2012 (6) TMI 443 - AT - Income Tax

Capital or Revenue - Treatment of books as plant entitled to depreciation under section 32(1) of the Act, i.e., in contradistinction to being a revenue expenditure - assessee is a partnership firm engaged in running coaching classes for entrance examinations Held that - where the article being used is the same (books), and the purpose for which it is used also the same, i.e., for imbibing knowledge and understanding the subject, as well as teaching it, capital expenditure would not become revenue, depending upon whether the income is considered as arising from exercise of profession or undertaking a business; the purpose of expenditure being the same, as also its contribution to the earning of the income or the income generating process. books, if not used in carrying on a profession (or a specified business), would carry the general depreciation rate of 25%, and not operate to alter the character of the expenditure to a revenue expenditure Disallowance under section 40A(3) of the Act - AO found the assessee to have made cash payments in excess of Rs. 20,000/- in respect of several purchases for awards, the aggregate expenditure under which head stood claimed at Rs. 14.19 lakhs Held that - it does not take much strain to infer that the books of account stand manipulated to reflect the impugned payments in installments of Rs. 20,000/- in an orchestrated manner to apparently accord with the provision of law, so as to circumvent its rigour and effect, i.e., as contended by the Revenue, so that its findings cannot be faulted with. In the case of McDowell Co. Ltd. (1985 - TMI - 40038 - SUPREME Court - VAT and Sales Tax), it stands held that there was as much moral sanction behind the taxation laws as is behind any other welfare legislation, and that it stood on no less a moral plane than honest payment of tax. That, the proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provision should be construed literally or liberally nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax and whether the transaction is such that the judicial process may accord its approval to it. It is up to the court to take stock to determine the nature of the legal device to avoid the tax and expose the same for what it really is and to refuse to give judicial benediction to it

Summary

Issues Involved:
1. Treatment of 'books' as 'plant' or revenue expenditure.
2. Disallowance of unverifiable expenses.
3. Disallowance under section 40A(3) of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Treatment of 'books' as 'plant' or revenue expenditure:
The primary contention was whether the books purchased by the assessee, a partnership firm engaged in coaching students for professional entrance examinations, should be treated as capital expenditure (plant) entitled to depreciation or as revenue expenditure. The Revenue treated the books as 'plant' under Entry III(9)(i)(b) of Appendix-I to Income Tax Rules, 1962, allowing depreciation at 60%. The assessee argued that the books had no enduring value as they needed to be purchased annually and were not returned by students. The AO and CIT(A) concluded that the books did not become obsolete annually and had enduring value, thus justifying their treatment as 'plant'. The Tribunal upheld this view, emphasizing that books used in a profession are considered 'plant' and eligible for depreciation at the prescribed rate of 60%, noting that the books formed part of the profit-making apparatus of the assessee's enterprise.

2. Disallowance of unverifiable expenses:
The AO disallowed expenses claimed by the assessee on books and awards due to a lack of supporting vouchers, especially since the expenses were incurred in cash. The CIT(A) allowed the claim for awards, noting practical difficulties in obtaining vouchers for nominal value items, but confirmed the disallowance for books. The Tribunal upheld the disallowance for books, noting the absence of vouchers and the inability to reconcile the expenditure with physical stock. The Tribunal restored the matter of awards to the CIT(A) for a speaking order after allowing a reasonable opportunity of hearing to the assessee, emphasizing the need for substantiation of primary facts.

3. Disallowance under section 40A(3) of the Income-tax Act, 1961:
The AO found that the assessee made cash payments exceeding Rs. 20,000/- for awards by splitting single transactions into multiple bills to avoid the provisions of section 40A(3). The CIT(A) confirmed this view, noting that these were essentially single transactions made to appear as multiple transactions. The Tribunal upheld the disallowance, agreeing with the Revenue's factual findings that the transactions were manipulated to circumvent the law. The Tribunal emphasized that the substance of the transactions should be considered, not their form, and noted similar findings in past cases.

Conclusion:
The Tribunal dismissed the assessee's appeal and partly allowed the Revenue's appeal. The books were rightly treated as 'plant' eligible for depreciation at 60%. The disallowance of unverifiable expenses on books was upheld, while the matter of awards was remanded for further examination. The disallowance under section 40A(3) was confirmed, emphasizing the need to view transactions in their substance.