing Officer treated these expenditures as capital expenses, allowing depreciation accordingly. However, the tribunal disagreed, stating that the expenses were incurred for the optimum use of business premises and did not add to the profit-making apparatus. The tribunal held that such expenses should be treated as revenue expenditure, leading to the allowance of the appeal on this aspect.

Issue 3: Legal and professional charges:
Regarding the legal and professional charges incurred by the assessee, the tribunal found that these expenses were related to legal formalities for executing agreements with a foreign party. Citing a decision of the Bombay High Court, the tribunal determined that these charges were revenue in nature and should not be disallowed as capital expenditure. Consequently, the appeal was allowed on this issue.

Issue 4: Purchase of software:
The final issue concerned the purchase of software at the end of the accounting period. While the Assessing Officer questioned the usage of the software due to its timing of purchase, the tribunal accepted the assessee's explanation that the software could be easily installed. The tribunal considered this a factual finding not warranting interference on a substantial question of law, leading to the partial allowance of the appeal on this matter.

In conclusion, the High Court upheld the tribunal's decisions on the date of setting up the business, capitalization of expenses, and legal charges. However, it remanded the decision on the capitalization of expenses and directed further examination of factual aspects. The appeal was partly allowed and disposed of without costs.