TaxTMI 
TaxTMI 
2017 (7) TMI 1416
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....udication:- "The Ld.CIT(A) has erred in confirming the order of the Ld.AO, who had added Rs. 1 crore to the income of the assessee invoking the provisions of Section 41 of the Act, being the amount received for installation of wind energy generators." B) Revenue's Appeal: ITA No.319/Mds/2015:- The Revenue has raised four grounds in its appeal, however the crux of the issue is that the Ld.CIT(A) has erred in deleting the addition made by the Ld.AO for Rs. 1,22,00,000/- being the claim of preliminary and pre-operative expenses U/s. 35D of the Act, without considering the decision of the Hon'ble Apex court in the case M/s. Brokebond India Ltd reported in 225 ITR 798 (SC). 3. Assessment Year 2011-12 A) Assessee's Appeal: ITA No.2468/Mds/2016:- The assessee has raised several elaborative grounds in its appeal, however the cruxes of the issue are stated herein below for adjudication:- (i) The Ld.CIT(A) has erred in confirming the addition made by the Ld.AO by disallowing the claim of additional depreciation U/s.32(1)(iia) of the Act for Rs. 55,33,000/-. (ii) The Ld.CIT(A) has erred in confirming the addition made by the Ld.AO for Rs. 55,23,....
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.... matter has not become final. However, the Ld.AO taking cue from the agreements executed between both the parties which is elaborated in his order invoked the provisions of Section 41(1) of the Act and treated the amount of Rs. 1 crore as income of the assessee for the relevant assessment year. On appeal, the Ld.CIT(A) confirmed the order of the Ld.AO by observing as under: "13. I have gone through the submissions made by the Appellant and also the order of the Assessing Officer. The assessee company filed Contact Agreement dated 29.04.2007 and Amendment dated 20.08.2007 with M/s. India Globalization Capital Inc. U.S.A. As per this Agreement has received Rs. 1 Crore for installation of 96 Nos. of 250 KV Wind Energy Generators. It is seen from the supplementary agreement that the contract expired on 31.03.2009. The amount of Rs. 1 Crore has been kept as liability for the past 3 financial years i.e. F.Y. 2007-08, 2008-09 and 2009-10. The Authorized Representative submitted that the assessee is not liable to refund the sum of Rs. 1 Crore to M/s. India Globalization Capital Inc. As seen from the details, the assessee has no liability to refund the amount of Rs. 1 Crore after t....
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....mercial prudence cannot be questioned by the Revenue. Therefore, if the assessee had declared the amount of Rs. 1 crore as its income, for the assessment year 2014-15 then there is no scope for the Revenue to make addition for the assessment year 2010-11 once again. Hence we hereby direct the Ld.AO to verify whether assessee had declared the amount of Rs. 1 crore as its income U/s.41(1) of the Act, for the assessment year 2014-15 and if found so, delete the addition made for the relevant assessment year and if found otherwise, reinstate his earlier order on this issue. 6. Revenue's Appeal in ITA No.319/Mds/2015, Assessment Year 2010-11 : Deleting the addition of Rs. 1,22,00,000/- being the claim of amortization of expenses U/s.35D of the Act :- The assessee had incurred expenditure towards commission for Rs. 6,10,00,000/- during the financial year 2008- 09 for raising private equity share to the tune of Rs. 61,95,99,594/- from M/s. Dubai Ventures LLC, Dubai UAE. The assessee had claimed the aforesaid amount as miscellaneous expenditure in the balance sheet and written off 1/5th of Rs. 6,10,00,000/- viz., Rs. 1,22,00,000/- as preliminary and pre-operative expenses in its pr....
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....cement can be attributable to extension of undertaking and is thus eligible for amortization under the provisions of Section 35D of the Act. 6.4 We have heard the rival submissions and carefully perused the materials on record. The moot question before us is whether the expenditure incurred as commission for procuring private placement of equity shares is allowable as deduction. The assessee has taken cover U/s.35D of the Act, to amortize such expenditure as preliminary expenses. However, on perusing the provisions of Section 35D(2) of the Act, it is clear that only specific expenditures are provided under the Act which can be amortized viz., "(a) expenditure in connection with (i) preparation of feasibility report; (ii) preparation of project report; (iii) conducting market survey or any other survey necessary for the business of the assessee. (iv) engineering service relating to the business of the assessee; Provided that the work in connection with the preparation of the feasibility report or the project report or the conducting of market survey or of any other survey or the engineering services referred to in this clause ....
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....under the capital field. Further as per the provisions of Section 35D of the Act, there is no scope for the assessee to amortize such expense. The decisions of the Hon'ble Apex Court supra and the provisions of Section 35D of the Act cited herein above was lost sight off by the Tribunal while passing orders in the earlier instance. Since, we are bound to follow the decision of the Hon'ble Apex Court, respectfully following the same, we hereby hold that, in the case of the assessee the commission expenses incurred towards increasing its equity capital base, can neither be amortized U/s.35D of the Act, nor it can be claimed as Revenue expenditure as it falls in the Capital field. It has been also categorically held by the Hon'ble Apex Court in the case Punjab State Industrial Development Corporation vs. CIT that expenses incurred in relation to increase in capital base is capital expenditure incurred by the assessee company, even though its certainty helps the company in profit making but yet it retains the characteristics of capital expenditure. In the case CIT vs. Motor Industries Limited reported in 229 ITR 139, the Hon'ble Karnataka High Court held that the expenses incurred in r....
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.... respect of legal and consultancy charges paid for private placement of equity shares. Since the expenses was related to assessment year 2009-10, the Ld.AO disallowed the claim of expenditure and even denied the benefit of amortization of expenses U/s. 35D of the Act. On appeal, the Ld.CIT(A) confirmed the order of the Ld.AO. Since, we have held hereinabove that the expenses incurred in the form of commission of Rs. 6,10,00,000/- for private placement of the equity shares of the assessee company, is not allowable for deduction U/s.35D of the Act, any expenses connected with it such as service tax also will not be entitled for the benefit of deduction U/s.35D of the Act to the assessee. Therefore, the appeal filed by the assessee does not have any merit. C) Ground 3(iii):- Disallowance of the advance written-off by the assessee as revenue expenditure for Rs. 2,04,26,000/-. During the course of scrutiny assessment proceedings, it was observed by the Ld.AO that the assessee had written off Rs. 2,04,26,000/- as revenue expenditure being the advance paid to M/s. MIC MiddleEast FZE in February 2009 for acquiring second hand cranes. Since this amount was not recoverable, the assesse....