2014 (5) TMI 999 - AT - Income Tax

Tribunal emphasizes evidence for business commencement, remands issue to AO. Revenue appeal allowed.

The Tribunal set aside the orders of the CIT(A) and AO in a case concerning the disallowance of preoperative expenses claimed by the assessee for a unit. ... Genuineness of expenses not proved – Commencement of business - Determination of specific date - Held that:- There is no reference to any agreement entered into by the assessee - the CIT(A) has made reference to two agreements however has not given any conclusive finding or has cared to examine them so as to come a finding as to when they were entered into and on the basis of the agreements on which specific date he has come to the conclusion that business has commenced in April 2006 - The CIT(A) should have come to a specific finding discussing the facts as to on what specific date in April 2006 he has come to the conclusion that business has commenced - business is a continuous course of activities and it has been variously held that for commencement of business all the activities which go to make up the business need not be started simultaneously. The assessee is engaged in the business of software development in the field of information technology, there is no such finding - No specific date has been considered to be the date on which considering the material on record the business can be said to have commenced - it is necessary for the assessee to lead the specific evidence in support of the arguments that the essential activity has started evidenced by some document on a specific date - The issue has not been considered in the proper perspective and only general argument has been advanced which has been accepted that business commended in April 2006 - No effort has been made to point out that on which specific date the business has commenced – thus, the matte is remitted back to the AO for fresh adjudication – decided in favour of Revenue. Issues:Disallowance of expenses claimed by the assessee for the concerned unit as preoperative expenses.Analysis:The Revenue filed an appeal against the order of CIT(A)-XIX, New Delhi for the 2007-08 assessment year, challenging the deletion of disallowance of Rs.53,11,973. The AO disallowed the expenses claimed by the assessee for Unit-2, stating that the business had commenced only on 31.03.2007, and therefore, the expenses were preoperative and should be capitalized. The AO required the assessee to explain the expenses, and upon review, disallowed the amount. The CIT(A), after considering submissions, ruled in favor of the assessee, stating that the business had commenced in April 2006, and the expenses were allowable as revenue expenditure. The AR argued that the expenses were for software development projects and should be treated as work in progress. The CIT(A) disagreed with the AO's characterization of the expenses as preoperative, noting that they were related to revenue accounts and should be allowed. The Revenue appealed to the Tribunal, arguing that the expenses were wrongly considered preoperative. The Tribunal noted that there was no conclusive finding on the agreements entered into by the assessee and that the CIT(A) had not provided specific evidence to support the commencement date of the business. The Tribunal set aside both orders and remanded the issue to the AO for a fresh decision, allowing the assessee to present necessary evidence.The Tribunal emphasized the importance of specific evidence to determine the commencement of business activities. It highlighted that the commencement of business does not require all activities to start simultaneously but rather the essential activity that signifies the start of the business. The Tribunal noted that in this case, there was a lack of specific evidence or findings on the date of business commencement. It pointed out that the CIT(A) did not provide a detailed analysis of when the business actually began, leading to a lack of clarity on the issue. Therefore, the Tribunal decided to set aside both orders and instructed the AO to re-examine the issue, allowing the assessee to present relevant evidence and arguments. The Tribunal's decision aimed to ensure a fair assessment based on concrete evidence and proper evaluation of the business commencement date.In conclusion, the Tribunal allowed the Revenue's appeal for statistical purposes and dismissed the CO filed by the assessee. The decision highlighted the need for specific evidence to support claims related to business commencement and expenses, ensuring a thorough evaluation of the case. The remand to the AO aimed to provide a fair opportunity for the assessee to present necessary evidence and for the AO to make a well-informed decision based on the facts presented.