Prior
period expenses charged to profit and loss account cannot be deducted from
profit of year for purpose of computing book profit under section 115JB
Minimum
alternate tax (Prior period expenses) – The Supreme Court in Apollo Tyres has
held that there cannot be two incomes one for the purpose of Companies Act and
another for the purpose of Income-tax Act. It has further been held that
Assessing Officer while computing the income under section 115J of the Act has
power to examine whether books of accounts are certified by the authorities
under the Companies Act and the Assessing Officer has limited power of making
increase and deductions as provided in the explanation to section 115J of the
Act. It is pertinent to note that provisions of section 115J or section 115JB
of the Act are parimateria. It has further been held that section 115J(1A) of
the Act empowers the authority under the Income-tax Act, 1961 to probe into the
accounts accepted by the authorities under the companies Act. In the instant
case, deletion as sought for by the assessee does not fall within the purview
of section 115 JB of the Act. Therefore, the Commissioner of Income-tax
(Appeals) and the tribunal were not justified in deducting the addition made on
account of prior period expenditure while computing book profits under section
115 JB of the Act. The second substantial question of law is therefore,
answered in the negative and in favour of the revenue. [In favour of revenue] (Related
Assessment year : 2003-04) – [CIT, Bangalore v. GMR Industries Ltd. (2020) 425
ITR 504 : 122 taxmann.com 8 (Karn.)]
Assessee had commenced production on 03.10.1997,
assessee was entitled to deduction under section 10A for 10 years upto
assessment year 2007-08 and thus, claim of deduction under section 10A for
assessment year 2009-10 was a wrong claim
Free
trade zone (Period of deduction) - From the plain reading amended section of
Sec.10A, it is clear that the assessee is eligible for deduction under section 10A
for the period of 10 years from the date of commencement of
production/manufacture of articles/things for 10 consecutive Assessment years.
It was also made it clear in section that where in computing the total income
of the undertaking for any assessment year, its profits and gains had not been
included by application of the provisions of this section as it stood
immediately before its substitution by the Finance Act, 2000, the undertaking
shall be entitled to deduction referred to in this sub-section only for the
unexpired period of the aforesaid ten consecutive assessment years. The
assessee is in existence from 1997-98 which had commenced
production/manufacture of articles/things during the Financial year 1997-98 and
exemption period of 10 years was ended with the Assessment
year 2007-08 and therefore for the Assessment year under consideration, the
assessee is not eligible for deduction under section 10A as held by the Ld. CIT(A)
in his order. Accordingly, the order of the Ld.CIT(A) is upheld and the appeal
of the assessee is dismissed. [In favour of revenue] (Related Assessment year :
2009-10) – [Accurate Data Convertors (P.) Ltd. v. ITO, Coimbatore (2017) 88
taxmann.com 662 : 58 ITR(T) 94 (ITAT Chennai)]
Since
assessee had failed in proving crystallization of prior period expenditure
which included professional fee during the relevant year, Assessing Officer was
justified in disallowing deduction claimed by assessee. - [Adani Gas Ltd. v.
ACIT 2016 TaxPub (DT) 843 (ITAT Ahmedabad)]
Liability
on account of prior period expenses had not been crystallized during relevant
year, same could not be allowed as deduction
The
disallowance of Rs. 13,298/- under the head prior period expenses. The
Assessing Officer observed that the assessee had claimed prior period expenses
at Rs. 13,298/- as tax audit report. The assessee filed relevant detail before
the Assessing Officer for claiming expenses and proved the liability, had been
crystallized during the year under consideration but the ld Assessing Officer
made addition of Rs. 13,298/- being prior period expenses which has been
confirmed by the ld CIT(A) by holding that these additions were made by the
Assessing Officer on the basis of audit report.
Held
: We have heard the rival contentions of both the parties and perused the
material available on the record as well as observations made by the lower
authorities. Even ld AR of the assessee had not been able to prove these
expenses were crystallized during the year under consideration. Therefore,
order of the ld CIT(A) is upheld. Accordingly, this ground of the assessee’s
appeal is dismissed. [In favour of revenue] (Related Assessment year : 2009-10)
– [JCL Electromet (P) Ltd. v. Addl. CIT, Jaipur (2017)
178 TTJ 28 : 83 taxmann.com 250 : 47 ITR(T) 85 (ITAT Jaipur)]
Question
as to whether Tribunal was right in allowing partial relief to assessee in
respect of prior period expenses, was a question of law
Section
37(1), read with section 256, of the Income-tax Act, 1961 - Business
expenditure - Allowability of [Prior period expenses] - So far as Question No. [D] is
concerned, considering the smallness of the amount involved, we are not
inclined to entertain the present appeal qua Question No.[D]. However, by that
it may not be construed that we have approved decision of the Tribunal in
rejecting the Revenue’s appeal, which was an independent appeal solely on the
ground that the assessee’s appeal against the order passed by CIT(Appeals) has
been dismissed.
In view of the above,
present Tax Appeal is admitted on the following substantial questions of law :— “Whether the Tribunal is right in law and on
facts in confirming the order passed by the CIT(A) in restricting the addition
on account of prior period expenses to Rs.43,81,470/- and granting relief of
Rs.1,09,89,354/-?”
Held : Question as to
whether Tribunal was right in allowing partial relief to assessee in respect of
prior period expenses, was a question of law. [in favour of revenue] - [CIT v. Gujarat Mineral
Development Corporation Ltd. (2014) 221 Taxman 110 : 42 taxmann.com 142 (Guj.)]
Assessee
incurred expenditure prior to setting up of its business, no allowance of
assessee's claim under section 37(1) or section 32(1) during said period could
be made out
The assessee, a newly incorporated
company filed its return of income for the year by claiming a business loss and
depreciation both for being carry forward and set off in the subsequent year/s
in the absence of any income or receipt in the relevant year. As sought, the assessee
could not produce any evidence to prove that the business activity of the
assessee had started during such relevant year. Subsequently, the assessee’s
claim for business loss as well as for depreciation were not allowed. On
appeal, the Commissioner (Appeals) examined the matter in detail and after
relying on various decisions, he disallowed the claim of the assessee. On
appeal:
Held
: No answers emanate from either the material on record or the assessee's
explanations, with the expenses as incurred itself revealing the state of
preparedness of the company toward commencing its business. It was viewed that
the company is clearly in the setting up stage. Besides, clearly, it is only
the expenditure, post set-up that could be claimed as a business expenditure,
while admittedly the company has claimed the entire expenditure incurred by it
since inception, including as it appears expenditure on its' incorporation
itself, which are only, likewise, capital costs. Alternatively speaking, the
implication of no incorporation expenses or the company being established on
the very date of its incorporation, are both unsupported as well as bizarre
propositions. No case for allowance of the assessee’s claim under section 37(1)
or section 32(1), as the case may be, is accordingly made out. [In favour of
revenue] (Related Assessment year : 2005-06) – [ALD Automotive (P) Ltd. v.
DCIT (2014) 65 SOT 6 : 45 taxmann.com 530 (ITAT Mumbai)]
Expenditure
to be disallowed where assessee failed to prove as to crystallization in
current year
It
was held that while upholding the disallowance of the expenses, the Commissioner
(Appeals) has noted that the assessee had not submitted any evidence to prove
that the expenses crystallized during the year either before Assessing Officer
or before the Commissioner (Appeals). The statement of expenses very clearly
indicated that the expenses were related to Assessment Year 2000-01. Therefore
there was no reason to interfere with the order of the Commissioner (Appeals)
disallowing the prior expenses, after offsetting the income of earlier year. - [ACIT
v. Adani Wilmar Ltd. (2014) Tax Pub (DT) 3727 : 64 SOT 122 (ITAT Ahmedabad)]
In course of assessment, Assessing Officer wrongly
allowed assessee's claim in respect of certain expenses which did not relate to
assessment year under consideration, Commissioner in exercise of his power
under section 263 rightly passed a revisional order setting aside said assessment
The
scheme of the IT Act is to levy and collect tax in accordance with the
provisions of the Act and this task is entrusted to the Revenue. If due to
erroneous order of the Assessing Officer, the Revenue is losing tax lawfully
payable by a person, it will certainly be prejudicial to the interest of the
revenue. As held in the case of Malabar Industries Co. Ltd., Malabar
Industrial Co. Ltd. v. CIT (2000) 243 ITR 83 : 109 Taxman 66 (SC), the
Commissioner can exercise revision jurisdictional u/s 263 if he is satisfied
that the order of the Assessing Officer sought to be revised is (i)erroneous;
and also (ii) prejudicial to the interests of the revenue.
In
course of assessment, Assessing Officer wrongly allowed assessee’s claim in
respect of certain expenses which did not relate to assessment year under
consideration. There is no doubt that
this expenditure is prior period expenditure and not relating to the assessment
year under consideration. The assessee being following mercantile system of
accounting cannot claim this expenditure for the assessment year under consideration.
Commissioner in exercise of his power under section 263 rightly passed a
revisional order setting aside said assessment. [In favour of revenue] (Related
Assessment year : 2005-06) – [Navabharat Ventures Ltd. v. CIT (2013) 143 ITD
533 : 35 taxmann.com 50 (ITAT Hyderabad)]
Prior period expenses, year in which deductible
The
assessee claimed deduction in respect of prior period expenses. The Assessing
Officer disallowed the same. The Commissioner (Appeals) confirmed the
disallowance. On second appeal:
Held
: As per the details the total prior period expenses of Rs. 7,34,792 includes
the amount of Rs. 1,46,513 on account of advertisement expenses, Rs. 75,000 for
cost audit fee and Rs. 5,12,679 on account of raw material purchased. Regarding
the first item Rs. 1,46,513, it was submitted by the assessee that the payment
of these invoices was made in the year under consideration. There was no force
in this contention because it could not be shown that the payment of these
invoices was in dispute and hence, the order of the Commissioner (Appeals) on
this aspect could not be interfered with.
For
Rs. 75,000, it was the submission of the assessee that it is in respect of cost
audit fee of Ahmedabad unit for the financial year 2000-01 and 2001-02 but the
invoices are received only in the month of October, 2002. Copy of bills of cost
audit fees is placed in the paper book, as per which, these expenses are in
respect of cost audit fee for the financial year 2000-01 and 2001-02 and both
the bills are dated 1-10-2002 and 3-6-2002 but there is no evidence in this
regard that the audit itself was carried out after the end of these years,
i.e., in the present year. The audit was carried out in the earlier years and
hence, even if the bill was not received in the previous year, expenses should
have been considered in the respective year and hence deduction is not
allowable in the year under consideration.
The
third addition pertains to raw material purchased. It was submitted by the
assessee before the Commissioner (Appeals) that an amount of Rs. 9,87,320 was
pending to be payable to one ‘D’, supplier of raw material. However, as per
supplier's account, an amount of Rs. 15 lakhs was payable. It is also submitted
that the assessee disputed this difference amount and such dispute was settled
in the present year. The assessee has furnished a copy of ledger account which
indicate that there is pending balance of Rs. 15 lakhs as on 01.04.1999 and
same was pending balance even as on 01.10.2002 and there is a payment of the
same amount on 19.10.2002. There is no evidence in this regard that there was
any dispute and the dispute is settled in the present year. Hence, on this
aspect also, the assessee could not make out a case for deduction. [In favour
of revenue] (Related Assessment years : 2002-03 and 2003-04) - [Cadila
Pharmaceuticals Ltd. v. ACIT (2012) 147 TTJ 49 : 53 SOT 356 ; 25 taxmann.com
519 (ITAT Ahmedabad)]
Assessee failed to establish that
expenses in question were actually crystallized during instant year, same was
to be disallowed
Assessee had failed to establish
that the related expenses were actually crystallised during the year under
consideration. Since assessee was following the mercantile system of accounting
it has to establish that these liabilities pertaining to the previous year were
actually crystallised during the year under consideration. Since the assessee
had failed to do so the order of Commissioner (Appeals) was sustained. [In
favour of revenue] (Related Assessment year : 2006-07) - [DCIT v. Cosmo
Films Ltd. & Ors. (2012) 139 ITD 628 : 24 taxmann.com 189 : 13 ITR (Trib) 340
(ITAT Delhi)]
Expenses
on management fees and lease rent incurred before commencement of production
cannot be allowed on a spread over basis under section 35D
The
assessee-company had placed orders for machinery required for the plant which
was in the process of being put up. However it was unable to make all the
payments required to be made to the suppliers of machinery. It, thereafter,
entered into a lease and management agreement with ‘D’ company who paid the
balance payable to the suppliers, reimbursed the assessee the amount that it
had paid in part to the suppliers, acquired ownership of the machineries and
leased the machineries back to the assessee. There was a time-gap between the
lease back and the commencement of production during which period, the assessee
paid the lease rent and management fees to its lessor. The assessee claimed
that the lease rent and management fees paid by it to ‘D’ company during the
period prior to the commencement of production was required to be regarded as a
capital expenditure and allowed to be added to the cost of the plant and
machinery for the purpose of claiming depreciation.
The
claim so made by the assessee was initially allowed by the Assessing Officer.
The assessment so made was revised by the Commissioner under section 263 by
holding that the expenditure incurred on management fees and lease rent prior
to the commencement of production could not be regarded as revenue expenditure.
On
appeal by the assessee, the Tribunal even while holding that the management fee
and lease rent paid prior to the commencement of production could not be
treated as revenue expenditure and that such expenditure was also not covered
by section 35D nevertheless proceeded to grant relief by holding that by
analogy, the expenditure incurred by the assessee on the lease rent and
management fee prior to the date of commencement of production was in the
nature of preliminary expenses and therefore, should be allowed to be amortised
over a period of ten years.
Held
: What had been done by the Tribunal was to practically rewrite the statute and
include under section 35D items which have not been included therein. The
Tribunal cannot proceed to exercise that power and include within section 35D,
items which have not been included therein by the Parliament. The deductions
allowable under the Act have necessarily to be allowed in accordance with the
provisions of the Act as it exists. The Act must be applied as one finds it and
it is not open to the Tribunal to allow amortisation of expenditure for which,
the Act does not make provision for. Therefore the Tribunal was not right in
directing the Assessing Officer to allow the expenditure incurred on management
fees and lease rent before the commencement of production on a spread over
basis on the same line as in section 35D. – [CIT v. Ennar Steel & Alloy
(P) Ltd. (2003) 261 ITR 347 : 181 CTR 329 : (2004) 137 Taxman 429 (Mad.)]
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