2013 (11) TMI 1233 - AT - Income Tax

Conversion of shares from stock-in-trade to Investments - Business loss or speculation loss - revenue contended that conversion of shares having been made to avoid application of Explanation to section 73 - Held that - The bonafides of the assessee are demonstrated by the fact that only 1/3rd of the shares converted into investments only part of the shares so converted were sold during the previous year and even in respect of shares held as stock in trade, there was a loss on sale of such shares during the relevant previous year also. At the time of conversion of shares, the assessee could not have known that the prices would fall subsequently. - order of the Ld. CIT(A) accepting the conversion of the stock in trade into investment is upheld - Decided against the revenue. Set off of losses - sale of shares after conversion - held that - Income of the assessee from capital gains and house property during the relevant previous year is more than the business income and therefore, the assessee s case fall within the exclusion contained in Explanation to section 73 of the Act. In view of the aforesaid, the loss arising on the sale of shares held as stock in trade has rightly been allowed by the ld. CIT(A) - Decided against the revenue. The order of the Ld. CIT(A) deleting the disallowance of expenditure relating to expansion of healthcare division is upheld. Payment of Non-Compete Fee - held that - the assessee s business interest would have suffered if the ex-employee, who was in a senior position and was well conversant with and in fact instrumental in setting up the above business initially, would have come in competition with the joint venture companies, in which the assessee had substantial interest. The assessee may also have been liable to joint venture companies. Thus, the non-compete fee was paid on account of commercial expediency and was rightly allowed revenue deduction by the A.O - Decided against the revenue. Depreciation @ 60% on medical equipment as computers - Held that - computer controlled medical equipment can not be equated with computers - normal depreciation to be allowed - Decided in favor of revenue. Depreciation @ 25% on building used as Nursing Home treating the same as plant and machinery - Held that - the claim of the assessee is fully supported by the decision of the Hon ble Supreme Court in the case of Dr. B. Venkata Rao (1999 (2) TMI 11 - SUPREME Court). Disallowance u/s 14A - Held that - it would be appreciated that the Assessee had substantial surplus interests free funds, which were sufficient to cover additional investments in shares made during the year and, therefore, there was no nexus of interest paid on borrowed funds with the said investments in the Assessment Year 2001-02. - there was no proximate nexus of borrowed funds with investment in shares, warranting disallowance under Section 14A. - Decided against the revenue. Disallowance u/s 14A read with section 115JB - held that - the amount of disallowance of other expenditure i.e. other than interest expenditure computed u/s 14A can be adopted for the purposes of addition to book profit u/s 115JB of the Act - decided partly in favor of assessee.

Issues Involved:
1. Conversion of Shares from Stock-in-Trade to Investments.
2. Allowability of Pre-operative Expenses as Revenue Expenses.
3. Allowability of Non-Compete Fee as Revenue Expenditure.
4. Depreciation on Medical Equipment and Nursing Home Building.
5. Disallowance under Section 14A of the Income Tax Act.
6. Treatment of Loss on Sale of Shares.
7. Taxability of Non-Compete Fee as Capital Gains.
8. Legal and Professional Expenses.

Detailed Analysis:

1. Conversion of Shares from Stock-in-Trade to Investments:
The assessee converted shares from stock-in-trade to investments and claimed a loss on conversion as a business deduction. The AO disallowed the loss, treating it as speculative under Explanation to Section 73. The CIT(A) upheld the conversion and allowed the loss as capital loss. The Tribunal upheld the CIT(A)'s decision, stating the conversion was genuine and not a device to evade tax.

2. Allowability of Pre-operative Expenses as Revenue Expenses:
The assessee claimed pre-operative expenses for the healthcare division as revenue expenses. The AO disallowed these, treating them as capital expenditure. The CIT(A) allowed the expenses, considering them as part of the expansion of existing business. The Tribunal upheld the CIT(A)'s decision, citing previous years' decisions and relevant case laws that supported the treatment of such expenses as revenue in nature.

3. Allowability of Non-Compete Fee as Revenue Expenditure:
The assessee paid non-compete fees to former employees and claimed it as a revenue expense. The AO disallowed the expense, treating it as capital expenditure. The CIT(A) allowed the expense, and the Tribunal upheld this, referencing past decisions in the assessee's favor and relevant case laws that treated non-compete fees as revenue expenditure when paid for protecting business interests.

4. Depreciation on Medical Equipment and Nursing Home Building:
The assessee claimed higher depreciation on medical equipment and nursing home building, treating them as computers and plant, respectively. The AO allowed depreciation at lower rates. The CIT(A) allowed higher depreciation, but the Tribunal reversed this for medical equipment, stating they cannot be considered as computers. However, it upheld higher depreciation for the nursing home building, treating it as a plant based on its specialized use for medical services.

5. Disallowance under Section 14A of the Income Tax Act:
The AO made an ad-hoc disallowance under Section 14A for expenses related to exempt income. The CIT(A) reduced the disallowance but still made it on an ad-hoc basis. The Tribunal found that no disallowance can be made without establishing a proximate nexus between the expenditure and the exempt income. It directed the deletion of disallowance related to interest expenditure and restricted disallowance of other expenses to a reasonable amount based on the proportion of the treasury department's expenses.

6. Treatment of Loss on Sale of Shares:
The AO treated the loss on the sale of shares as speculative. The CIT(A) and the Tribunal held that the loss on shares held as investments cannot be treated as speculative under Explanation to Section 73. The Tribunal upheld the CIT(A)'s decision, considering the nature of the shares and the overall income composition.

7. Taxability of Non-Compete Fee as Capital Gains:
The AO taxed the non-compete fee received by the assessee as capital gains. The CIT(A) held it as a capital receipt not liable to tax under the head 'capital gains.' The Tribunal upheld the CIT(A)'s decision, stating that non-compete fees received without transferring any business or right to carry on business cannot be taxed as capital gains. It referenced several case laws and the Supreme Court's decision in Guffic Chem (P) Ltd. vs. CIT.

8. Legal and Professional Expenses:
The AO disallowed legal and professional expenses paid to Max UK Limited, questioning the genuineness of the services rendered. The CIT(A) confirmed the disallowance. The Tribunal reversed this, stating that the payment was made pursuant to an agreement, and the services, though in the nature of liaison, were substantiated by the export sales achieved. The Tribunal directed the deletion of the disallowance.

Conclusion:
The Tribunal's decisions were largely in favor of the assessee, allowing various expenses as revenue in nature, restricting disallowance under Section 14A to reasonable amounts, and upholding the treatment of non-compete fees and conversion of shares. The Tribunal emphasized the need for a proximate nexus for disallowances and the genuineness of business decisions and expenses.

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