2015 (9) TMI 1164 - AT - Income Tax

Disallowance of share issue expenses to be amortized u/s.35D - CIT(A) deleted the addition - Held that - A similar issue came up for our consideration in assessee s own case for the assessment year 1999-2000 2011 (4) TMI 556 - MADRAS HIGH COURT wherein held there is no particulars with regard to the expenditure incurred by the assessee to claim deduction and further the expenditure incurred by the assessee is to be treated as a capital expenditure and not as a revenue expenditure. The decision of the Assessing Officer is also liable to be confirmed for another reason. In the appeals before the Commissioner of Income-tax and the Tribunal, both the authorities have not gone into the merits of the case or perused the materials to show the expenditure incurred by the assessee. On the other hand, both the authorities by simply stating that the claim of the assessee for the previous assessment years had been allowed, the claim of the assessee. - Decided in favour of assessee. Re computation of addition of depreciation on the basis of final opening WDV - Held that - The Commissioner of Income Tax (Appeals) gave direction to the Assessing Officer to recompute the depreciation on the basis of written down value after giving effect to the Tribunal order in assessee s own case for the assessment year 2002-03. Being so, we find no infirmity in the order of the Commissioner of Income Tax (Appeals). This ground of the Revenue is rejected.- Decided in favour of assessee. Eligibility for deduction u/s.80HHC on the issue of adjustment of negative profit and export incentives without application of eligibility conditions in the 3rd and 4th proviso to sec 80HHC (3) of the I.T. Act as allowed by CIT(A) - Held that - The Gujarat High Court in the case of Avani Exports & Others (2012 (7) TMI 190 - GUJARAT HIGH COURT ) quashed the amendment made by the Taxation Law and (Amendment) Act, 2005 with retrospective effect from 1st April, 1998 by way of adding second, third, fourth and fifth proviso to section 80HHC (3), only to the extent that the operation of the said section could be given effect from the date of amendment and not in respect of earlier assessment years of the assessees who export turnover is above ₹ 10 crores. Since, in the present case, the assessment year involved is 2003-04, being so, the issue of amendment has no consequence to the assessee s case. Accordingly, we uphold the finding of the Commissioner of Income Tax (Appeals) on this issue.- Decided in favour of assessee. Claim of deduction u/s.35(2AB) - CIT(a) held that the assessee is eligible for ₹ 70,65,156/- and not for weighted portion of the claim of ₹ 35,32,578/- u/s.35(2AB) - Held that - Respectfully, following the decision of the Tribunal in assessee s own case wherein held The sec 35(1) provides for deduction of expenditure other than the capital expenditure laid out or expended on scientific research related to the business. The nature of the expenses claimed are like civil work including refurnishing of floor, painting work, carpentry work, general housekeeping, gardening, false ceiling, cleaning door, repairing, salary paid to personal in R & D unit whose serves Associated Enterprise in administrative in nature, security guard expenses, interest expense etc. The expenses are essentially incurred for repair and maintenance of existing R&D facility and for general upkeeping of the R &D unit which was subject to inspection by various authorities like US FDA etc. and not for construction of new building or extension of the existing building. Even otherwise, these expenses are allowable u/s.37 of the I.T. Act, 1961, thus this ground of the Revenue is dismissed - Decided in favour of assessee.

Issues Involved:
1. Disallowance of share issue expenses under Section 35D.
2. Recalculation of depreciation based on final opening WDV.
3. Deduction under Section 80HHC and adjustment of negative profit.
4. Inclusion of certain receipts for the purpose of computation of book profit under Sections 115JA and 115JB.
5. Deduction under Section 35(2AB) for scientific research expenses.

Detailed Analysis:

1. Disallowance of Share Issue Expenses under Section 35D:
The first issue concerns the Commissioner of Income Tax (Appeals) directing the Assessing Officer to delete the disallowance of share issue expenses amounting to Rs. 4,55,189 to be amortized under Section 35D of the Income Tax Act. The Tribunal referenced a similar issue in the assessee's own case for the assessment year 1999-2000, where the jurisdictional High Court held that the expenditure incurred by the assessee is to be treated as a capital expenditure and not as a revenue expenditure. The Tribunal, following the High Court's decision, allowed this ground of the Revenue.

2. Recalculation of Depreciation Based on Final Opening WDV:
The second issue relates to the Commissioner of Income Tax (Appeals) directing the Assessing Officer to recompute the addition of depreciation of Rs. 1,74,55,191 based on the final opening Written Down Value (WDV). The Tribunal found no infirmity in the order of the Commissioner of Income Tax (Appeals) as it was consistent with the Tribunal's decision in the assessee's own case for the assessment year 2002-03. Hence, this ground of the Revenue was rejected.

3. Deduction under Section 80HHC and Adjustment of Negative Profit:
The third issue involves the Commissioner of Income Tax (Appeals) allowing the deduction under Section 80HHC on the issue of adjustment of negative profit and the consideration of export incentives. The Assessing Officer had denied the deduction on the ground that the computation of profit claimed by the assessee under Section 80HHC resulted in a negative figure. The Commissioner of Income Tax (Appeals) relied on the Supreme Court's decision in the case of IPCA Laboratory and the Gujarat High Court's decision in Avani Exports, which quashed the retrospective amendment affecting the assessee's eligibility for deduction. The Tribunal upheld the findings of the Commissioner of Income Tax (Appeals), rejecting this ground of the Revenue.

4. Inclusion of Certain Receipts for the Purpose of Computation of Book Profit under Sections 115JA and 115JB:
The fourth issue is regarding the inclusion of certain receipts for the purpose of computation of book profit under Sections 115JA and 115JB. The Commissioner of Income Tax (Appeals) had dismissed this ground as not pressed by the assessee. Therefore, the Tribunal also dismissed this ground as infructuous.

5. Deduction under Section 35(2AB) for Scientific Research Expenses:
The fifth issue pertains to the denial of the claim of deduction under Section 35(2AB) for scientific research expenses amounting to Rs. 11,70,43,544. The Assessing Officer had allowed a deduction of Rs. 10,64,45,810 based on the approval given by DSIR and disallowed the balance amount due to the lack of an official communication in Form No.3CL. The Commissioner of Income Tax (Appeals) observed that the nature of the expenses was not disputed and allowed the expenditure of Rs. 70,65,156 as revenue expenditure. The Tribunal, following its earlier decision in the assessee's own case, dismissed this ground of the Revenue.

Conclusion:
The appeal of the Revenue in ITA No. 799/Mds/2014 was partly allowed, with specific grounds being upheld or dismissed based on prior judgments and the merits of each issue. The order was pronounced on 19.6.2015.

← Previous Next →