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Hitz FM Radio India Ltd.
Hitz FM Radio India Ltd.
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DEPUTY COMMISSIONER OF INCOME TAX vs.HITZ FM RADIO INDIA LTD.
DELHI TRIBUNAL
N. K. SAINI, AM & SUCHITRA KAMBLE, JM
ITA No. 3685, 2129, 3689/Del/2013
Sep 8, 2015
(2015) 45 CCH 0396 DelTrib
(2015) 44 ITR (Trib) 0318 (Delhi)
Legislation Referred to
Section 32(1)(ii), 37(1), 40(a)(ia), 196, 30 to 38, 139, 10, 41(1), 18
Case pertains to
Asst. Year 200708 to 200910
Decision in favour of:
Assessee
Addition—Addition of capitalization of license fee and royalty expenditure— Deletion of
addition—Nature of expenditure—Assessee company was engaged in business of FM Radio
Broadcasting and filed return of income declaring loss—Records before AO showed that
Assessee company had paid amount of Rs. 48,58,967/ (Rs.3,000/ License Fee, Rs.
6,08,765/ RCS Fee, Rs. 27,19,446/ Prasar Bharati Fee and Rs. 15,27,756/ Broadcast Fee)
to Govt. of India, Department of Telecommunication (Prasar Bharati etc.) and royalty of
Rs.1,08,000/ in consideration for grant of licence to operate and provide services—
Assessee claimed expenditure in question to be revenue expenses—AO held that
expenditure on account of licence fee and Royalty was held to be capital expenditure
incurred for acquisition of intangible asset in form of licence which was for tenure of 10 to 20
yrs—AO made addition on account capitalization of license fee and royalty expenditure—
CIT(A) held that RCS license fee was in nature of a non exclusive and a nontransferable right
to use scheduling and broadcast software— CIT(A) held that, not in single items of
expenditure, Assessee received entire bundle of rights on permanent basis nor it got right to
further transfer such rights, no enduring benefits were received by it and payment in respect
of such agreements/athorisation was on year to year basis, which was linked to gross
revenue receipts of Assessee—CIT(A) deleted addition made by AO—Held, in case of Empire
Jute Co. Ltd. v. CIT, (1980) 124 ITR 1, Supreme Court observed that there may be cases
where expenditure, even if incurred for obtaining an advantage of enduring benefit, may,
nonetheless, be on revenue account and cost of enduring benefit may break down— If
advantage consisted merely in facilitating assessee’s trading operations or enabling
management and conduct of assessee’s business to be carried on more effectively or more
profitably while leaving fixed capital untouched, then expenditure would be on revenue
account, even though advantage may endure for an indefinite future—License fee and royalty
fee to Government of India was on a year to year basis and this fact was never disputed by
Revenue at any point of time and thus same had to be held as revenue in nature—Revenue’s
Appeal dismissed.
Held
In the case of Empire Jute Co. Ltd. v. CIT, (1980) 124 ITR 1, the Supreme Court observed that there
may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit,
may, nonetheless, be on revenue account and the cost of enduring benefit may break down. What is
material to consider is the nature of the advantage in a commercial sense and it is only where the
advantage is in the capital field that the expenditure would be disallowable on an application of this
test. If the advantage consists merely in facilitating the assessee’s trading operations or enabling
the management and conduct of the assessee’s business to be carried on more effectively or more
profitably while leaving the fixed capital untouched, the expenditure would be on revenue account,
even though the advantage may endure for an indefinite future. The license fee and the royalty fee
to the Government of India is on a year to year basis and this fact was never disputed by the
Revenue at any point of time and thus the same has to be held as revenue in nature keeping in
mind the decisions of the Supreme Court as well as the Delhi High Court.
(Para8)
Cases relied on
Empire Jute Co. Ltd. v. CIT, (1980)
Conclusion
As License fee and royalty fee to Government of India was on a year to year basis and this fact was
never disputed by Revenue at any point of time, hence same had to be held as revenue in nature
In favour of
Assessee
Addition—Addition of capitalization of license fee and royalty expenditure— Deletion of
addition—Nature of expenditure—Assessee company was engaged in business of FM Radio
Broadcasting and filed return of income declaring loss—Records before AO showed that
Assessee company had paid amount of Rs. 48,58,967/ (Rs.3,000/ License Fee, Rs.
6,08,765/ RCS Fee, Rs. 27,19,446/ Prasar Bharati Fee and Rs. 15,27,756/ Broadcast Fee)
to Govt. of India, Department of Telecommunication (Prasar Bharati etc.) and royalty of
Rs.1,08,000/ in consideration for grant of licence to operate and provide services—
Assessee claimed expenditure in question to be revenue expenses—AO held that
expenditure on account of licence fee and Royalty was held to be capital expenditure
incurred for acquisition of intangible asset in form of licence which was for tenure of 10 to 20
yrs—AO made addition on account capitalization of license fee and royalty expenditure—
CIT(A) held that RCS license fee was in nature of a non exclusive and a nontransferable right
to use scheduling and broadcast software— CIT(A) held that, not in single items of
expenditure, Assessee received entire bundle of rights on permanent basis nor it got right to
further transfer such rights, no enduring benefits were received by it and payment in respect
of such agreements/athorisation was on year to year basis, which was linked to gross
revenue receipts of Assessee—CIT(A) deleted addition made by AO—Held, in case of Empire
Jute Co. Ltd. v. CIT, (1980) 124 ITR 1, Supreme Court observed that there may be cases
where expenditure, even if incurred for obtaining an advantage of enduring benefit, may,
nonetheless, be on revenue account and cost of enduring benefit may break down— If
advantage consisted merely in facilitating assessee’s trading operations or enabling
management and conduct of assessee’s business to be carried on more effectively or more
profitably while leaving fixed capital untouched, then expenditure would be on revenue
account, even though advantage may endure for an indefinite future—License fee and royalty
fee to Government of India was on a year to year basis and this fact was never disputed by
Revenue at any point of time and thus same had to be held as revenue in nature—Revenue’s
Appeal dismissed.
Held
In the case of Empire Jute Co. Ltd. v. CIT, (1980) 124 ITR 1, the Supreme Court observed that there
may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit,
may, nonetheless, be on revenue account and the cost of enduring benefit may break down. What is
material to consider is the nature of the advantage in a commercial sense and it is only where the
advantage is in the capital field that the expenditure would be disallowable on an application of this
test. If the advantage consists merely in facilitating the assessee’s trading operations or enabling
the management and conduct of the assessee’s business to be carried on more effectively or more
profitably while leaving the fixed capital untouched, the expenditure would be on revenue account,
even though the advantage may endure for an indefinite future. The license fee and the royalty fee
to the Government of India is on a year to year basis and this fact was never disputed by the
Revenue at any point of time and thus the same has to be held as revenue in nature keeping in
mind the decisions of the Supreme Court as well as the Delhi High Court.
(Para8)
Cases relied on
Empire Jute Co. Ltd. v. CIT, (1980)
Conclusion
As License fee and royalty fee to Government of India was on a year to year basis and this fact was
never disputed by Revenue at any point of time, hence same had to be held as revenue in nature
In favour of
Assessee
Business Expenditure—Interest, commission, brokerage etc. to a resident—Nondeduction of
TDS—Disallowance of royalty—Deletion of disallowance— Assessee had claimed an amount
of 1,08,000/ as royalty paid to Government of India—AO held that from perusal of details it
had been gathered that assessee had not deducted any TDS on this payment and disallowed
as per provisions of S. 40(a)(ia)—CIT(A) held that payment was made to Government of
India and therefore, assessee was not required to deduct TDS and action of AO of invoking S.
40(a)(ia) was unjustified—CIT(A) deleted disallowance made by AO—Held, as per S. 196, no
deduction of tax shall be made by any person from any sums payable to government—In this
regard AO overlooked provisions of Section 196 and CIT(A) rightly allowed deduction to
assessee in this regard—Ground No. 3 of Revenue’s appeal was dismissed.
Held
As per Section 196 of the Act, no deduction of tax shall be made by any person from any sums
payable to government. In this regard the AO has overlooked the provisions of Section 196 of the
Act and CIT(A) has rightly allowed the deduction to the assessee in this regard.
(Para14)
Conclusion
As no deduction of tax shall be made by any person from any sums payable to government, AO
rightly overlooked provisions of S. 196 while making disallowance on account of nondeduction of
TDS
In favour of
Assessee
Held
AO passed his assessment order on the detail furnished by the assessee including the agreement
with AMSIPL and was of the view that the assessee shall not be able to discharge the said liability
until and unless such party in terms of the agreement brings revenue for the assessee in such
manner that profit arises from the operation when such party could be paid its dues . It was
informed by the AR that since profits were not generated the company could not pay to the creditor
and creditor could also not enforce the payment of date till profits and generated. However, the
agreement does not prescribe any time limit beyond which the appellant will be free from discharge
the liability to the said party and, therefore, it is not correct to assume that such liability has seized
to exist. Such liability remained unpaid does not amply that it has seized to exist in view of
Limitation Act 1963. The aforesaid liability exist in the books of accounts of both the debtor and the
creditor. The Hon’ble Supreme Court in case of Mahabir Cold Storage Vs. CIT [1991] 188 ITR 91
(SC) held that the entries in the books of account of the assessee would amount to an
acknowledgment of the liability within the meaning of section 18 of the Limitation Act, 1963, and
extend the period of limitation for the discharge of the liability as debt. Thus, the CIT(A) has rightly
deleted this addition.
(Para19)
Cases relied on
Mahabir Cold Storage Vs. CIT [1991] 188 ITR 91 (SC)
Conclusion
Entries in books of account of Assessee would amount to acknowledgment of liability within
meaning of S. 18 of the Limitation Act, 1963, and period of limitation for discharge of liability as
debt should be extended.
In favour of
Assessee
I.T.A NO. 3689/DEL/2013(ASSESSMENT YEAR 200910)Revenue’s Appeal
Addition—Addition on account of capitalization of brand development expenditure—Deletion
of addition—AO stated that since assessee himself identified amount of Brand Development
and its corresponding figures i.e. Rs.7,38,893/ and entry benefit of a long lasting nature
needed to be capitalized—AO held that same being intangible assets depreciation of Rs.25%
was being allowed and balance amount of Rs.5,54,170/ was disallowed and added back to
total income of assessee—AO made addition on account of capitalization of brand
development expenditure and same was deleted by CIT(A) holding that expenses classified
as Brand Development Expenses were capital in nature—Held, apex court in case of Empire
Jute Co. Ltd. and Alembic Chemical Works Co. Ltd. held that nature of advantage had to be
considered in a commercial sense and test of enduring benefit was not a certain or
conclusive test and could not be applied blindly and mechanically without regard to particular
facts and circumstances of a given case—Expression " asset or advantage of an enduring
nature" had been evolved to emphasise element of a sufficient degree of durability
appropriate to context—Idea of once for all payment and enduring benefit were not to be
treated as something akin to statutory conditions—It was not possible to agree with
Revenue that advertisement expenses incurred by assessee at time of installation of
additional machinery in existing line of business resulted in any enduring benefit, so as to be
treated as capital in nature—Revenue’s Appeal dismissed.
Held
The apex court decisions on which reliance has been placed by the Tribunal, namely, Empire Jute
Co. Ltd. [1980] 124 ITR 1 (SC) and Alembic Chemical Works Co. Ltd. [1989] 177 ITR 377 (SC)
specifically lay down that the nature of advantage has to be considered in a commercial sense and
the test of enduring benefit is not a certain or conclusive test and cannot be applied blindly and
mechanically without regard to the particular facts and circumstances of a given case. The
expression " asset or advantage of an enduring nature" has been evolved to emphasise the element
of a sufficient degree of durability appropriate to the context. The idea of once for all payment and
enduring benefit are not to be treated as something akin to statutory conditions.
(Para25.15)
Applying the aforesaid settled legal position to the facts of the case, it is not possible to agree with
the appellantRevenue that the advertisement expenses incurred by the respondentassessee at the
time of installation of additional machinery in the existing line of business resulted in any enduring
benefit, so as to be treated as capital in nature.
(Para25.16)
Cases relied on
Empire Jute Co. Ltd. [1980] 124 ITR 1 (SC)
Alembic Chemical Works Co. Ltd. [1989] 177 ITR 377 (SC)
Conclusion
Advertisement expenses incurred by assessee at time of installation of additional machinery in
existing line of business shall not result in any enduring benefit, so as to be treated as capital in
nature
In favour of
Assessee
Cases Referred to
CIT vs. G4S Securities India Pvt. Ltd. (2011) 338 ITR 46
Mahabir Cold Storage vs. CIT [1991] 188 ITR 91 (SC)
DCIT vs. CORE HEALTHCARE LTD. [2009] 308 ITR 263
CIT vs. Casio India Ltd [2011] 335 ITR 196 (Del)
CIT vs. Citi Financial Consumer Fin. Ltd. [2011] 335 ITR 29 (Del)
Deputy Commissioner of IncomeTax vs. Core Healthcare Ltd. [2009] 308 ITR 263 (Guj)
Empire Jute Co. Ltd. vs. CIT, (1980) 124 ITR 1
Counsel appeared:
T. Vasanthan, SR. DR for the Appellant: Sanjeev Sapra, FCA for the Respondent.
SUCHITRA KAMBLE, JM:
1. This appeal is filed by the Revenue against the order of CIT(A) XV, New Delhi dated 20/3/2013
for Assessment Year 200708. The ground of appeal raised herein, is as follows:
“1. Whether Ld. CIT(A) was correct on facts and circumstances of the case and in law in
deleting the addition of Rs.37,25,225/ made by the AO on capitalization of license fee
and royalty expenditure.”
2. The assessee company is engaged in business of FM Radio Broadcasting. Assessee filed return of
income declaring loss of Rs. 1,12,82,860/. The records before the Assessing Officer shows that the
assessee company had paid amount of Rs. 48,58,967/ (Rs.3,000/ License Fee, Rs. 6,08,765/ RCS
Fee, Rs. 27,19,446/ Prasar Bharati Fee and Rs. 15,27,756/ Broadcast Fee) to the Govt. of India,
Department of Telecommunication (Prasar Bharati etc.) and a royalty of Rs.1,08,000/ in
consideration for grant of licence to operate and provide the services. The assessee claims it to be
revenue expenses.
3. The Assessing Officer held that the expenditure on account of licence fee and Royalty is held to
be capital expenditure incurred for acquisition of intangible asset in form of licence which is for the
tenure of 10 to 20 yrs. And gives enduring benefit to the assessee. After allowing 25% of the
depreciation whch comes to Rs. 12,41,742/ (25% of Rs. 49,66,967/) the remaining amount of Rs.
37,25,225/ was added to the income of the assessee by the Assessing Officer.
4. The CIT(A) held that the RCS license fee is in the nature of a non exclusive and a nontransferable
right to use scheduling and broadcast software. Through this agreement, the assessee could get
only the limited right to use the software of RCS for the purpose of scheduling the assessee
company’s content on its FM Station. Thus, the nature of such license was no difference than the
license any user gets for use of any other computer software, such as the license for the use of MS
Windows, which is available to all users simultaneously without any exclusivity involved and there
is no permanent transfer of right that allows the user to transfer the right further.
5. The CIT(A) further held that in respect of the fee paid to the Prasar Bharati, the invoices raised
by the Prasar Bharati show that the payment to Prasar Bharati was to be made in terms of the
direction of the Govt. of India to private FM Broadcasters to mandatorily share the common
infrastructure facility provided by the Prasar Bharati at their UTV tower complex. The payment was
in respect of use of the common infrastructures facility, which is no different than the annual rental
for use of such facilities. Regarding the broadcast license fee, the assessee was required to pay an
annual license fee to the Government of India for operating the license issued by Government of
India in this regard. The assessee had already paid onetime entry fee for obtaining the license to
move from PhaseI to PhaseII FM Broadcasting Regime, which was capitalized
by assessee in its
books of account. After obtaining that license, the assessee is required to share the revenue in the
ratio prescribed by Government on annual which is related to gross revenue earning of assessee.
The AO did not look into the true nature of the rights and the liabilities of the assessee company in
respect of the agreement to use rights emanating from various agreements/authorization. In not a
single items of expenditure, the assessee received the entire bundle of rights on permanent basis
nor does it get the right to further transfer such rights, no enduring benefits were received by it and
the payment in respect of such agreements/athorisation was on a year to year basis, which is
linked to the gross revenue receipts of the assessee. Thus the CIT (A) granted the relief of Rs.
37,25,225/ to the assessee.
6. The Ld. DR submitted that the law has been amended as relate to Section 32(1) (ii) of the
Income Tax Act, 1961 and the case laws will not be applicable in the present case but the DR could
not distinguish the said case law.
7. The AR submitted that the jurisdictional Delhi High Court in the case of CIT Vs. G4S Securities
India Pvt. Ltd. (2011) 338 ITR 46 has held that “…..The payment of royalty was also to be on year to
year basis on the net sales of the assessee and at no point of time the assessee was entitled to
become the exclusive owner of technical knowhow and the trademark. Hence, the expenditure
incurred by the assessee as royalty is revenue expenditure and is therefore, relatable under Section
37 (1) of the Act…..” The AR further submitted that the CIT(A) has taken correct view and the
appeal of the Revenue be dismissed.
8. We have gone through all the records and perused the arguments of both the counsels. The ratio
laid down in case of G4S Securities India Pvt. Ltd. is clearly applicable in the present case. In the
case of Empire Jute Co. Ltd. v. CIT, (1980) 124 ITR 1, the Supreme Court observed that there may
be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may,
nonetheless, be on revenue account and the cost of enduring benefit may break down. What is
material to consider is the nature of the advantage in a commercial sense and it is only where the
advantage is in the capital field that the expenditure would be disallowable on an application of this
test. If the advantage consists merely in facilitating the assessee’s trading operations or enabling
the management and conduct of the assessee’s business to be carried on more effectively or more
profitably while leaving the fixed capital untouched, the expenditure would be on revenue account,
even though the advantage may endure for an indefinite future. The license fee and the royalty fee
to the Government of India is on a year to year basis and this fact was never disputed by the
Revenue at any point of time and thus the same has to be held as revenue in nature keeping in
mind the decisions of the Supreme Court as well as the Delhi High Court.
9. Thus, the appeal of the Revenue is dismissed.
10. This appeal is filed by the Revenue against the order of CIT(A) XV, New Delhi dated 31/01/2013
for Assessment Year 200809. The grounds of appeal raise herein, is as follows:
“1. On the facts and circumstances of the case and in law the order of the Ld. CIT(A) is
wrong and against the provisions of law which is liable to be set aside.
2. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the
disallowance of Rs.81,29,043/ on account of fees held as capital.
3. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the
disallowance of Rs.1,08,000/ u/s 40(a)(ia) of the IT Act.
4. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the
addition of Rs.1,23,94,225/ made u/s 41 (1) of the IT Act.
11. Ground No. 1 in this year is general in nature and Ground No. 2 is already decided against the
Revenue in earlier Assessment Year 2007 2008 hereinabove. Thus Ground No. 2 is dismissed.
12. As regards Ground No. 3 of the appeal, the assessee has claimed an amount of 1,08,000/ as
royalty paid to the Government of India. The Assessing Officer has held that from perusal of details
it has been gathered that the assessee has not deducted any TDS on this payment and disallowed as
per provisions of Section 40(a)(ia) of the Income Tax Act, 1961. The CIT(A) held that payment was
made to the Government of India and therefore, the assessee was not required to deduct TDS and
action of Assessing Officer of invoking the Section 40(a)(ia) of the Income Tax Act, 1961 is
unjustified.
13. The DR relied solely on the Assessment Order and the AR submitted that annual amount payable
to DOT, Govt. of India towards royalty for wireless operation for frequency allocation and FM
broadcasting and as per Section 196 of the Act, TDS was not required to be made on interest or
dividend or other sums payable to Government of India.
14. After going through the records and arguments of both the counsels, first we have to look into
the aspect of Section 40(a)(ia) of the Act:
“Notwithstanding anything to the contrary in sections 30 to 38, the following amounts
shall not be deducted in computing the income chargeable under the head ‘profits and
gains of business or profession” –
(a) In the case of any assessee
(i)
(ia) any interest, commission or brokerage, rent, royalty fees for professional services
or fees for technical services payable to a resident, or amounts payable to a contractor
or subcontractor, being resident, for carrying out any work (including supply of labour
for carrying out any work), on which tax is deductible at source under Chapter XVIIB
and such tax has not been deducted or, after deduction, has not been paid, on or before
the due date specified in subsection (1) of section 139:
Provided
Provided further
Explanation: ”
In this particular case Section 40(a)(ia) of the Act will not be applicable as the royalty
was payable to the Government of India. Thus TDS was not deducted by the assessee.
As per Section 196 which is as follows:
“196. Interest or dividend or other sums payable to Government, Reserve Bank or
certain corporations. Notwithstanding anything contained in the foregoing provisions of
this Chapter, no deduction of tax shall be made by any person from any sums payable to
—
(i) the Government, or
(ii) the Reserve Bank of India, or
(iii) a corporation established by or under a Central Act which is, under any law for the
time being in force, exempt from incometax on its income, or
(iv) a Mutual Fund specified under clause (23D) of section 10, where such sum is
payable to it by way of interest or dividend in respect of any securities or shares owned
by it or in which it has full beneficial interest, or any other income accruing or arising to
it.”
As per Section 196 of the Act, no deduction of tax shall be made by any person from any sums
payable to government. In this regard the AO has overlooked the provisions of Section 196 of the
Act and CIT(A) has rightly allowed the deduction to the assessee in this regard.
The ground No. 3 of the Revenue’s appeal is dismissed.
15. Now coming to Ground No. 4 of the appeal. As per the assessing officer, the assessee is in
constant agreement with M/s Airtime Marketing & Sales India Pvt. Ltd. (AMSIPL). As per the said
agreement it has been observed that M/s AMSIPL is responsible for generation of revenue for the
assessee. The assessee has thus agreed to pay to this consultant 15% of net revenue or
$2,50,000/ plus 74% of the net profit arisen to the assessee. As per clause 6 and Schedule to the
agreement, all the business operation has to be conducted by M/s AMSIPL and even the account has
to be maintained by M/s AMSIPL. In addition to this M/s AMSIPL is providing various services,
equipments, assets to the assessee company for which it is charging from the assessee. These
expenses includes 1)Transmitter site maintenance –Rs. 6,00,000/; Lease finance charges
Rs.9,07,488/; Retainer ship Fee Rs.6,40,000/; Consultancy Fee: Rs.68,45,155/ Studio
maintenance & Studio Permission Charges Rs. 8,92,811/ (Totaling 98,85,454/). In addition to this
the assessee has to pay the actual cost incurred by M/s AMSIPL ., for conducting the operation on
behalf of assessee. This agreement with M/s AMSIPL has resulted into Sundry Creditor of Rs.
5,41,27,375/ (Payable to M/s AMSIPL). The unique feature of the agreement was that M/s AMSIPL
is sole responsible for generating the revenue like bringing the advertisement to the assessee,
convincing customers etc. on behalf of assessee and for that M/s AMSIPL is charging from the
assessee. Since M/s AMSIPL is not able to generate the revenue for the assessee, he is not
claiming/forcing the assessee to pay the outstanding debt. In the light of these facts the assessee
was asked to submit the year wise break up of outstanding liability. The details submitted by the
assessee shows that the liability before 1/4/2004 payable to M/s AMSIPL was Rs.1,23,94,225/ and
the same increased to Rs.5,41,27,375/. As per the Assessing Officer, the assessee has not paid
these liabilities in line to the agreement with M/s AMSIPL, under which M/s AMSIPL is to bring
revenue to the assessee on a profit sharing basis and the assessee has to pay the expenses
incurred by M/s AMSIPL in case positive revenue generation. Since the second condition was not
fulfilled, the first condition will not be satisfied, meaning thereby that the assessee has not to pay
the liability to M/s AMSIPL if he has failed to generate the revenue for the assessee. Further the
outstanding liabilities are clearly bared by limitation, since more than three years has been lapsed
and the creditor in not claiming its debt which clearly point out the fact that the liability to the
assessee has ceases to exit as per provision of SESction 41(1) of the I. T Act.
16. The CIT(A) held that the Assessing Officer disregarded the confirmation made by the party
which was furnished before him on the ground that the said party shall not be able to legally
enforce the liability in terms of law of limitation. The CIT(A) further held that the agreement does
not prescribed any time limit beyond which the assessee will be free from discharging the liability
to the said party and therefore, it is not correct to assume that such liability has ceased to exist.
The liability exists in the books of account of both the debtor and creditor which implies that it
exists in view of Limitation Act, 1963 as parties have confirmed the same.
17. The DR solely relied upon the Assessing Officers order in this particular case.
18. The AR submitted that the copy of consultancy agreement dated 21/7/2006 with M/s Airtime
Marketing and Sales India Pvt. Ltd. Stated that the assessee was contractually liable to pay
consultancy fee AMSIPL for various services as received by it from AMSIPL the amount was
contractually and legally payable in full to AMSIPL by the assessee and hence Section 41 (1) could
not be invoked. The assessee filed details of amount payable against services to AMSIPL shows that
it is a moving balance and as on 1/4/2004 total amount of Rs.1,23,94,225/ was payable while as on
31st March 2008 Rs.5,41,27,375/ was payable to them by the assessee against various services as
taken.
19. We have gone through the records and perused the arguments of both the counsels. The
assessee has given the details for last 3 years and it can be seen that the treatment of credit
balance in respect of AMSIPL amounting to Rs.1,23,94,225/ held as seized liability that was made
chargeable to tax u/s 41(1) was outstanding in the assessee’s books in respect of liabilities incurred
before 1/4/2004. The AO passed his assessment order on the detail furnished by the assessee
including the agreement with AMSIPL and was of the view that the assessee shall not be able to
discharge the said liability until and unless such party in terms of the agreement brings revenue for
the assessee in such manner that profit arises from the operation when such party could be paid its
dues . It was informed by the AR that since profits were not generated the company could not pay
to the creditor and creditor could also not enforce the payment of date till profits and generated.
However, the agreement does not prescribe any time limit beyond which the appellant will be free
from discharge the liability to the said party and, therefore, it is not correct to assume that such
liability has seized to exist. Such liability remained unpaid does not amply that it has seized to exist
in view of Limitation Act 1963. The aforesaid liability exist in the books of accounts of both the
debtor and the creditor. The Hon’ble Supreme Court in case of Mahabir Cold Storage Vs. CIT [1991]
188 ITR 91 (SC) held that the entries in the books of account of the assessee would amount to an
acknowledgment of the liability within the meaning of section 18 of the Limitation Act, 1963, and
extend the period of limitation for the discharge of the liability as debt. Thus, the CIT(A) has rightly
deleted this addition.
20. In result, the Ground No. 4 of the Revenue’s appeal is dismissed.
I.T.A NO. 3689/DEL/2013
(ASSESSMENT YEAR 200910)
21. This appeal is filed by the Revenue against the order of CIT(A) XV, New Delhi dated 28/03/2013
for Assessment Year 200910.. The grounds of appeal raise herein, is as follows:
“1. Whether Ld. CIT(A) was correct on facts and circumstances of the case and in law in
deleting the addition of Rs.38,15,742/ made by the AO on capitalization of license fee
and royalty expenditure?
2. Whether Ld. CIT(A) was correct on facts and circumstances of the case and in law in
deleting the addition of Rs.5,54,170/ made by the AO on capitalization of brand
development expenditure?
22. Ground No. 1 is already decided against the Revenue in earlier Assessment Year 20072008
hereinabove. Thus Ground No. 1 is dismissed.
23. In respect of Ground No. 2, the assessing Officer stated that since the assessee has himself
identified the amount of Brand Development and its corresponding figures i.e. Rs.7,38,893/ which
gives the assessee and entry benefit of a long lasting nature the same needs to be capitalize. The
same being intangible assets depreciation of Rs.25% is being allowed and the balance amount of
Rs.5,54,170/ is disallowance and added back to the total income of the assessee but for this there
was no reason given by the Assessing Officer by deciding this issue. The CIT(A) held that relating to
disallowance its advertisement expenses of Rs. 5,54,170/. The expenses classified as Brand
Development Expenses and the same are capital in nature. The CIT(A) has taken into account the
decision of the Hon’ble Gujrat High Court in the case of DCIT Vs. CORE HEALTHCARE LTD. [2009]
308 ITR 263
24. The DR relied upon the Assessment Order and the AR relied upon the CIT(A)’s order.
25. We have perused the records and submissions made by both the counsels and come to the
conclusion that even that the assessee made for classified part of advertisement as Brand
Development Expenses the real nature is no more than a normal advertisement expenses as it
includes expenses on hoardings, pamphlets, advertisement behind buses expenses relating to
promotional events etc. The Hon’ble Delhi High Court in the case of CIT Vs. Casio India Ltd [2011]
335 ITR 196 (Del) and CIT Vs. CITI FINANCIAL CONSUMER FIN. LTD. [2011] 335 ITR 29 (Del) hold
that the expenditure on publicity and advertisement is to be treated as Revenue in nature allowable
fully in the year in which it was incurred. The assessee’s case is squarely covered by these
judgments as well as the judgment of Gujrat High Court in case of DEPUTY COMMISSIONER OF
INCOMETAX v. CORE HEALTHCARE LTD. [2009] 308 ITR 263 (Guj) which held as under:
“14. In relation to the first item, namely, advertisement expenses, it is not in dispute
that the expenditure of Rs. 70 lakhs and odd was incurred on a special advertisement
campaign. However, that by itself would not be sufficient to determine as to whether
the expenditure in question is on revenue account or capital account. The approach of
the Commissioner (Appeals) that the expenditure in question was treated as deferred
revenue expenditure and hence was capital in nature, cannot be termed to be a correct
approach because in so far as the Incometax Act is concerned, there is no such
category of deferred revenue expenditure. Similarly, making of an entry or absence of
an entry does not determine the allowability or otherwise of the item of expenditure and
the same cannot be considered to be a factor adverse, if the expenditure is otherwise of
allowable nature. Every expenditure incurred by a business concern, if incurred for the
purposes of business, is bound to result in some benefit, direct or indirect, immediate or
after some time, but the benefit to the business cannot be termed capital or revenue
only on the basis of the period for which the benefit is derived by the business. Any
benefit resulting to a business need not be confined to the year of expenditure and this
is an ordinary incident of a running business. In the case before the Allahabad High
Court in Hindustan Commercial Bank Ltd., In re [1952] 21 ITR 353, the expenditure on
advertisement had been incurred at the point of time when new branches of the bank
had to be opened and inaugurated. It has been held by the Allahabad High Court that
there is no proposition that the amount spent in a special campaign of advertisement
must necessarily be capital expenditure.
15. The apex court decisions on which reliance has been placed by the Tribunal, namely,
Empire Jute Co. Ltd. [1980] 124 ITR 1 (SC) and Alembic Chemical Works Co. Ltd. [1989]
177 ITR 377 (SC) specifically lay down that the nature of advantage has to be considered
in a commercial sense and the test of enduring benefit is not a certain or conclusive test
and cannot be applied blindly and mechanically without regard to the particular facts and
circumstances of a given case. The expression " asset or advantage of an enduring
nature" has been evolved to emphasise the element of a sufficient
degree of durability
appropriate to the context. The idea of once for all payment and enduring benefit are not
to be treated as something akin to statutory conditions.
16. Applying the aforesaid settled legal position to the facts of the case, it is not possible
to agree with the appellantRevenue that the advertisement expenses incurred by the
respondentassessee at the time of installation of additional machinery in the existing
line of business resulted in any enduring benefit, so as to be treated as capital in nature.
17. Question No. 1 is, therefore, answered in the affirmative, namely, advertisement
expenses incurred by the assessee to create brand image is allowable as revenue
expenditure.”
26. In view of the above Ground No. 2 of the Revenue is dismissed
27. In the result, all the three appeals of the Revenue are dismissed.
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