2012 (8) TMI 637 - AT - Income Tax

Whether the interest paid on sales tax under the amnesty scheme is an allowable deduction as business expenditure Held that - Interest paid on sales tax is not of penal in nature and is therefore allowable as business expenditure - interest paid on sales tax under the amnesty scheme is not for infringement of any law Allowance of sales tax in earlier years Held that - Nothing has been placed to prove that in earlier years the sales tax that remained unpaid was added to the income - aspect needs to be verified - issue remitted back to the file of A.O. for limited purpose to verify as to whether in the earlier years the unpaid amount of sales tax at the year-end was added to the income. If the same was added then the same should be allowed as deduction in the current assessment year u/s. 43B - claim of the assesse is accordingly allowed for statistical purposes Deemed dividend taxed u/s. 2(22)(a) Held that - Deemed dividend did not form the part of book profit computed as per Part-II addition III of Schedule VI to Companies Act, 1956 - addition for computing the book profits is uncalled for Provision for gratuity - book profit u/s. 115JA Held that - Provision for gratuity not as unascertained liability for the purpose of calculation of book profits u/s 115JB and therefore considering the same for computing the book profits is uncalled for addition deleted Computation of book profit u/s. 115JB alleged that assessee had not added provision for fixed assets held for disposal amounting to Rs.7,00,000/- for computing book profit u/s. 115JB Held that - There has been retrospective amendment to Sec. 115JB as a result of which provision for diminution in the value of assets needs to be added to arrive at the book profits - matter remanded to the file of the A.O. for limited purpose to verify as to whether the provision of Rs.7 lacs includes any provision made in the current assessment year. Addition is to be made of only the incremental amount of provision made during the year. Therefore, this ground is allowed for statistical purpose - appeal of the assessee is allowed

Summary

Issues Involved:
1. Deductibility of interest on sales tax.
2. Taxation of deemed dividend.
3. Addition of deemed dividend to book profits under section 115JA.
4. Addition of provision for gratuity to book profits under section 115JA.
5. Addition of provision for fixed assets held for disposal to book profits under section 115JB.

Issue-wise Detailed Analysis:

1. Deductibility of Interest on Sales Tax:
The assessee claimed a deduction of Rs.1,55,357/- paid as interest on sales tax under the Sales Tax Amnesty Scheme. The A.O. disallowed this claim, considering it penal in nature. However, the CIT(A) allowed the deduction for the sales tax amount but disallowed the interest and penalty. The Tribunal held that the interest on sales tax is not penal in nature and thus allowable as business expenditure. The Tribunal remitted the issue back to the A.O. to verify if the unpaid sales tax was added to the income in earlier years, which would allow the deduction under section 43B.

2. Taxation of Deemed Dividend:
The A.O. assessed a sum of Rs.38,20,047/- as deemed dividend, considering the annual rental value of occupancy rights in the property owned by a company in which the assessee held shares. The CIT(A) confirmed this addition. However, the Tribunal referred to its earlier decision for AY 2004-05, where it was held that deemed dividend under section 2(22)(a) requires distribution out of accumulated profits and release of assets, which was not the case here. Therefore, the addition of Rs.38,20,047/- as deemed dividend was deleted.

3. Addition of Deemed Dividend to Book Profits under Section 115JA:
The A.O. added the deemed dividend of Rs.38,20,047/- to the book profits for computation under section 115JA. The CIT(A) upheld this addition. The Tribunal, following its earlier decision, held that deemed dividend did not form part of book profit computed as per the Companies Act and thus should not be added. Consequently, the addition was deleted.

4. Addition of Provision for Gratuity to Book Profits under Section 115JA:
The A.O. added a provision for gratuity of Rs.12,03,707/- to book profits, considering it an unascertained liability. The CIT(A) confirmed this action. The Tribunal, referencing its prior decision, held that provision for gratuity based on actuarial valuation is an ascertained liability and should not be added to book profits. Therefore, the addition was deleted.

5. Addition of Provision for Fixed Assets Held for Disposal to Book Profits under Section 115JB:
The A.O. added a provision of Rs.7,00,000/- for fixed assets held for disposal to book profits, viewing it as an unascertained liability. The CIT(A) deleted this addition. The Tribunal noted the retrospective amendment to section 115JB requiring such provisions to be added to book profits. The matter was remitted to the A.O. to verify if the provision included any amount made in the current assessment year. Only the incremental amount of provision made during the year should be added.

Conclusion:
The appeal of the assessee was allowed, and the appeal of the Revenue was partly allowed for statistical purposes. The Tribunal provided specific directives for verification and recalculations to ensure compliance with the legal provisions and precedents.