2012 (2) TMI 386 - HC - Income Tax

Court affirms license fee as business income, allows hotel building depreciation.

The court upheld the assessment of license fee as business income for the relevant assessment years, as per the hotel operator agreement. Disallowance of ... Depreciation on hotel building given on lease – non-disclosure of licence fees as income after A.Y. 1995-96 by assessee on ground of dispute between assessee and ITC Ltd – settlement agreement executed - A.O. made addition on accrual basis and allowed depreciation – search conducted in 2007 – A.O. disallowed depreciation on ground that hotel building was not being used for business – Held that:- CIT(A) deleted dis-allowance of depreciation on ground that for claiming the depreciation it is not necessary to use the asset by the assessee directly. The appellant's ownership over the asset on which depreciation is claimed is not under dispute and user of these assets in business is also not under dispute.Tribunal has also recorded that licence fee receivable should be included as 'business income' and accordingly, depreciation on hotel building is to be allowed. Aforesaid is upheld – Decided against the Revenue. Issues:1. Assessment of license fee as income for assessment years 2001-02 and 2002-03.2. Disallowance of depreciation on hotel building by the Assessing Officer.3. Dispute regarding ownership and usage of hotel assets for business purposes.4. Applicability of principles regarding depreciation in lease transactions.5. Settlement agreement between the assessee and ITC Ltd.6. Discrepancies in the treatment of license fee and depreciation in assessment proceedings.Analysis:Issue 1: Assessment of license fee as incomeThe respondent assessee, who owns a hotel in Mumbai, had a lease agreement with ITC Ltd. entitling them to 23% of the gross turnover as license fee. The Assessing Officer added the license fee to the assessee's business income for the assessment years in question. The CIT(Appeals) and the Tribunal upheld this treatment, emphasizing that the license fee was to be considered as business income under the hotel operator agreement. The assessee did not challenge this addition during the appellate proceedings. Therefore, the assessment of the license fee as income was deemed appropriate.Issue 2: Disallowance of depreciation on hotel buildingFollowing search operations and subsequent assessment under Section 153A, the Assessing Officer disallowed depreciation on the hotel building, claiming it was not being used for business purposes. However, the CIT(Appeals) reversed this decision, stating that ownership and usage of the asset for business were not in dispute. The Tribunal also supported this view, allowing depreciation on the hotel building. Therefore, the disallowance of depreciation was deemed unjustified based on the facts presented.Issue 3: Ownership and usage of hotel assetsThe Tribunal confirmed that there was no dispute regarding ownership of the hotel assets and that the license fee was appropriately taxed as business income. It was established that the hotel building was being used for business purposes, justifying the allowance of depreciation. The consistent treatment of these aspects in past assessments further supported the decision to allow depreciation on the hotel building.Issue 4: Principles regarding depreciation in lease transactionsThe CIT(Appeals) highlighted the principle that in lease transactions, the lessor can claim depreciation on assets used by the lessee for business purposes. This principle was applied to the current case, where the assessee allowed ITC Ltd. to operate the hotel. Consequently, the depreciation on the hotel assets was deemed allowable in the hands of the assessee against the business receipt from the license fee.Issue 5: Settlement agreement and discrepanciesDisputes between the assessee and ITC Ltd. regarding the damaged hotel building were resolved through a mutual settlement and a consent award. Despite discrepancies in the treatment of license fee and depreciation in various assessment years, the settled position for the relevant assessment years was that the license fee was added to the income while depreciation on the hotel building was allowed.Conclusion:Based on the findings and facts presented by the CIT(Appeals) and the Tribunal, it was concluded that no substantial question of law arose in the appeals filed by the Revenue. The consistent treatment of the license fee as business income and the allowance of depreciation on the hotel building were upheld. Therefore, the appeals were dismissed accordingly.