2016 (1) TMI 775 - AT - Income Tax

Disallowance u/s 43B - Held that - Deduction on account of contribution to EPF though deposited late is allowable u/s 36(1)(va) 43B of the Act. Consequently we are of the considered view addition made by the A.O. and confirmed by Ld. CIT(A) is to be allowed as deduction. Loss of fixed asset - Held that - The assessee claimed loss of fixed asset but the same has been made as addition to his income on the ground that the same has not been added back to the income of the assessee in computation sheet. When the amount of 2810/- has not been added back to the income of the assessee in computation sheet the same has been rightly added to the income of the assessee and rightly confirmed by Ld. CIT(A).

Issues Involved:
1. Confirmation of total loss assessed by the AO.
2. Classification of technical services expenses as capital or revenue expenditure.
3. Classification of legal fees for increasing authorized capital and other expenses.
4. Disallowance of provision for payment of gratuity.
5. Disallowance of late deposit of EPF contributions.
6. Disallowance of loss on sale of fixed assets.
7. Initiation of penalty proceedings under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Confirmation of Total Loss Assessed by the AO:
The appellant contested the confirmation of the total loss at Rs. 6,08,24,758 as assessed by the AO, against the declared loss of Rs. 7,81,94,190. The Tribunal examined the facts and upheld the AO's assessment, confirming the total loss at Rs. 6,08,24,758.

2. Classification of Technical Services Expenses:
The appellant argued that the technical services received were imperative for establishing business operations in India and should not be treated as capital expenditure. The AO and CIT(A) classified the Rs. 1,42,04,926 paid towards technical fees as capital expenditure, citing that the expenditure was for acquiring rights to use technology for manufacturing, thus providing an enduring benefit. The Tribunal, however, referred to the judgment in Indo Rama Synthetics (I) Ltd. vs CIT, distinguishing between capital and revenue expenditure. It concluded that since the expenditure was for the expansion of the existing business, it should be treated as revenue expenditure.

3. Classification of Legal Fees for Increasing Authorized Capital and Other Expenses:
The appellant claimed Rs. 29,11,330 for legal fees, including Rs. 28,02,000 for increasing authorized capital and the balance for sales tax and excise registration. The AO treated this as capital expenditure. The Tribunal, citing Indo Rama Synthetics (I) Ltd., held that expenses for increasing authorized capital and registrations for the same business or its expansion should be treated as business expenditure. Thus, the addition of Rs. 28,02,000 was ordered to be deleted.

4. Disallowance of Provision for Payment of Gratuity:
The appellant claimed Rs. 1,15,368 as a provision for payment of gratuity. The AO disallowed this under section 40A(7) of the Act, as the amount was not paid. The Tribunal upheld this disallowance, confirming that provisions not actually paid are not deductible.

5. Disallowance of Late Deposit of EPF Contributions:
The appellant claimed Rs. 2,44,328 as a deduction for EPF contributions deposited late. The AO and CIT(A) disallowed this under section 2(24)(x) of the Act. However, the Tribunal referred to the judgment in CIT vs Aimil Ltd., which allows such deductions if payments are made before filing the return. Consequently, the Tribunal allowed the deduction of Rs. 2,44,328.

6. Disallowance of Loss on Sale of Fixed Assets:
The appellant claimed a loss of Rs. 2,810 on the sale of fixed assets. The AO added this to the income, stating it was not included in the computation sheet. The Tribunal upheld this addition, confirming that the amount was rightly added to the income.

7. Initiation of Penalty Proceedings under Section 271(1)(c):
The appellant contested the initiation of penalty proceedings under section 271(1)(c). The Tribunal did not provide a detailed analysis on this issue in the judgment, focusing instead on the substantive issues of expenditure classification and deductions.

Conclusion:
The Tribunal partly allowed the appeal, providing relief on the classification of technical services expenses and legal fees for increasing authorized capital, while upholding the disallowances related to gratuity provisions, late EPF contributions, and loss on sale of fixed assets. The initiation of penalty proceedings was not explicitly addressed in detail.

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