2016 (2) TMI 187 - AT - Income Tax

Deduction u/s. 35D(2)(c)(iv) - CIT(a) allowed the claim - Held that - It is a well settled law that the expenditure incurred on issue of fresh share and expansion of capital base is capital in nature. Thus, in view of the law laid down in the case of Brooke Bond India Ltd. Vs. Commissioner of Income Tax reported as 1997 (2) TMI 11 - SUPREME Court we are of the view that the Commissioner of Income Tax (Appeals) has erred in allowing deduction claimed by the assessee on expenditure for increasing the authorized share capital of the assessee. The findings of the Commissioner of Income Tax (Appeals) on this issue are reverse and the appeal of the Revenue is allowed. Depreciation claimed on payment of non-compete fees - Held that - Non-compete payment is capital in nature and falls in the category of an intangible asset. Thus, non-compete payment is eligible for depreciation u/s. 32(1)(ii) of the Act. Disallowance of depreciation claimed on goodwill u/s. 32(1)(ii) - Held that - Following the decision rendered in the case of Commissioner of Income Tax Vs. Smifs Securities Ltd. (2012 (8) TMI 713 - SUPREME COURT ), the Hon ble Bombay High Court in the case of Commissioner of Income Tax Vs. Birla Global Asset Finance Co. Ltd. (2012 (8) TMI 773 - BOMBAY HIGH COURT ) held that depreciation in respect of intangible assets constituting goodwill is allowable.

Issues Involved:
1. Deduction under Section 35D(2)(c)(iv) for ROC fees for increasing authorized share capital.
2. Depreciation on non-compete fees under Section 32(1)(ii).
3. Depreciation on goodwill under Section 32(1)(ii).

Issue-wise Detailed Analysis:

1. Deduction under Section 35D(2)(c)(iv) for ROC fees for increasing authorized share capital:
The Revenue challenged the Commissioner of Income Tax (Appeals) decision allowing the deduction of Rs. 6,03,900/- under Section 35D(2)(c)(iv). The Revenue argued that the expenditure incurred for issuing equity shares to the holding company does not qualify for deduction as it is not related to public subscription of shares. The Tribunal referenced the Supreme Court's decision in Punjab State Industrial Development Corporation Ltd. Vs. Commissioner of Income Tax, which held that fees paid to the Registrar for expanding the capital base is capital expenditure. The Tribunal concluded that the expenditure for increasing authorized share capital is capital in nature and reversed the Commissioner of Income Tax (Appeals) decision, allowing the Revenue's appeal.

2. Depreciation on non-compete fees under Section 32(1)(ii):
The assessee appealed against the disallowance of depreciation on non-compete fees. The assessee argued that non-compete fees paid to M/s. ICI India Ltd. are capital in nature and should be eligible for depreciation under Section 32(1)(ii). The Tribunal cited the Karnataka High Court's decision in Commissioner of Income Tax Vs. Ingersoll Rand International Ind. Ltd., which held that non-compete fees confer a commercial right similar to know-how, patents, and trademarks, and thus qualify as an intangible asset eligible for depreciation. The Tribunal allowed the assessee's claim for depreciation on non-compete fees.

3. Depreciation on goodwill under Section 32(1)(ii):
The assessee also appealed against the disallowance of depreciation on goodwill. The Tribunal referenced the Supreme Court's decision in Commissioner of Income Tax Vs. Smifs Securities Ltd., which affirmed that goodwill qualifies as an intangible asset under Section 32(1)(ii) and is eligible for depreciation. The Tribunal also noted the Bombay High Court's decisions in Commissioner of Income Tax Vs. Birla Global Asset Finance Co. Ltd. and Toyo Engineering India Limited Vs. The Dy. Commissioner of Income Tax, which supported the claim for depreciation on goodwill. Consequently, the Tribunal allowed the assessee's claim for depreciation on goodwill.

Conclusion:
The Tribunal allowed the Revenue's appeal regarding the deduction under Section 35D(2)(c)(iv) and allowed the assessee's appeal for depreciation on non-compete fees and goodwill under Section 32(1)(ii). The judgment underscores the application of established legal principles regarding capital expenditure and depreciation on intangible assets.

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