2014 (8) TMI 1178 - HC - Income Tax

Disallowance of contribution to society - Addition u/s 40A - contribution was made by the assessee-company to a fund required to be set up by or under any other law for the time being in force - whether fund was constituted on bonafide for the welfare of its employees in smooth running of the business and hence the said contribution is to be allowed under section 37(1)? - HELD THAT - Tribunal in assessee s own case for assessment years 1990-92 and 1991-92 2002 (9) TMI 254 - ITAT CALCUTTA-A and 2013 (5) TMI 893 - ITAT KOLKATA . Since we find the issues are covered by the order of the Tribunal in the case of the assessee itself as agreed to and thus accepted by the department these questions are not substantial questions of law to be adjudicated in appeal. Payment of lump sum royalty - capital expenditure - HELD THAT - Assessee did not derive any enduring benefit for payment of lump sum royalty as the agreement was for non-transferable license to manufacture licensed products in India. appeal is admitted on question no. (iv) - Whether on the facts and in the circumstances of the case the Learned Tribunal erred in law and was not justified in law in giving direction to the Assessing Officer to allow depreciation on river bank embankment and that river bank embankment is to be treated as building ?

Issues:
1. Disallowance of contribution to society by the Assessing Officer.
2. Interpretation of section 40A(9) of the Income Tax Act regarding contribution to society.
3. Allowance of contribution to society under section 37(1) of the Income Tax Act.
4. Treatment of river bank embankment as building for depreciation.
5. Characterization of lump sum royalty payment as capital expenditure.
6. Consideration of material facts in appeal filed by the assessee.

Analysis:

1. The appeal was filed against the order passed by the Income Tax Appellate Tribunal regarding the disallowance made by the Assessing Officer on account of contribution to society. The Tribunal held that there was a valid agreement between the assessee company and its employees, making it a legal obligation for the company to contribute to the society. The Tribunal found that the contribution was enforceable in law, and therefore, the disallowance was deleted.

2. The Tribunal also considered whether the contribution to the society fell under section 40A(9) of the Income Tax Act. It was held that the contribution was made to a fund required to be set up by or under any other law in force, and thus, was not hit by section 40A(9). The Tribunal concluded that the contribution to the society was within the scope of the last part of the said section.

3. Regarding the allowance of contribution to the society under section 37(1) of the Income Tax Act, the Tribunal found that the fund was constituted in good faith for the welfare of the employees and the smooth running of the business. Therefore, the Tribunal held that the contribution should be allowed under section 37(1) of the Income Tax Act.

4. The Tribunal directed the Assessing Officer to allow depreciation on the river bank embankment and treat it as a building. This decision was based on the fact that the assessee did not derive any enduring benefit from the payment of lump sum royalty, as the agreement was for a non-transferable license to manufacture licensed products in India.

5. The Tribunal admitted the appeal on question number (iv) regarding the treatment of the river bank embankment as a building. The court ordered the preparation of paper books containing all relevant papers within eight weeks and waived the service of notice of appeal.

6. The Tribunal found that certain material facts were not considered by the Assessing Officer, leading to a perversity in the decision-making process. The Tribunal allowed the appeal filed by the assessee on this ground and directed a reevaluation of the facts presented in the case.

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