2019 (7) TMI 543 - HC - Income Tax

Deduction u/s 80IA - income arising from installation, AMC charges, technical charges, consultation charges and licence fee - HELD THAT - Assessing Officer correctly after examining the facts of the case, found that the income earned from AMC (Annual Maintenance Charges of ATM), installation and technical charges, consultation charges and licence fee of software do not constitute income from the industrial undertaking which was established in Pondicherry, since this was not derived from the industrial undertaking, as the men, material and machinery of the Pondicherry industrial undertaking were not used to earn income and therefore, denied deduction under Section 80IA As contended that the assessee's business of production, sale, installation and maintenance of ATMs by providing necessary software is a very high security risk, as they dispense large amounts of cash and in view of special type of machine, provision of maintenance service is an integral part of manufacturing and selling activity, the above submissions made by Mr.M.P.Senthil Kumar were never pleaded either before the Assessing Officer, or before the CIT(A) or before the Tribunal either in the same tenor or in a different manner. Therefore, such a plea cannot be raised at this juncture - assessee has not made out any ground to interfere with the first issue as well. Alternate claim made by the assessee stating that the expenditure incurred in carrying out annual maintenance work should be excluded while computing profit under Section 80IA this issue was considered by the CIT(A) in paragraph 4.6 of the order dated 28.02.2005 and was rejected on the ground that there was no positive income from the Pondicherry unit. - Decided against assessee. Disallowance of brokerage/commission - no proof that assessee has derived business advantage by paying sales commission - HELD THAT - The assessee was dealing with the Bank of Punjab Limited and the business was continuous one. Therefore, the Tribunal opined that the assessee failed to establish that there was necessity to identify once again the Bank of Punjab Ltd., as its customer. Further, the Tribunal noted that there is nothing on record to show that the assessee has derived business advantage by paying sales commission. Every factual findings recorded by the Tribunal will clearly show that the assessee miserably failed to establish their claim regarding the disallowance of brokerage/commission - no substantial question of law arising for consideration on this aspect. Disallowance u/s 40A(2)(a) and 40A(2)(b) - software purchased from M/s.Diebold Inc., and M/s.Chip Trans - HELD THAT - The assessee sought to justify the gross difference in the amount paid in respect of software purchased from both the companies on the ground that M/s.Diebold Inc., was their associate concern, whereas, M/s.Chip Trans was a third party. This aspect of the matter was considered by the Assessing Officer, the CIT(A) as well as the Tribunal and factually, it was found that the stand taken by the assessee does not merit consideration We cannot be called upon to review and redo the factual exercise in an appeal filed under Section 260A of the Act. Therefore, no substantial question of law arises with regard to the disallowance made under Sections 40A(2)(a) and 40A(2)(b) in respect of purchase of software from M/s.Diebold Inc., and M/s.Chip Trans, and there is no ground made out by the assessee to interfere with the order of the Tribunal in this regard.

Summary

Issues:
1. Deduction under Section 80IA for various charges
2. Disallowance of expenses for purchase of software
3. Disallowance of brokerage/commission

Issue 1: Deduction under Section 80IA for various charges

The appellant claimed a deduction under Section 80IA of the Income-tax Act for income arising from installation, AMC charges, technical charges, consultation charges, and license fee. The Tribunal found that the income did not constitute income from the industrial undertaking established in Pondicherry and denied the deduction. The appellant failed to establish that the income was derived from the industrial undertaking, as the necessary resources were not used for earning the income. The argument that maintenance services were integral to the manufacturing and selling activity was not raised earlier and could not be raised at this stage. The alternate claim to exclude maintenance expenditure while computing profits under Section 80IA was also rejected. The Court upheld the Tribunal's decision, stating that the appellant did not provide grounds to interfere with the order.

Issue 2: Disallowance of expenses for purchase of software

The appellant faced disallowance under Sections 40A(2)(a) and 40A(2)(b) for software purchased from two companies. The appellant's justification for the price difference between the software from the two companies was not accepted by the Assessing Officer, CIT(A), and the Tribunal. The Tribunal found that the appellant failed to prove the necessity of the price difference and that the purchase price paid resulted in benefiting a specified person with substantial interest in other companies. The Court held that no substantial question of law arose regarding the disallowance of expenses for software purchases from the two companies and upheld the Tribunal's decision.

Issue 3: Disallowance of brokerage/commission

The Tribunal confirmed the disallowance of brokerage/commission paid by the appellant. The Tribunal's findings indicated that the appellant failed to establish the necessity of paying sales commission and deriving business advantage from it. The Court found no substantial question of law on this issue and upheld the Tribunal's decision to disallow the brokerage/commission amount.

In conclusion, the Court dismissed the appeal as the appellant did not present substantial questions of law to challenge the Tribunal's decision. The Court upheld the Tribunal's findings on all issues, emphasizing the appellant's failure to establish necessary grounds for their claims.