2011 (5) TMI 367 - AT - Income Tax

Appeals partly allowed for statistical purposes, issues remanded for fresh adjudication. Proper verification and legal precedent emphasized.

Deputy Commissioner of Income-tax 7(2) Versus Rediff. Com India (P.) Ltd.

The appeals were partly allowed for statistical purposes, with several issues remanded to the Assessing Officer or CIT(A) for fresh adjudication. The ... Software and product development expenses - capital or revenue expenditure - the issue has to go back to the file of the Assessing Officer for fresh adjudication in the light of the decision of Special Bench of ITAT in the case of Amway India Enterprises v. Dy. CIT (2008 -TMI - 64346 - ITAT DELHI-C).Non-compete fee -the Tribunal in assessee's own case in the preceding assessment year has restored the matter to the file of the CIT(A) for passing a speaking order. Since the CIT(A) has not given any finding on the claim of the assessee that non-compete fee paid by the assessee to M/s. Footforward Communications Pvt. Ltd. was a revenue expenditure and since during the impugned assessment year, the assessee has not at all claimed any expenditure in the P&L account, and, since the lower authorities have not decided the issue properly, therefore, the matter should go back to the Assessing Officer or CIT(A) as the Bench decides, for fresh adjudication -Admittedly, the assessee has not claimed any expenditure on account of non-compete fee during the year since amortisation of miscellaneous expenditure of Rs. 1,87,15,371 claimed in the P&L account has been disallowed in the computation of total income. Tax deducted at source - Under section 40(a)(i)- Since the assessee has not filed the requisite details before the Assessing Officer, the Assessing Officer disallowed the amount which has been upheld by the CIT(A). She submitted that the additional evidences should not be admitted at this stage since the assessee has not given any valid justification as to why those details could not be filed before the Assessing Officer.Prior Period Expenses - According to the AO, the legal position is that income pertaining to earlier years is taxable on receipt basis under section 41 of the Act but expenses pertaining to earlier year are not allowable as they are not pertaining to the year under consideration. - Held that:- Undoubtedly, the assessee in the instant case has failed to justify the allowability of claim of prior period expenses of Rs. 64,60,337 during the year before the Assessing Officer and CIT(A) by showing that the expenditure has crystallised during the year. - Decided against the assessee. Issues Involved:1. Treatment of software and product development expenses.2. Addition of non-compete fee.3. Disallowance under section 40(a)(i) for non-deduction of tax.4. Addition of prior period expenses.5. Verification of software usage expenses and fixed assets.6. Allowance of bad debts.7. Depreciation on software acquired.Detailed Analysis:1. Treatment of Software and Product Development Expenses:The assessee challenged the CIT(A)'s order treating software and product development expenses of Rs. 4,24,37,733 as capital in nature instead of revenue expenditure. The alternate contention was for depreciation to be allowed at 60% if treated as capital, against 25% as held by the Assessing Officer. Both parties agreed to remand the issue back to the Assessing Officer for fresh adjudication in light of the Special Bench decision in Amway India Enterprises v. Dy. CIT [2008] 111 ITD 112 (Delhi). The order of CIT(A) was set aside, and the matter was restored to the Assessing Officer for fresh adjudication.2. Addition of Non-Compete Fee:The assessee contested the CIT(A)'s confirmation of the addition of Rs. 16,00,000 paid as a non-compete fee. The Assessing Officer had disallowed Rs. 16 lakhs, allowing only Rs. 8 lakhs for the second year of a four-year agreement. The CIT(A) upheld this, stating the payment led to an enduring benefit by eliminating a competitor. The Tribunal found merit in the assessee's submission that the matter should be remanded to the Assessing Officer for fresh adjudication since the assessee did not claim any expenditure in the P&L account during the year. The issue was restored to the Assessing Officer for fresh adjudication.3. Disallowance Under Section 40(a)(i) for Non-Deduction of Tax:The assessee challenged the disallowance of Rs. 75,31,489 and Rs. 6,43,07,700 for non-deduction of tax. The amounts were paid towards legal and professional fees and services from Rediff.Com Inc. The Tribunal noted that the assessee failed to provide details before the Assessing Officer but submitted them to the CIT(A), who did not consider them. The Tribunal restored the issue to the CIT(A) for fresh adjudication in light of the documents submitted and the decision of the Supreme Court in G.E. Technology Cen. (P.) Ltd. v. CIT [2010] 327 ITR 456/193 Taxman 234.4. Addition of Prior Period Expenses:The assessee contested the addition of Rs. 64,60,337 as prior period expenses. The Assessing Officer disallowed the expenses, stating the assessee failed to prove they crystallized during the year. The CIT(A) upheld this, noting the assessee did not provide documentary proof. The Tribunal found no infirmity in the CIT(A)'s order, stating the onus was on the assessee to justify the expenses as genuine business expenditure. The addition was upheld.5. Verification of Software Usage Expenses and Fixed Assets:The revenue contended that the CIT(A) erred in directing the Assessing Officer to verify software usage expenses of Rs. 68,45,718 and fixed assets of Rs. 23,00,000. The Tribunal noted that while the CIT(A) has no power to set aside the issue, the Tribunal does. The issues were restored to the Assessing Officer for verification and fresh adjudication.6. Allowance of Bad Debts:The revenue challenged the CIT(A)'s direction to allow bad debts of Rs. 3,54,984. The Assessing Officer disallowed the claim, stating the transactions pertained to the current year. The CIT(A) allowed the claim, noting the assessee met the conditions of section 36(1)(vii) read with section 36(2). The Tribunal upheld the CIT(A)'s order, citing the Supreme Court decision in T.R.F. Ltd. v. CIT [2010] 323 ITR 397, which held that post-amendment, it is not necessary to establish that the debt has become irrecoverable.7. Depreciation on Software Acquired:The revenue contested the CIT(A)'s direction to revise depreciation on software acquired during the year at 60% instead of 25%. The Tribunal remanded the issue to the Assessing Officer for fresh adjudication in light of the Special Bench decision in Amway India Enterprises and in accordance with the law.Conclusion:The appeals were partly allowed for statistical purposes, with several issues remanded to the Assessing Officer or CIT(A) for fresh adjudication. The Tribunal emphasized the need for proper verification and adherence to legal precedents in deciding the issues.