2020 (12) TMI 520 - AT - Income Tax

Disallowance of lease rent - nature of expenditure - assessee was engaged in the business of manufacturing and sale of Katha and Cutch as taken factory on lease from Mehta Charitable Prajnalaya Trust - assessee treated entire lease rental per month as revenue expenditure whereas the Revenue treated part of the enhanced lease rental as capital expenditure - HELD THAT - As decided in own case 2005 (6) TMI 549 - ITAT DELHI direct the Assessing Officer to treat part of the lease rent fee for surrendering the right to purchase @15% of average purchases of khair wood. Both the parties have been unable to give annual rate prevailing in the market, however, on the facts and circumstances of the case and looking to the fact that assessee is paying percentage - wise more rent to the government undertaking on a similar lease of commercial property, therefore, we hold that 10% of annual escalation would be reasonable from Assessment Year 1992-93 onwards. The dispute in the year under consideration of whether the sum of ₹ 55,41, 611/-out of total lease expenditure of ₹ 1,14,86,544/- is capital expenditure or not is squarely covered by the above decision of the Tribunal. Thus, respectfully following the same, we direct the learned Assessing Officer to work out the net disallowable expenditure in view of the direction of the Tribunal (supra) in assessment year 1992-93 to 2010-11.

Issues Involved:
1. Disallowance of lease rent by the Assessing Officer.
2. Classification of lease rent as revenue or capital expenditure.
3. Attribution of lease rent towards revenue and capital expenditure.
4. Calculation of depreciation on capital expenditure.

Detailed Analysis:

1. Disallowance of Lease Rent by the Assessing Officer:
The primary issue in this case is the disallowance of lease rent amounting to ?55,41,611/- by the Assessing Officer (AO). The assessee had taken a factory on lease from Mehta Charitable Prajnalaya Trust (MCPT) and paid enhanced lease rentals, which included payments for surrendering business rights. The AO treated part of the enhanced lease rental as capital expenditure, leading to the disallowance.

2. Classification of Lease Rent as Revenue or Capital Expenditure:
The assessee treated the entire lease rental as revenue expenditure, while the Revenue treated part of it as capital expenditure. The Hon’ble Delhi High Court had earlier laid down specific tests to determine the classification:
- Enhancement attributable to surrendering the right to purchase khair wood is revenue expenditure.
- Enhancement attributable to improvement and modernization of plant and machinery is revenue expenditure.
- Enhancement due to normal market appreciation is revenue expenditure.
- Enhancement attributable to non-compete agreements is capital expenditure.

3. Attribution of Lease Rent Towards Revenue and Capital Expenditure:
The assessee attributed different percentages of the enhanced lease rentals towards revenue and capital expenditure based on the High Court's guidelines. However, the AO did not accept the assessee's computation and instead calculated a certain amount as non-compete fee constituting capital expenditure. The Tribunal reviewed the AO’s computation and the assessee’s claims, finding the AO’s application of a 10% rate for surrendering the right to purchase khair wood unreasonable. The Tribunal accepted the assessee's claim of a 15% rate, aligning with the gross profit rate of the Trust.

4. Calculation of Depreciation on Capital Expenditure:
The Tribunal also addressed the issue of depreciation on capital expenditure. The assessee argued that the non-compete fee should be treated as an intangible asset eligible for depreciation under Section 32(1)(ii) of the Income Tax Act. The Tribunal agreed, directing the AO to allow depreciation from 1st April 1998 and to examine whether the non-compete fee could be treated as revenue expenditure following the amendment effective from 1st April 2003.

Conclusion:
The Tribunal directed the AO to:
- Treat part of the lease rent fee for surrendering the right to purchase khair wood at 15% of the average purchase price.
- Allow normal escalation on fixed rent at 10% per year.
- Attribute rent for modernization and improvement of plant and machinery at 18%.
- Allow depreciation on the portion of the rent held as capital expenditure from 1st April 1998 and examine the treatment of non-compete fee as revenue expenditure post the 2003 amendment.

The appeal of the assessee was allowed for statistical purposes, and the AO was instructed to rework the disallowable expenditure following the Tribunal's directions.

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