2016 (2) TMI 664 - AT - Income Tax

Allowance of business expenditure - incorporation of business - Held that - CIT (A) has rightly taken into consideration all the aspects. It is clear that the business of the assessee was set up since incorporation as it was having Carrefour Franchise Right and the expenses claimed by it for carrying out search for potential franchisees are expenses incurred post set up of business and are allowable as business expenditure. The AO erred in understanding the facts of the assessee s case by saying that the assessee is a trader, despite the fact that all the evidence were placed on record which proved that the assessee was into the business of leasing/sub leasing the franchise rights. Thus CIT(A) properly allowed the business expenditure - Decided in favour of assessee

Summary

Issues:
- Disallowance of business expenditure claimed by the assessee.
- Determination of whether the business was set up during the relevant assessment year.

Analysis:
- The Revenue filed an appeal against the order of the Ld. CIT(A) deleting an addition made on account of business expenditure amounting to Rs. 5,24,17,631. The Ld. CIT(A) concluded that the business of the assessee was set up since incorporation, based on the activities undertaken by the company. The assessee company was incorporated to establish, develop, and subfranchise rights from international/domestic brands. The Revenue contended that the business was not set up during the relevant assessment year, leading to the disallowance of the claimed business loss.

- The A.O observed that the assessee claimed expenses and business loss, but the auditor's report indicated that the company had not commenced any trading activities. The assessee explained that it had acquired office premises, opened a bank account, and incurred various business expenses, indicating the setup of business operations. The CIT(A) analyzed the facts and legal precedents, including the Delhi High Court's decision in CIT vs. ESPN Software India, to determine that the appellant was in a position to commence its business activities from the date of incorporation. The CIT(A) concluded that the business was set up since incorporation, allowing the claimed business expenditure.

- The Appellate Tribunal upheld the CIT(A)'s decision, emphasizing that the business was set up since incorporation as evidenced by the activities undertaken by the assessee. The Tribunal noted that the expenses claimed for searching potential franchisees were post business setup and thus allowable as business expenditure. The Tribunal also referred to a similar case involving the assessee's group company, where relief was granted by the Delhi High Court. The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decision to allow the business expenditure claimed by the assessee for the relevant assessment year.

This detailed analysis of the judgment highlights the key issues, arguments presented, factual background, legal interpretations, and the final decision rendered by the Appellate Tribunal.