2010 (1) TMI 85 - HC - Income Tax

Whether on the facts and in the circumstances of the case the Appellate Tribunal was right in law in holding that the expenses incurred to get technical know-how is fully allowable under section 37 of the Income-tax Act 1961? - In the present case absolutely there is no details regarding the technical know-how payment and also there is no discussion by any of the authorities below that how the technical know-how is the revenue expenditure. There is complete lack of details in respect of agreement entered into between the assessee and the foreign collaborator and the Revenue has not enclosed the copy of the said agreement. In view of the absence of detail and discussion in the order it is difficult for this court to determine whether the expenditure incurred towards technical know-how is the revenue or capital expenditure - The authorities below have not given any details regarding the technical know-how payment. In these circumstances the order passed by the Tribunal is set aside and the matter is remitted back to the Income-tax Appellate Tribunal

Summary

Issues:
Allowability of expenses for technical know-how under section 37 of the Income-tax Act, 1961.

Analysis:
The case involved an appeal by the Revenue against the order of the Income-tax Appellate Tribunal regarding the allowability of expenses incurred for technical know-how under section 37 of the Income-tax Act, 1961. The assessee, a company engaged in manufacturing textile machinery accessories, filed its return of income for the relevant assessment year, declaring income. The Assessing Officer disallowed a portion of the claimed expenses towards technical know-how, allowing only 1/6th of the amount under section 35AB of the Act. The Commissioner of Income-tax (Appeals) upheld the assessment, but the Tribunal allowed the entire amount claimed by the assessee, leading to the Revenue's appeal.

The Revenue contended that the Tribunal erred in allowing the technical know-how expenditure as revenue expenditure under section 37, arguing that section 35AB was applicable in this case. The assessee argued that if the expenditure is revenue in nature, it should be allowed under section 37. The Tribunal's decision was based on various judgments, but the Supreme Court's interpretation in a related case highlighted the importance of determining whether the expenditure is revenue or capital in nature before applying section 35AB.

The High Court observed a lack of details regarding the technical know-how payment and the absence of discussion on how it constituted revenue expenditure. Due to this lack of information, the Court set aside the Tribunal's order and remitted the matter back to the Income-tax Appellate Tribunal for a fresh decision, emphasizing the need for a detailed examination of the nature of the expenditure and the agreement between the parties. The Court directed the Tribunal to decide the matter afresh in accordance with the law and the judgments cited, after providing an opportunity to the assessee.

In conclusion, the High Court allowed the tax case appeal, remitting the matter to the Income-tax Appellate Tribunal for a fresh decision on the allowability of expenses for technical know-how under section 37 of the Income-tax Act, 1961, emphasizing the importance of determining the nature of the expenditure and considering the relevant legal interpretations.