2010 (12) TMI 733 - AT - Income Tax

Appeal allowed for statistical purposes with issues remanded back for re-examination and fresh decision.

Ogilvy and Mather (P) Ltd. Versus Addl. CIT

The appeal was allowed for statistical purposes, with various issues remanded back to the Assessing Officer (A.O.) for re-examination and fresh decision. ... Payment to sister concern - disallowance 40A(2)(a) - Held that:- We are surprised that the learned CIT(A) also has not understood provisions of section 40A(2) and confirmed the addition on presumptions. The assessee has furnished details of its client-wise billing and income statement which indicates that profit margin varies from 5.1% to 9% in large number of clients' accounts. Since the A.O. has not rejected the books of account nor countered the facts as submitted by the assessee in the business with reference to other Ad business conducted, we are of the view that the A.O. has wrongly invoked provisions of section 40A(2) for making an addition on so called profit margin which itself is not sustainable in any other way considering the facts of the case. In view of this, we delete the addition so made. Assessee's ground on this is allowed.Software expenses as capital expenditure -similar issue was raised in assessee's own case in A.Y. 2000-01 and 2004-05 and in these years the matter was remanded to the file of the A.O. for taking a fresh decision in accordance with the view taken by the Special Bench of the Tribunal in Amway India Enterprises vs. DCIT (2008 -TMI - 64346 - ITAT DELHI-C).Respectfully following the precedent, we set aside the impugned order on this issue and restore the matter to the file of the A.O.Repairs and renovation expenses carried out at lease premises, - The expenditure incurred in renovation and repairs and maintenance on the lease property is to be treated as revenue expenditure and accordingly the ground is allowed. Addition is deleted. bad debts which are written off as irrecoverable - 36(1)(vii) read with section 36(2)- if the amounts are written off in the books of account it is sufficient to allow the amount under the provisions of section 36(1)(vii) r.w.s. 36(2). - therefore, we are of the view that this issue can be re-examined by the A.O. and allow the amounts after due verification.Revised computation of income - the AO has no power to admit fresh claim otherwise than revised return but appellate authorities including CIT(A) and ITAT have power to admit such claim. Without prejudice to the above finding, we admit the assessee's claim which is in accordance with the judgment of the Apex Court in the case of Goetz India Ltd. (2006 -TMI - 5171 - SUPREME Court).In the interest of natural justice and keeping in view the ratio laid down by the Apex Court in the case of Goetze (India) Ltd. (2006 -TMI - 5171 - SUPREME Court), we remit the matter back to the file of the CIT(A) with a direction to decide the issue on merit in accordance with law after providing reasonable opportunity of hearing to both the sides.' Issues Involved:1. Disallowance under Section 40A(2)(a) of the Income Tax Act.2. Treatment of software expenses as capital expenditure.3. Treatment of repairs and renovation expenses as capital expenditure.4. Non-allowance of bad debts written off under Section 36(1)(vii) read with Section 36(2).5. Incorrect consideration of returned income.Issue-wise Detailed Analysis:1. Disallowance under Section 40A(2)(a) of the Income Tax Act:The issue pertains to the disallowance of Rs.12,72,914/- out of payments made to RMG David Communications Pvt. Ltd. under Section 40A(2)(a). The Assessing Officer (A.O.) noted that the assessee paid Rs.3,85,31,541/- to its sister concern and concluded that the profit margin in the hoarding business should be 15%, whereas the assessee reported a margin of 4.20%. The A.O. apportioned the shortfall of 6.92% between the assessee and its sister concern, resulting in the disallowance. The CIT(A) upheld this decision, noting the industry norm of a 15% profit margin. However, the Tribunal found that the A.O. incorrectly applied Section 40A(2)(a) by adding an amount as Gross Profit (G.P.) rather than disallowing the expenditure. The Tribunal noted that the A.O. did not reject the books of account or establish how a higher margin could be earned. The Tribunal concluded that the provisions of Section 40A(2) were wrongly invoked and deleted the addition.2. Treatment of Software Expenses as Capital Expenditure:The assessee incurred Rs.23,05,104/- on software expenses, which the A.O. disallowed as capital expenditure. The Tribunal noted that similar issues in the assessee's previous years were remanded to the A.O. for fresh consideration in line with the Special Bench decision in Amway India Enterprises vs. DCIT. Following the precedent, the Tribunal set aside the impugned order and restored the matter to the A.O. for fresh decision.3. Treatment of Repairs and Renovation Expenses as Capital Expenditure:The A.O. treated the repairs and renovation expenses as capital expenditure, which was upheld by the CIT(A) based on previous years' reasoning. The Tribunal referred to its earlier decisions in the assessee's own case, where similar expenses were treated as revenue expenditure. The Tribunal found no distinguishing features for the current year and deleted the addition, directing the A.O. to withdraw any allowed depreciation.4. Non-allowance of Bad Debts Written Off:The assessee wrote off Rs.3,43,35,822/- as bad debts, out of which the A.O. disallowed Rs.2,23,56,514/- on the grounds that the conditions under Section 36(2) were not satisfied. The CIT(A) upheld the disallowance, questioning the bona fides of the write-off. The Tribunal found that the amounts written off were settlements or discounts in the course of business and that the A.O. misunderstood the nature of these write-offs. The Tribunal noted that bad debts are allowable once written off in the books, as per the Supreme Court's decision in TRF Ltd. The Tribunal remanded the issue back to the A.O. for re-examination, allowing the assessee to explain its claim fully.5. Incorrect Consideration of Returned Income:The assessee claimed that its returned income was taken at Rs.55,80,99,212/- instead of Rs.55,71,09,880/-. The CIT(A) dismissed the claim, citing the Supreme Court's decision in Goetze (India) Ltd. vs. CIT, which restricts the A.O. from entertaining claims without a revised return. However, the Tribunal noted that appellate authorities, including the CIT(A), have the power to admit such claims. The Tribunal directed the A.O. to consider the revised computation and rework the income, restoring the matter back to the A.O.Conclusion:The appeal is allowed for statistical purposes, with several issues remanded back to the A.O. for re-examination and fresh decision. The Tribunal provided detailed reasons for its conclusions, emphasizing the correct application of legal provisions and precedents.