2019 (7) TMI 1496 - AT - Income Tax

Disallowance of employees contribution of PF and ESI u/s. 2(24)(x) r.w.s. 36(1)(va) - payment of the said contribution was made after due date as provided in respective statute - HELD THAT - In view of the decision of CIT vs. Gujarat State Road Transport Corporation 2014 (1) TMI 502 - GUJARAT HIGH COURT we do not find any merit in the grievance of the assessee on this score. Ground No. 1 (supra) for the assessee s appeal is dismissed. Disallowance of provision for maintenance and free service/warranty in computation of book profit u/s. 115JB - assessee contended that such provision cannot be stated to be an unascertained liability so as to add it back in terms of clause (c) to Explanation 1 to section 115JB - HELD THAT - We find ourselves in agreement with the aforesaid contention of the assessee that such liabilities cannot be regarded as contingent liability. What is certain is the incurring of liability notwithstanding estimation thereof with reasonable certainty. Although actual quantification may not be always be possible, the liability is in praesenti though it is likely to be discharged at a future date. Similar issue has come up in the case of DCIT vs. Inox Leisure Ltd. 2013 (2) TMI 353 - GUJARAT HIGH COURT where it was held that ascertained liabilities cannot be subjected to the adjustment under clause (c) to explanation 1 to section 115JB. Thus, we find merit in the grievance of the assessee on this score. Disallowance of depreciation towards goodwill - HELD THAT - The assessee has claimed certain costs towards goodwill being extra consideration paid towards acquisition of net value of assets of Alps Technologies Ltd. on slump sale basis with a view to acquire its business operations.There can be no quarrel that extra consideration paid for acquisition of assets and the business of a concern represents cost of goodwill. This being so, the assessee would be entitled in law for claim of depreciation thereon in view of the decision of DCIT vs. TGB Banquets Hotels Ltd. 2016 (7) TMI 174 - GUJARAT HIGH COURT and also case of Smiffs Securities Ltd. 2012 (8) TMI 713 - SUPREME COURT . Therefore, we find no infirmity in the conclusion drawn by the CIT(A) in favour of the assessee. Hence, we decline to interfere. Depreciation at the rate of 60% on software being customized license product - HELD THAT - The computer and computer software and licenses are not differentiated in the table of depreciation as provided under the Income Tax Act. Thus, CIT(A) in our view has rightly recorded the findings in favour of the assessee. We decline to interfere therewith. Ground No. 2 of Revenue s appeal is dismissed.

Summary

Issues:
1. Disallowance of employees' contribution of PF and ESI
2. Disallowance of provision for maintenance and free service/warranty
3. Disallowance of depreciation claimed on trademark
4. Depreciation rate on software being customized license product

Analysis:

1. Employees' Contribution Disallowance:
- The assessee appealed against the disallowance of employees' contribution of PF and ESI. The Tribunal dismissed this appeal citing a previous decision by the Gujarat High Court.

2. Provision for Maintenance Disallowance:
- The assessee contested the disallowance of provision for maintenance and free services/warranty while determining book profit under section 115JB. The Tribunal agreed with the assessee that such provisions are not contingent liabilities and allowed the appeal based on previous court decisions.

3. Depreciation on Trademark:
- The Revenue appealed against the disallowance of depreciation claimed on a trademark. The Tribunal upheld the CIT(A)'s decision in favor of the assessee, citing relevant court decisions supporting the claim for depreciation on goodwill acquired through a slump sale.

4. Depreciation Rate on Software:
- The Revenue challenged the depreciation rate on software being a customized license product. The CIT(A) allowed depreciation at a rate of 60% instead of 25%, based on interpretations of the Income Tax Act and previous rulings. The Tribunal upheld the CIT(A)'s decision, emphasizing that the Act does not differentiate between computer software and licenses in the depreciation table.

In conclusion, the Tribunal partially allowed the assessee's appeal regarding the provision for maintenance and dismissed the appeal on employees' contribution disallowance. Additionally, the Tribunal dismissed the Revenue's appeal on the depreciation of a trademark and the depreciation rate on software, upholding the CIT(A)'s decisions in both instances.