TaxTMI 
TaxTMI 
2026 (5) TMI 1262
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....mon order for the sake of convenience and brevity. First, we take up the Revenue's appeal in ITA No. 1821/Del/2024 for A.Y. 2018-19. 2. Brief facts of the case are: During the year, the assessee company was engaged in the business of broadcasting of news channels and FM radio broadcasting and the main source of income was from advertisement while broadcasting of news and FM radio broadcasting. The assessee filed its return of income for A.Y. 2018-19 on 01.12.2018 declaring total income at Rs. 1,83,72,00,100/- as per normal provisions of the Act and book profits of Rs. 1,23,47,00,498 as per provisions of section 115JB of the Act. 2.1 The return was processed and intimation under section 143(1) of the Act was issued and sent to the assessee. As per the said intimation, income as per normal provisions of the Act was arrived at Rs. 1,85,29,29,590/- and Rs. 1,87,92,26,859/- u/s. 115JB of the Act. The return was selected for scrutiny under CASS (Computer Aided Scrutiny Selection). Subsequently, notice u/s. 143(2) of the Act was issued on 22.09.2019 and the same was duly served upon the assessee through e-filing portal / ITBA. Further, vide a letter dated 15.10.2020, the assessee....
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....is supplied by us) 4. Aggrieved with the said order, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) allowed the appeal of the assessee and the relevant extract of the said order is reproduced as under: "7. Ground No. 1 The appellant through this ground of appeal agitated that the AO disallowed the expenditure claimed towards the interest paid for delayed payment of license fee/renewal fee. The appellant through its written submission argued that: "1. The Assessee Company has been running radio stations for the last many years. During the month of December 2006, the assessee company entered into Grant of Permission Agreement (GOPA) with Ministry of Information and Broadcasting (MIB) and from the dates starting thereafter operationalized its 7 radio stations (i.e. Delhi, Mumbai, Kolkata, Amritsar, Jodhpur, Patiala and Shimla). 2. During the current assessment year the Assessee Company has paid renewal fees/license fees and capitalized the said expense in its books of accounts. 3. Based on letter dated 20.04.2017 from MIB it has also paid interest to MIB as it has made delayed payment of renewal fees/license fees. As ....
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....s three radio stations. Accordingly the assessee has paid the migration fees of 71.37 Cr along with interest of Rs. 13.78 Cr in April and May 2017. The Company now stands migrated to Phase III with effect from 1st April 2015 for 15 years with respect to three radio stations. The assessee has capitalized migration fees of Rs. 71.37 Cr in its books of accounts and claimed interest of Rs. 13.78 Cr on delayed payment of migration fees as revenue expenditure in its Profit and Loss Account. We would like to further mention that all these radio stations were continued to be operational from April 2015 without any break and carried on broadcasting activities till the date when it paid license fees along with delayed payment of interest 5. As per para 3.3 of Assessment Order dated 30.09.2021, the learned Assessing Officer stated that "the interest of Rs. 13.78 Cr paid by the Company for migration of its three FM radio stations is in the nature of capital expenditure as migration of 3 FM radio stations was conditional upon the payment of migration fees and interest." Here we would like to mention that correct facts have not been stated in the said statement as interest payment was n....
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....as being continued on the renewal of the said license in the phase manner like phase I, Phase II and Phase III. Therefore it cannot be said that the appellant acquired any new asset, only the expenditure towards interest paid to run the already established entity. Therefore following the decision of Hon'ble High court, and the discussion made above, the contention of the appellant is hereby accepted and the claim of the appellant in treating the interest paid for delayed payment of license fee is revenue in nature is allowed. Accordingly, the Ground No. 1 raised by the appellant is hereby allowed." (emphasis supplied by us) 5. Aggrieved with the said order, the Revenue is in appeal before us on the following grounds of appeal: "1. Whether, on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs. 10,33,85,802/- on account of disallowance of interest expenditure. 6. At the time of hearing before us, the Ld. CIT(DR) relied upon the grounds of appeal and the assessment order. 7. On the other hand, the ld. Sr. Counsel for the assessee, while relying upon the order of the Ld. CIT(A) filed a brief synopsis and ....
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....rs with respect to three radio stations namely, Delhi, Mumbai and Kolkata. The assessee thereafter capitalized migration fees of Rs. 71.37 Cr in its books of accounts and claimed interest of Rs. 13.78 Cr on delayed payment of migration fees as revenue expenditure in its Profit and Loss Account. Further, all these three radio stations namely, Delhi, Mumbai and Kolkata continued to be operational from April 2015 without any break and carried on broadcasting activities till the date when the assessee company paid the license fees along with delayed payment of interest. Further, the Ld. AR submitted that as per para 3.3 of Assessment Order dated 30.09.2021, the learned Assessing Officer stated that "the interest of Rs. 13.78 Cr paid by the Company for migration of its three FM radio stations is in the nature of capital expenditure as migration of 3 FM radio stations was conditional upon the payment of migration fees and interest" was not correct because interest payment was not conditional for radio station to continue but the interest was paid only since the license fees was not paid by Assessee Company within due time as per the GOPA with the Ministry of Information and Broadcasting.....
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....ead to revocation of the license vindicates the legal position that the said fees is paid towards the right to operate the telecommunication services and then to hold that license fee is part of capital expenditure, is not applicable in case of interest payments or penalty. Thus, in the absence of rights of revocation/termination of the agreement for default in payment of penalty/interest cannot be equated with consequences arising out of default in payment of the license fee which as per the judgement of the Hon'ble High Court in the case of Bharti Hexacom (supra) was similar to one time entry fee. Therefore, the interest/penalty payment arising out of default in payment of the license fee is merely compensatory in nature." (emphasis supplied by us) 8.1 In the present case, the letter dated 20.04.2017 (placed at page no. 197-198 of the P.B.) of the MIB regarding the terms and conditions of payments of Rs. 71.37 crores and Rs. 13.78 crores are reproduced as under: 8.2 Upon perusal of the same, at srl. no. 3 (ii) and (iii) it is seen that the payment of Rs. 3,40 21,994/-Rs. 10,38,25,741/- are for the payment of Non Refundable One Time Migration Fee (NOTMF) which is comp....
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....3, the High Court has rendered its decision of which relevant para is reproduced as under: "25. During the scrutiny proceedings, the AO observed that the assessee has made investments in its subsidiary and associate company and earned exempt income of Rs. 2,34,585/- in the relevant assessment year. The assessee had made a suo moto disallowance of Rs. 29,04,491/ However, the AO proceeded to invoke the provision of Section 14A of the Act r/w Rule 8D of the Income Tax Rules, 1962; computed a disallowance of Rs. 38, 94, 755/- and made an addition of Rs. 9,90,264/-. The CIT (A) reversed the said disallowance and deleted the addition on the ground that the AO has failed to record his satisfaction before invoking the provisions of Section 14 A of the Act and relying upon the decisions of this Court. 26. The ITAT in the impugned order has upheld the finding of the CIT (A) after observing that it is a settled principle of law that disallowance u/s. 14A of the Act cannot be more than the exempt income and finding that AO had mechanically invoked the provisions of Section 14A without recording its satisfaction. 27. The learned counsel for the revenue has not dispute....
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....igh Court in the appellant's own case and following the principles of consistency, it is the undersigned's considered view that as the appellant did not earn any exempt income during the year from the investment in question, the disallowance made by the AO was not warranted. Therefore the addition made by the AO to the tune of Rs. 67,71,000/- is hereby deleted. Accordingly, the ground No. 4 filed by the appellant is allowed." 12. Aggrieved with the said order, the Revenue is in appeal before us on the following ground of appeal: "2. Whether, on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs. 67,71,000/- on account of disallowance u/s. 14A of the I.T. Act, 1961 read with Rule 8D of the I.T. Rules, 1962." 13. At the time of hearing before us, the Ld. CIT(DR) relied upon the order of the AO and the grounds of appeal. 14. On the other hand, the ld. Sr. Counsel for the assessee, while relying upon the order of the Ld. CIT(A) filed a brief synopsis relying upon certain case laws. The said submissions are reproduced as under: Submission i. Since assessee company has earned no exempt inc....
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....ved by the legislature to be mandatory in nature and not voluntary. The AO further stated that the Assessee could also have very well made payment to an entity not covered by Section 80G or it could have directly incurred the expenditure for the specified purpose, but it chose to spend only in those areas where it could claim deduction u/s. 80G of the Act. Therefore, the sum paid by the Assessee cannot be considered as a 'donation' for the purpose of Section 80G of the Act as the element of charity is missing in it. Accordingly, the claim of the appellant towards deduction u/s. 80G was not accepted and the AO disallowed the same." 18. Aggrieved with the said order, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) allowed the appeal of the assessee and the relevant extract of the said order is reproduced as under: "11. Ground No. 5 Through this ground of appeal, the appellant agitated against the denial of claim of deduction of Rs. 1,41,81,521/- u/s. 80G of the Act. 11.1 The appellant has contended that it has incurred an expenditure for CSR and paid an amount of Rs. 2,83,63,043/- and claimed 50% of such expenditure u/....
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....Fluor Daniel India Pvt. Ltd. vs DCIT (ITAT Delhi) in ITA No. 3830/Del/2025 at pages 40 to 51, relevant pages 44 to 49 of PB - II. • Cheil India (P) Ltd. vs DCIT (ITAT Delhi) in ITA No. 169 taxmann.com.507 at pages 52 to 56, relevant pages 52 to 53 of PB - II. • Ericsson India Global Services (P) Ltd. vs ACIT reported in 160 taxmann.com 599 at pages 57 to 60, relevant page 57 of Pb - II. • Interglobe Technology Quotient (P) Ltd. vs ACIT (ITAT Delhi) reported in 207 ITD 360. 22 We have heard both the parties and perused the material available on record. In this case, the issue is regarding the claim of the assessee for deduction u/s. 80G of the Act amounting to Rs. 1,41,81,541/- on CSR expenditure of Rs. 2,8,63,043/-. This issue is covered in favour of the assessee in several decisions as relied upon by the assessee as referred above. For ready reference, the relevant findings of the Co-ordinate Bench in the decision of Cheil India (P.) Ltd. (supra) are reproduced as under: "5. We have heard both the parties and perused the records. 6. At the time of hearing, Ld. AR for the assessee submitted that the issue in dispute is squ....
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....he instant appeal. 5.2 Ld. Sr. DR did not controvert the aforesaid proposition made by the Ld. AR, but he supported the orders of the authorities below. 6. Upon careful consideration, we find considerable cogency in the contention of the Ld. AR that identical issue has been dealt by the Coordinate Bench of ITAT, Delhi vide order dated 28.05.2024 passed in ITA No. 95/Del/2024 (AY 2020-21) in the 5 case of Interglobe Technology Quotient Private Limited, wherein the Coordinate Bench has held as under:- "7. Learned DR has failed to bring forth any decision to the contrary. Thus, we accept the plea of learned counsel on the basis of case law cited, denial of CSR expenditure u/s. 37(1) of the Act is not embargo to claim deduction u/s. 80G of the Act. 7.1 Further, we like to observe that as a matter of fact as per Section 135 of the Companies Act, 2013 ('CA 2013), the qualifying Companies as mentioned therein are required to spend certain percentage of profits of last three years on activities pertaining to Corporate Social Responsibility (CSR). The expenditure on CSR, could be by way of expenditure on projects directly undertaken by said companies,....
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....resses the legislative intent and the rationale of disallowance of CSR expenditure referred to in section 135 of the Companies Act, that such expenditure is application of income and not incurred for the purposes of business. We are of considered view that this in itself justifies the grant of deduction u/s. 80G. As CSR 7 expenditure is application of income of the assessee under the Income Tax Act, that means it continues to form part of the Total income of the assessee. Section 80G(1) of the Act provides that in computing the total income of an assessee, there shall be deducted, in accordance with the provisions of this section, such sum paid by the assessee in the previous year as a donation. Further, section 80G(2) lists down the sums on which deduction shall be allowed to the assessee. Section 80G falls in Chapter VIA, which comes into play only after the gross total income has been computed by applying the computation provisions under various heads of income, including the Explanation 2 to section 37(1) of the Act. Thus, there is no correlation between suo-moto disallowance in section 37(1) and claim of deduction under section 80G of the Act. 7.5 As with regard to the reasoni....
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....f the Ld. CIT(A) is acceptable. Accordingly, Ground no. 3 of the appeal is dismissed. 23. In the result, appeal of the Revenue is dismissed. 24. Now, we take up the assessee's appeal in ITA No.- 1449/Del/2024 for A.Y. 2018-19. 25. The facts as summarized by the Ld. CIT(A) regarding this addition are reproduced as under: "6.1 Disallowance of depreciation of Rs. 1,52,42,500/- on intangibles of Rs. 6,09,70,000/-. The AO observed that the appellant company during the year under consideration, acquired the "Business constituting operations of Digital business" (Digital Business) from Living Media India Limited ("Holding Company", "LMIL") as a going concern on slump sale basis by way of execution of Business Transfer Agreement w.e.f January 1, 2018 (i.e. the acquisition date). Further, out of total consideration of Rs. 200,000,000 paid to LMIL for acquisition of Digital Business, an amount of Rs. 6,09,70,000/- has been capitalized under intangible assets. The company also claimed depreciation on the same amount @ 25% under intangible assets. The AO further observed that the said claim of the depreciation on intangibles that has neither been acquired nor existed in ....
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....be eligible for claiming any depreciation on any new asset which is claimed to have been acquired as a result of succession of business. The AO further stated that Since in the hands of the predecessor company, the cost of acquisition and consequent depreciation was unascertained, there cannot be depreciation in the hand of the successor company. AO further concluded the issue stating that the assessee failed to provide specific value of the intangibles for which the extra consideration was paid which was claimed to have been paid. It was necessary for the assessee to demonstrate and prove that the intangibles acquired as business or commercial rights, in the facts and circumstances of this case, was akin to any of the intangible assets being know-how, patents, copyrights, trademarks, licences, and franchises. Further, the intangibles recorded by the assessee as business or commercial rights on account of excess of payment over net assets taken over as a result of acquisition of Digital Business from its holding company as slump sale on going concern basis is not eligible for claiming depreciation. And therefore, the AO disallowed the depreciation of Rs. 1,52,42,500/- on the said b....
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....ion / merger / demerger but has acquired under slump sale, hence all the provisions / case laws, referred to in the Assessment Order for disallowance of depreciation, are not applicable to the assessee company. 8.2 The undersigned has perused the submission made by the appellant. There is no dispute on the acquisition of "Business constituting operations of Digital business" (Digital Business) from Living Media India Limited (LMIL) as a going concern on slump sale basis by way of execution of Business Transfer Agreement w.e.f January 1, 2018. The question arises whether the depreciation can be allowed on acquisition of good will by making the payment over and above the amount of total asset. The appellant has contended that the same has been acquired by the agreement of slump sale not by demerger or amalgamation and hence the rule related to the amalgamation and demerger is not applicable to its case. 8.3 The contention of the appellant has been considered. However, the point is to clarified that the claim of depreciation is regulated by the provision under section 32 of the Act. Accordingly to the Proviso 5 & Proviso 6 is squarely applicable in the instant case. ....
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....at is why they have been valued separately. ii. Further, in the assessment of Living Media India Ltd. for AY 2018-19, department had accepted the sale consideration received of a sum of Rs. 20 crores (kindly see pages 354 to 355 and 356 to 363 of PB-I), as such, Revenue cannot blow hot and cold, as accepting the sale consideration in hands of LMIL and disputing the acquisition price in the hands of assessee company. iii. No enquiry learned AO either from LMIL or the valuer whatsoever, has been made by such, disallowance of suspicion and i.e. PWC, as depreciation merely on surmises is not justified. iv. Even otherwise, goodwill is a depreciable asset whether acquired on amalgamation or slump sale provided it is backed by proper valuations. Reliance is placed on case laws enclosed at S. No. 11 to 13 of PB-II. Judgments to be relied upon: • "Areva T&D India Ltd. vs DCIT (Delhi HC) reported in 345 ITR 421 at pages 1 to 3 of PB III, relevant pages 2 and 3 (held portion). • Brembo Brake India (P) Ltd. vs DCIT (ITAT Pune) reported in 56 taxmann.com 217 at pages 4 to 12, relevant pages 4, 5 and 11 of PB - III. • SKS....
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....le profits over the years. Further, the Ld. CIT(DR) also stated that since, the written down value of the intangible block of asset was unascertained in the books of the respective predecessor companies, the actual cost would remain zero in the hand of respective successor companies as well and the assessee would not be entitled for the depreciation as claimed by it. Further, the Ld. CIT(DR) also submitted that as per the provisions of section 32(1)(ii) of the Act, it was necessary for the assessee to demonstrate and prove that the intangibles acquired as business or commercial rights, in the facts and circumstances of this case, was akin to any of the intangible assets being know-how, patents, copyrights, trademarks, licences, and franchises. Further, the Ld. CIT(DR) submitted that the intangibles recorded by the assessee as business or commercial rights on account of excess of payment over net assets taken over as a result of acquisition of Digital Business from its holding company as slump sale on going concern basis is not eligible for claiming depreciation. In this regard, the Ld. CIT(DR) relied upon the order dated 17.02.2026 of the Tribunal Pune Bench in the case of Aptara T....
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....ssionals who were in a position to provide quality development services at a very competitive price. Development of e-learning portal required the following expertise, and a team of professional a) Designing & Developing Content experiences & providing solutions to support the acquisition of new knowledge & skill b) Graphic Art & Designing, assembling images, Typography or Motion Graphics c) Translation, Localization & Voice over d) Applying principles & practices of software Quality Assurance. e) Images Purchase Production of e-learning Modules g) Process breaking in steps to improve Quality & time Deliver h) Programmer specialized in development of web applications using client server model, Typically HTML, CSS, Java, PHP, Dotnet, Etc i) Resourcing j) Web graphic Design, Authoring, Standardizing Code & search engine optimization. ............. 29. Shortly put, the Appellant gained significantly from the amalgamation, in the form of highly skilled employees, increased talent pool, significantly increased revenue, increased client and customer base, additional skills imparted....
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....e has adopted a colourable device by inflating the net assets of MLPL by way of inclusion of Goodwill even when no such asset existed in the books of the Transferor company-MLPL. ......... 18. Now on carefully considering the finding of ld.CIT(A), so far as the first aspect about the creation of Goodwill is concerned, we find that after the transactions taking place between unrelated parties and that running business is taken over or amalgamated, then certainly the assets are valued on the date of amalgamation and in this process sometimes the consideration to be paid is much more than the net assets and such deficit can either be reduced from Capital Reserve of the Transferee company as provided under Accounting Standard-14 but if the scheme of amalgamation provides and there being genuine transaction, then Hon'ble Courts have consistently held that such deficit is to be considered as Goodwill and eligible for depreciation. So far as this ratio of creation of Goodwill in genuine transaction of Amalgamation is concerned, we truly concur and in support there are plethora of decisions out of which some of them have also been referred and relied on by the ld. Cou....
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....ious customers in India. Interestingly, no sales have been effected to its related parties including the Holding Company by the assessee company, i.e. ATPL. Also post amalgamation, no sales have been effected to the Holding Company which indicates that the existing business of the subsidiary company prior to amalgamation has been discontinued post amalgamation and only the facilities or the assets appearing in the balance sheet prior to amalgamation as on 31.03.2014 has been transferred to the Transferee company ATPL. These facts again support the finding of ld.CIT(A) as well as the observation of ld. Assessing Officer that this is a mere colourable transaction and in the garb of inflating the value of assets and creation of Goodwill, assessee has intended to claim depreciation for the year under consideration and to be claimed in the subsequent years also. It is also an admitted fact that if new assets are added to the present set of assets on a running business then certainly some sales ought to increase but due to such amalgamation neither any new business has been added nor the profitability has increased much more than the situation prior to amalgamation as appearing from the ....
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....he purchase of the Digital Business was Rs. 2000 lacs. The break-up of the said 2,000 lacs and amount of Rs. 609.70 lacs was shown under the head 'Intangible assets' which the Ld. AR submitted constituted the work force of the Living Media India P. Ltd. Further, as per the details of the Business Transfer Agreement dated 01.01.2018 all the employees in employment of the seller shall stand transferred to the purchasers on the same terms and condition of employment as are offered by the seller on continuity in service basis to the purchaser which the assessee in this case. Even though, the AO states that the value of the said 'Intangible assets' was inflated by the assessee company to claim higher depreciation but the AO did not reject the valuation report given by PWC, by giving any adverse tangible finding. Further, the reliance by the AO on the sixth proviso to section 32(1) of the Act will not be applicable in the present case of the assessee as it is a case of slump sale and not a case of amalgamation to which the said proviso applies. Further, the case laws relied upon by the Ld. CIT(DR) is distinguishable in the facts of the present case in as much as the in case law relied up....
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.... reproduced as under: "12. In the present case, it is seen that the assessee vide slump sale agreement dated 30th June, 2004, acquired, as a going concern, the transmission and distribution business of the transferor Company w.e.f. 1 st April, 2004. As a result thereof, the running business of transmission and distribution was acquired by the transferee lock, stock and barrel minus the trademark of the transferor which was retained by the transferor, for lump sum consideration of Rs. 44.7 Crores. It is further seen that the book value of the net tangible assets (assets minus liabilities) acquired was recorded in the balance sheet of the transferor as on the date of transfer as Rs. 28.11 Crores. The said assets and liabilities were recorded in the books of transferee at the same value as appeared in the books of the transferor. The balance payment of Rs. 16,58,76,000/- over and above the book value of net tangible assets, was allocated by the transferee towards acquisition of bundle of business and commercial rights, clearly defined in the slump sale agreement, compendiously termed as "goodwill" in the books of accounts, which comprised, inter alia, the following:- (i) Busi....
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....rights of similar nature" have been additionally used, clearly demonstrates that the Legislature did not intend to provide for depreciation only in respect of specified intangible assets but also to other categories of intangible assets, which were neither feasible nor possible to exhaustively enumerate. In the circumstances, the nature of "business or commercial rights" cannot be restricted to only the aforesaid six categories of assets, viz., knowhow, patents, trademarks, copyrights, licenses or franchises. The nature of "business or commercial rights" can be of the same genus in which all the aforesaid six assets fall. All the above fall in the genus of intangible assets that form part of the tool of trade of an assessee facilitating smooth carrying on of the business. In the circumstances, it is observed that in case of the assessee, intangible assets, viz., business claims; business information; business records; contracts; employees; and knowhow, are all assets, which are invaluable and result in carrying on the transmission and distribution business by the assessee, which was hitherto being carried out by the transferor, without any interruption. The aforesaid intangible ass....
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....09,70,000/-. Accordingly, the disallowance of depreciation amounting to Rs. 1,52,42,500/- is deleted. Ground nos. 1 to 3 of the assessee's appeal is allowed. 32. In the result, the appeal of the assessee is allowed. 33. To sum up, the appeal of the Revenue in ITA No.- 1821/Del/2024 is dismissed and appeal of the assessee in ITA No.- 1449/Del/2024 is allowed. Order pronounced in the open court on 18.05.2026. ============= Document 1 No. N- 38014/1/2017-FM 1469 Government of India Ministry of Information and Broadcasting (FM Cell) Shastri Bhawan, New Delhii Dated 20 April, 2017 To M/s TV Today Network Ltd., FC 8, Sector- 16A, Film City, Noida, Uttar Pradesh-201301 Subject: Migration from Pvt. FM Ph-Il to Ph -!!! Reference: (i) M/s TV Today Network Ltd. letter dt. 16.02.2015, 20.03.2015, 25.09.2015, 27.01.2017 (il) MIB letter dt. 20.07.2015, 24.02.2015, 09.03.2015, 13.03.2015, 24.09.2015, 28.09.2015, 15.01.2016 (ili)Hon'ble High Court Delhi interim order dt. 26.05.2015, 02.02.2017 in WP(C) 5398/2015 Sir, I am directed to refer your letters under reference above and state as below: 2. This Ministry vide its letter dated 24.09.2015 gave an offer ....