2008 (2) TMI 421 - HC - Income Tax

Court rules in favor of assessee on multiple tax issues including debenture expenses & legal deductions

The court ruled in favor of the assessee on all five issues presented, including the disallowance of debenture issue expenses, weighted deduction for ... Amortization of Preliminary expenses – Business Expenses –Allowance – Remission or cessation of liability – deduction on actual payment basis – held that - the debenture issue expenditure in question is for the purposes of working capital in course of modernisation of the existing plant and machinery. Therefore, this is not a case which can fall within section 35D(1)(i) of the Act - the assessee will not be entitled to any deduction unless the assessee can establish that the advertisement or publicity was being done outside India for and on behalf of the assessee and in respect of goods the assessee deals in or provides in the course of his business u/s 35B - Mere withdrawal of the court cases and submitting the disputes to arbitration would, in no case, amount to cessation of liability, which is the pre-requisite condition, for applying the provisions of section 41 of the Act. The Tribunal has rightly come to the conclusion that in the absence of cessation of liability section 41 of the Act cannot be made applicable Issues:1. Disallowance of debenture issue expenses2. Weighted deduction regarding commission paid to Indian agents3. Addition made by way of adjustment entry in the municipal tax expenses account4. Deduction of legal expenses attributable to issue of debentures as revenue expenditure5. Disallowance made under section 43B of the Income-tax Act in respect of municipal tax and education cessIssue 1: Disallowance of Debenture Issue ExpensesThe Tribunal referred five questions to the court, including the disallowance of debenture issue expenses of Rs. 18,18,429. The assessee claimed these expenses as revenue expenditure, contending they were related to working capital. The Commissioner disallowed the claim, citing section 35D of the Income-tax Act. The Tribunal allowed the deduction, noting the expenses were part of a modernization program, not falling under section 35D. The court agreed, ruling in favor of the assessee.Issue 2: Weighted Deduction for Commission Paid to Indian AgentsThe Tribunal allowed a weighted deduction for commission paid to Indian agents based on export sales. The Revenue argued against this, citing a Supreme Court decision. The court referred to the apex court's ruling, stating that deductions for commission paid to entities like the State Trading Corporation were disallowed unless the expenditure directly benefited the assessee. As the commission was paid for export sales, the deduction was disallowed under section 35B, ruling in favor of the Revenue.Issue 3: Addition in the Municipal Tax Expenses AccountThe Tribunal deleted an addition of Rs. 6,37,885 made in the municipal tax expenses account. The Assessing Officer invoked section 41 of the Act, but the Tribunal held it was not applicable as the liability was disputed and ongoing. The court agreed, stating that the mere withdrawal of court cases and referral to arbitration did not constitute a cessation of liability, ruling in favor of the assessee.Issue 4: Deduction of Legal ExpensesLegal expenses of Rs. 10,043 and Rs. 13,500 related to debenture issuance were claimed as revenue expenditure. The Tribunal allowed the deduction, considering them as revenue expenses. The court found no fault in the Tribunal's decision and ruled in favor of the assessee.Issue 5: Disallowance under Section 43BThe issue involved disallowance under section 43B for municipal tax and education cess. The court noted that section 43B was not applicable for the assessment year 1983-84. As there was no infirmity in the Tribunal's order, the court ruled in favor of the assessee.In conclusion, the court ruled in favor of the assessee on all five issues, disposing of the reference with no costs awarded.