2017 (1) TMI 733 - AT - Income Tax

Revision u/s 263 - disallowance of depreciation - addition u/s 40(a)(ia) - Held that - There was no lack of enquiry on part of the AO and he had taken an informed decision. Therefore, it cannot be said that no proper enquiry was made. We find that the issue of disallowance of depreciation was discussed and deliberated upon by the Tribunal in assessee s own case for the year under consideration. Therefore, the consequential disallowance with respect to forex loss capitalised cannot be upheld. As per the settled principle of taxation once forex loss being capitalised , then no disallowance u/s. 40(a) (ia) can be made. In the case under consideration the AO had taken one of the possible views and the view taken by him is not against the provisions of law. Therefore, his order would not fall under the category of an erroneous order. As far as contingent sales tax deposit are concerned, it is found that the AO had passed a rectification order and taxed the disputed amount. By that time the order of CIT was passed. Thus there was no justification for the CIT to direct the AO to initiate penalty proceedings. It is found that the CIT had further directed the AO to make further verification of consumption of containers. We find that assessee had filed all necessary details before the AO during assessment proceedings and he had passed the order after considering the available material. Thus we are of the opinion that, the order passed by the AO was neither erroneous nor prejudicial to the interest of revenue. Thus we hold that the CIT was not justified in invoking the provisions of section 263 of the Act. - Decided in favour of the assessee.

Summary

Issues:
1. Disallowance of depreciation on payment made to AE for acquiring intellectual property and trade mark.
2. Treatment of sales tax collected from customers as contingency deposits.
3. Discrepancy in the amount shown against the consumption of containers in the books of accounts.
4. Challenge to the order passed by AO under section 263 of the Act.

Disallowance of Depreciation on Payment to AE:
The CIT found that the AO disallowed a sum under section 40(a)(i) of the Act related to depreciation claimed on payment made to the AE for acquiring intellectual property and trade mark. The CIT observed that the AO did not consider the foreign exchange loss pertaining to the acquisition of the trade mark and licenses. The CIT directed the AO to capitalize the foreign exchange loss and disallow the depreciation claimed by the assessee. However, the Tribunal held that once the forex loss is capitalized, no disallowance can be made under section 40(a)(ia). The Tribunal found that the AO had taken a possible view and his order was not erroneous.

Treatment of Sales Tax as Contingency Deposits:
The CIT noted that the assessee had collected sales tax from customers but treated it as contingency deposits without either paying it to the government or refunding it to customers. The CIT directed the AO to pass a rectification order and consider the disputed amount for computing the income of the assessee. The AR argued that the amount had already been offered to tax voluntarily, and there was no need for further addition. The Tribunal found that the AO had passed a rectification order and taxed the disputed amount, hence, there was no justification for the CIT's direction.

Discrepancy in Consumption of Containers:
Regarding the discrepancy in the consumption of containers shown in the books of accounts, the CIT directed the AO to verify the claim made by the assessee. The AR argued that the AO had considered the issue properly, and the order was not erroneous. The Tribunal found that the assessee had explained the discrepancy by following an accounting policy and treating part of the consumption as capital expenditure. The Tribunal held that the order passed by the AO was neither erroneous nor prejudicial to the interest of revenue.

Challenge to Order under Section 263:
The AR contended that the order passed by the AO was not erroneous or prejudicial to the revenue's interest. The Tribunal noted that the AO had made proper inquiries and considered the submissions of the assessee before passing the order. The Tribunal found that there was no lack of enquiry by the AO and that the order was informed and based on proper consideration. The Tribunal held that the CIT was not justified in invoking the provisions of section 263 of the Act. The appeal filed by the assessee was allowed.

In conclusion, the Tribunal held that the AO's order was not erroneous or prejudicial to the revenue's interest in the issues related to disallowance of depreciation, treatment of sales tax, and discrepancy in consumption of containers. The Tribunal found that the CIT's direction under section 263 was not justified, and the appeal filed by the assessee was allowed.