2017 (4) TMI 1091 - AT - Income Tax

Tribunal rules in favor of assessee, rejecting revenue's appeal on film production expenses and creditor write-back.

Assistant Commissioner of Income-tax, 11 (1), Mumbai Versus Precept Ltd.

The Tribunal dismissed the revenue's appeal and allowed both appeals of the assessee. The revenue's contentions regarding the allowance of film production ... Allowance of film production expenses under Rule-9A of the Income Tax Act - Held that:- The material available on record which reveals that the film 'Traffic Signal' was released vide 'Central Board of Film Certification (CBFC)' certificate No. CIL2/93/2006 dated 31/12/2006. Further, a perusal of the chart showing deduction as per Rule 9A for AY 2007-2008 reveals that the assessee has deferred claim of ₹ 170.75 Lacs against this movie, which has been claimed in impugned AY and thus did not claim this expenditure in earlier AY. Therefore, the same was allowable to the assessee as per Rule 9A as rightly concluded by Ld. CIT(A) and therefore, we see, no reason to interfere with the same. The appeal of the revenue stand dismissed. Disallowance of claim u/s 35D - Held that:- The assessee got converted into public company and issued share capital. It incurred expenditure of the nature covered by Section 35D as fortified by the judicial pronouncements of Hon'ble High Courts Madhya Pradesh & Rajasthan relied upon by the assessee. Due TDS was deducted on brokerage amount. The assessee earned substantial revenue from production of films and hence, an 'industrial undertaking' as per decisions of jurisdictional Hon'ble Bombay High Court cited by the assessee. Hence, we are inclined to conclude that the assessee is eligible for impugned expenditure u/s 35D. This ground of assessee's appeal stands allowed. Additions u/s 41(1) qua write-back of certain creditors - Held that:- Let us hypothetically assume that the assessee took over certain fictitious liabilities meaning thereby that actual liabilities stood at lower value. In that case, the value of 'net assets' i.e. 'Value of Assets taken over Less value of liabilities taken over' would have been at higher value and consequently, the value of goodwill, which was nothing but 'total consideration less net assets' would have been at lesser value thereby resulting into less depreciation claim for the assessee. Even in that situation, as per the above cited apex court judgment, depreciation is neither a loss, nor an expenditure, nor a trading liability, referred to in s. 41(1). Hence, the same further supports the stand of the assessee. Even otherwise, we are of the considered opinion that neither clause (a) nor clause (b) of Section 41(1) applies to the assessee on the facts and circumstances of the case. Hence, from any angle, we are inclined to delete the impugned addition and allow this ground of assessee's appeal. Issues Involved:1. Allowance of film production expenses under Rule 9A.2. Disallowance of claim under Section 35D.3. Additions under Section 41(1).Issue-wise Detailed Analysis:1. Allowance of Film Production Expenses under Rule 9A:The revenue's appeal for AY 2008-09 contested the allowance of film production expenses under Rule 9A of the Income Tax Act. The assessee, engaged in film production, claimed production and distribution expenditure on three films released in earlier years. The AO added Rs. 2,62,03,959/- to the assessee's income, treating it as prior period items. The CIT(A) allowed the expenditure for the film 'Traffic Signal', released in the last quarter of FY 2006-2007, as per Rule 9A. The Tribunal upheld CIT(A)'s decision, noting that the assessee deferred the claim of Rs. 170.75 Lacs for AY 2007-2008 and claimed Rs. 166.05 Lacs in the impugned AY, thus allowable under Rule 9A. The revenue's appeal was dismissed.2. Disallowance of Claim under Section 35D:The assessee's appeal for AY 2008-2009 challenged the disallowance of Rs. 28,32,640/- claimed under Section 35D. The AO disallowed the claim, noting that the assessee, a private limited company, had no public issue during the year and the expenses were not debited to the Profit & Loss Account. The CIT(A) confirmed the disallowance. The Tribunal, however, found that the assessee, converted to a public limited company, incurred qualifying expenditure for issuing fresh capital. The Tribunal cited judicial pronouncements and concluded that the assessee, engaged in film production, qualified as an 'industrial undertaking' eligible for deduction under Section 35D. The appeal was allowed.3. Additions under Section 41(1):The assessee's appeal for AY 2008-2009 also contested the addition of Rs. 1,54,82,301/- under Section 41(1) for the write-back of certain creditors. The AO treated the write-back as capital receipts and added it to the income. The CIT(A) upheld the addition, treating the assessee as a 'successor' in business. The Tribunal, however, noted that the assessee acquired the business on an 'outright purchase basis' and not as a 'successor'. The write-back did not constitute income under Section 41(1) as the assessee never claimed any deduction for these liabilities. The Tribunal deleted the addition and allowed the appeal.Separate Judgments:The Tribunal delivered a combined order addressing all issues. The revenue's appeal was dismissed, and both appeals of the assessee were allowed.