2018 (6) TMI 102 - HC - Income Tax

Disallowance of payment of commission - Held that - Md. Ali Samarie of Baghdad was an agent and rendered services to the assessee and thus no question of law is involved. Expenses allowed. Whether the expenses towards drawings/ designs software consultancy charges are revenue or capital in nature? - Held that - The consultancy charges were on account of drawings and designs prepared by a particular agency - the drawings and designs could not have been treated as a capital asset and subjected to depreciation. Whether tender deposits made for filing tenders are allowed as deduction u/s 37? - Held that - As per the discussion in the order it is found as expenditure. Since the questions raised are not of such character that require any consideration - thus appeal is dismissed.

Summary

Issues Involved:
1. Payment of commission to an Iraqi agent on the sale of fork lift trucks and spares.
2. Treatment of drawings/designs software consultancy charges as revenue expenditure.
3. Deduction of write-off of earnest money and tender deposits under the Income-tax Act.

Analysis:

Issue 1: Payment of Commission to Iraqi Agent
The first issue revolves around the payment of commission to an Iraqi agent for the sale of fork lift trucks and spares. The department questioned the authorization of the payment as the agent's name appeared in the Volker Commission Report and the payment was not authorized by the U.N. However, the Tribunal found that the agent was indeed providing services to the assessee, making it a factual matter rather than a legal one. Therefore, the Court dismissed this issue as it did not involve any question of law.

Issue 2: Treatment of Consultancy Charges as Revenue Expenditure
The second issue concerns the treatment of drawings/designs software consultancy charges as revenue expenditure instead of capital expense. The Court highlighted that while computer software is considered a capital asset eligible for depreciation, consultancy charges related to drawings and designs prepared by a specific agency should not be treated as a capital asset subject to depreciation. The Court deemed this question unworthy of consideration as the consultancy charges were not related to a capital asset.

Issue 3: Deduction of Write-off of Earnest Money and Tender Deposits
The third issue involves the deduction of write-off of earnest money and tender deposits under the Income-tax Act. The Court noted that the order impugned found the tender deposits as a valid expenditure, contrary to the department's contention under section 36(2) of the Income-tax Act. The Court observed that the department might have included this question without intending to press it earnestly. As a result, the Court dismissed the appeal related to this issue as well.

In conclusion, the Court dismissed both appeals, ITA No. 504 of 2007 and ITAT No. 208 of 2016, as the questions raised did not merit consideration. The connected stay petition was also dismissed, and no costs were awarded. The judgment provides a detailed analysis of each issue raised by the department, emphasizing the factual nature of certain matters and the inapplicability of legal questions in those instances.