2014 (1) TMI 841 - AT - Income Tax

Disallowance of Interest under Explanation-8 of Section 43(1) of the Act - Purchase of brand name and trade marks Held that - In the order of CIT it is not clear as to whether interest had been paid till the date of acquisition of the asset or thereafter - Both the parties agreed that the issue may be restored to file of AO for fresh decision after necessary examination order of the CIT(A) Set aside and the matter remitted back to the AO for fresh consideration Decided in favour of Assessee. Book adjustments u/s 115JB - Addition of provision created for advertisement and sales promotion and distribution expenses Held that - Under the provisions of Explanation (c) of section 115JB(2), provision for meeting any liability, other than ascertained liabilities is required to be added to the book profit - The reason behind such provision is that while computing total income, only expenditure incurred towards ascertained liability whether by way of provision or otherwise is allowable as deduction thus provision has been made in section 115JB to add back any amount of provision created for liabilities other than ascertained liabilities - the assessee itself found the ascertained liability for the year at Rs.5.25 crores and added back the balance amount of Rs.7.19 crores, in the same year it clearly shows that the provision to that extent was not towards ascertained liabilities - The CIT therefore was correct in directing the Assessing Officer to add Rs.7.19 crores to the book profit under the provisions of Explanation (c) of section 115JB(2) Decided against Assessee.

Summary

Issues:
1. Disallowance of interest expenditure related to purchase of brand names and trade marks.
2. Addition of provision for advertisement, sales promotion, and distribution expenses while calculating book profit under section 115JB.

Issue 1: Disallowance of Interest Expenditure:
The Tribunal recalled its earlier order to adjudicate on the disallowance of interest expenditure amounting to Rs.23.39 lacs related to the purchase of brand names and trade marks. The CIT initiated proceedings under section 263, holding the interest paid for delay in payment of purchase consideration as capital in nature. The Tribunal set aside the CIT's order and restored the matter to the AO for fresh examination to determine if the interest was paid till the date of acquisition of the asset or thereafter, as per Explanation-8 to section 43(1).

Issue 2: Addition of Provision for Expenses:
The dispute centered on adding Rs.7.19 crores provision for advertisement, sales promotion, and distribution expenses to the book profit under section 115JB. The CIT directed the AO to include this amount as it was considered a provision for unascertained liabilities, not allowable under section 115JB. The Tribunal recalled its order to adjudicate on this ground. The AR argued based on previous cases, but the DR contended that the provision was for unascertained liability, supported by the fact that the assessee wrote back the provision amount. The Tribunal upheld the CIT's direction, emphasizing that only expenditure towards ascertained liability is deductible under section 115JB.

The AR's reliance on previous Tribunal decisions was deemed inapplicable as the issues differed. The Tribunal clarified that the CIT's power under section 263 includes directing the AO to make assessments in a particular manner, as justified by the circumstances. In this case, the CIT's direction to add the provision to the book profit was upheld as it was not for ascertained liabilities. Therefore, the Tribunal concluded that the CIT was justified in directing the AO to make the addition, and the appeal was partly allowed.

In conclusion, the Tribunal addressed the issues of interest disallowance and provision addition meticulously, upholding the CIT's direction in both instances. The judgment emphasized the distinction between ascertained and unascertained liabilities in determining the deductibility of expenses under section 115JB. The Tribunal's detailed analysis and interpretation of relevant legal provisions and precedents led to the partial allowance of the appeal.