2019 (10) TMI 1075 - AT - Income Tax

Non-compete fees treated as capital expenditure, entertainment and travel expenses partially disallowed. Section 80-O deduction issue remanded.

DSP Merrill Lynch Limited Versus JCIT-Special Range-22 Mumbai

DSP Merrill Lynch Limited Versus JCIT-Special Range-22 Mumbai - TMI Issues Involved:1. Disallowance of non-compete fees.2. Quantum of Deduction under Section 80-O.3. Disallowance of entertainment expenditure.4. Disallowance of traveling expenditure under Rule 6D.Issue-wise Detailed Analysis:1. Disallowance of Non-Compete Fees:The assessee entered into an agreement with D.S. Prabhodas & Co. (DSP) to pay Rs. 8 Crores as non-compete fees to ward off competition in the business of broking in the wholesale debt market and distribution of mutual funds. The assessee claimed this expenditure as a revenue expense. However, both the Assessing Officer (AO) and the Commissioner of Income-Tax (Appeals) [CIT(A)] treated it as capital expenditure, citing that the benefit derived was of an enduring nature without any time stipulation, thus improving the profit-making apparatus of the assessee. The Tribunal upheld this view, referencing several judicial precedents, including Hindustan Pilkington Glass Works [139 ITR 581], which supported that payments made to eliminate competition, resulting in enduring benefits, are capital in nature.2. Quantum of Deduction under Section 80-O:The assessee claimed a deduction under Section 80-O for Rs. 192.69 Lacs on account of fees received in convertible foreign exchange. The AO restricted the eligible amount to Rs. 56.92 Lacs, deducting allocable expenditure, resulting in an allowable deduction of Rs. 1.57 Lacs. The CIT(A) upheld this restriction, noting that the agreements with service recipients lacked necessary approvals and the information provided was general and vague. The Tribunal restored the matter to the lower authorities for re-evaluation, directing the assessee to substantiate its claim with requisite details and evidence.3. Disallowance of Entertainment Expenditure:The AO disallowed 75% of business meeting expenses as entertainment expenditure, which the CIT(A) reduced to 50%. The Tribunal found no infirmity in the CIT(A)'s order and confirmed the 50% disallowance.4. Disallowance of Traveling Expenditure under Rule 6D:The AO reworked the traveling expenditure disallowance, resulting in Rs. 1.64 Lacs, which the CIT(A) did not address specifically. The Tribunal confirmed the AO's disallowance as no serious arguments were advanced against it.Conclusion:The Tribunal upheld the disallowance of non-compete fees as capital expenditure and confirmed the 50% disallowance of entertainment expenditure and the traveling expenditure disallowance under Rule 6D. The issue of deduction under Section 80-O was remanded back to the lower authorities for re-evaluation. The appeal was partly allowed for statistical purposes.