2012 (11) TMI 61 - AT - Income Tax

Recurring royalty /fees - capital v/s revenue - Disallowance u/s 37(1) - CIT(A) allowed the claim - Held that - The issue is covered in favour of the appellant by the orders of ITAT, Ahmedabad in appellant s own case for A.Y. 2005-06 to 2007-08 relying on CIT V/s Ashoka Mills Ltd. 1995 (10) TMI 35 - GUJARAT HIGH COURT wherein held that the payment of royalty was clearly under the agreement between the assessee and other partly, since not merely the ownership of a trade mark but even the right to use the said trade mark could be parted with for a consideration - the two companies in question were distinct entities dealing at arm s length and it certainly could not be urged that the payment was made for any consideration other than business & held in favour of the assessee that the payment of royalty in question was a revenue expenditure - appeal decided in favour of assessee.

Summary

Issues:
Disallowance of expenditure under section 37(1) of the Income Tax Act.

Analysis:
The issue in this case revolves around the disallowance of a sum under section 37(1) of the Income Tax Act. The Assessing Officer (A.O.) disallowed an amount debited as recurring royalty/fees, questioning the nature of the expenditure and its treatment as capital expenditure. The A.O. argued that franchise fees should be considered as capital expenditure under section 32(1)(ii) of the Act, citing specific provisions that override general provisions. The A.O. highlighted that previous decisions relied upon by the assessee pertained to periods before 01/04/1998, and with the incorporation of "Franchise" as an intangible asset post this date, the expenditure should be treated differently. The A.O. also emphasized that if an expenditure falls under special provisions, it must be considered accordingly, referencing legal precedents to support this stance.

The assessee contended that franchise fees should be treated as revenue expenditure, citing previous decisions by the ITAT and emphasizing that the nature of the expenditure does not change based on payment mode. The assessee argued that franchise fees are directly linked to turnover and should not be considered capital expenditure. However, the A.O. rejected this argument, maintaining that franchise expenditure is capital in nature and disallowed the amount under section 37(1) of the Act. Consequently, the assessee was allowed depreciation on the disallowed amount as per section 32(1)(ii) of the Act.

On appeal, the CIT(A) ruled in favor of the assessee, citing previous decisions by the ITAT in the appellant's own case for other assessment years. The CIT(A) accepted the plea of the appellant, following the judgments of the ITAT, Ahmedabad, and directed the deletion of the addition made by the A.O. The CIT(A) allowed the claim of the appellant to treat the expenditure as revenue in nature, leading to the dismissal of the Revenue's appeal.

In conclusion, the appellate tribunal upheld the decision of the CIT(A) based on the precedent set in the appellant's previous cases and the consistency in treatment of similar issues. The judgment emphasized the importance of legal precedents and specific provisions of the Income Tax Act in determining the treatment of expenditures, ultimately resulting in the dismissal of the Revenue's appeal.