DCIT, CHENNAI V. Accel Frontline Limited, CHENNAI

ITA 1581/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4738 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 26-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 30-05-2016
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: V S MANOJ
• Keywords: Capital asset; Depreciation; Earning of tax free income; Proportionate interest; Wholly owned subsidiary; Corroborative evidences; Commercial expediency; Revenue expenditure
• Section: 14A; 32

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I T.A. NO. 1581/MDS/2016 / ASSESSMENT YEAR :2011 - 12 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1 ( 1 ), CHENNAI 600 0 34. VS. M/S. ACCEL FRONTLINE LIMITED, 75, ACCEL HOUSE, NELSON MANICKAM ROA D, AMINJIKARAI, CHENNAI 600 029. [PAN: AA A C A5622M ] ( / APPELLANT ) ( / RESPONDENT ) I.T.A.NO S . 1440 AND 1441/MDS/2016 ASSESSMENT YEAR :2011 - 12 M/S. ACCEL FRONTLINE LIMITED, 75, ACCEL HOUSE, NELSON MANICKAM ROAD, AMINJIKARAI, CHENNAI 600 029. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(1), CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) DEPARTMENT BY : SHRI A.V. SREEKANTH, JCIT ASSESSEE BY : V.S. MANOJ, ADVOCATE / DATE OF HEARING : 26 . 04 .201 7 / DATE OF P RONOUNCEMENT : 28 .04 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH E S E CROSS APPEAL S FILED BY THE REVENUE AS WELL AS ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) I.T.A. NOS. 1581, 1440 & 1441 /M/16 2 1 , C HENNAI DATED 1 9 . 0 2 .201 6 RELEVANT TO THE ASSESSMENT YEAR 20 11 - 1 2 . THE ASSESSEE HAS ALSO FILED ANOTHER APPEAL FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE FIRST GROUND RAISED IN THE APPEAL OF THE REVENUE IS THAT THE LD. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE MADE UNDER SECTION 14A OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] R.W. RULE 8D OF IT RULES. 2.1 THE FACTS OF THE CASE ARE THAT FROM THE SCHEDULE 6 ANNEXED AND FORMING PART OF BALAN CE SHEET, THE ASSESSING OFFICER HAS NOTICED THAT THE ASSESSEE HAS SHOWN INVESTMENTS WHICH ARE CAPABLE OF EARNING EXEMPT INCOME IN THE FORM OF DIVIDEND. THE INVESTMENT AS ON 31.03.2011 WAS SHOWN AT .6,23,97,440/ - AND THE INVESTMENT AS ON 31.03.2012 WAS .6 ,10,40,765/ - . THEREFORE, THERE WAS FURTHER INVESTMENT OF .13,56,675/ - DURING THE FINANCIAL YEAR 2010 - 11. HOWEVER, THE ASSESSEE COMPANY HAS NOT SHOWN ANY DISALLOWANCE OR EXPENDITURE UNDER SECTION 14A OF THE ACT IN THE COMPUTATION OF INCOME FOR THE YEAR END ED 31.03.2011. WHEN SHOW - CAUSED AS TO WHY EXPENDITURE SHOULD NOT BE DISALLOWED, THE AR OF THE ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE TO EARN EXEMPTED INCOME. IT WAS ALSO SUBMITTED THAT THERE W AS NO RECEIPT OF DIVIDEND INCOME FOR THE YEAR AND THE COMPANY HAS NOT USED ANY BORROWED FUNDS FOR THE INVESTMENTS. HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE SUBMISSIONS OF THE AR AND BY FOLLOWING VARIOUS DECISIONS, I.T.A. NOS. 1581, 1440 & 1441 /M/16 3 THE ASSESSING OFFICER DETERMINE D THE EXPENDITURE COMPONENT BY APPLYING THE PROVISIONS OF SECTION 14A R.W. RULE 8D AND DISALLOWED .18,50,448/ - . 2.2 THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND BY FOLLOWING VARIOU S DECISIONS INCLUDING THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. M. BASKARAN IN ITA NO. 1717/MDS/2013 DATED 31.07.2014, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION. 2.3 ON BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. DR HAS SUBMITTED THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. M. BASKARAN (SUPRA) AND AN APPEAL IN THIS REGARD IS PENDING BEFORE HIGHER FORUM. THUS, HE PLEADED THAT THE ORDER OF THE LD. CIT(A) S HOULD BE REVERSED. 2.4 PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. M. BASKARAN (SUPRA) AND IN THE CASE OF EIH ASSOCIATED HOT ELS LTD. V. DCIT IN I.T.A. NOS. 1503 & 1624/MDS/2012 DATED 17.07.2013. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE RECENT JUDGEMENT OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JUDGEMENT IN THE CASE OF REDINGTON (INDIA) LTD. V. ADDL. CIT IN T.C.A. NO. 520 OF 2016 DATED 23.12.2016, WHEREIN, THE HON BLE JURISDICTIONAL HIGH I.T.A. NOS. 1581, 1440 & 1441 /M/16 4 COURT HAS HELD THAT WHEN THERE IS NO EXEMPT INCOME THERE CANNOT BE A DISALLOWANCE OF EXPENDITURE. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE HAS PLEADED THA T THE ORDER OF THE LD. CIT(A) SHOULD BE SUSTAINED. 2.5 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, IN THIS CASE, THE ASSESSEE HAS NOT EARNED ANY DIVIDEND INCOME IN THE YEAR UNDER CONSIDERATION AND MOREOVER NO EXPENDITURE WAS INCURRED. IT WAS ALSO NOT DISPUTED BY THE DEPARTMENT THAT THE ASSESSEE HAS NOT MADE INVESTMENT IN WHOLLY OWNED SUBSIDIARIES. WHEN THE ASSESSEE HAS MADE INVESTMENTS IN ITS OWN SUBSIDIARIES, IT WAS THE SUBMISSIO N OF THE LD. COUNSEL FOR THE ASSESSEE THAT INVESTMENT IN SUBSIDIARIES WAS OUT OF COMMERCIAL EXPEDIENCY AND HENCE NO EXPENDITURE CAN BE DETERMINED AND DISALLOWED IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF EIH ASSOCIATED HOTELS LTD. V. DCIT (SUPR A). WE HAVE PERUSED THE ABOVE ORDER OF THE TRIBUNAL, WHEREIN, IT WAS OBSERVED AND HELD AS UNDER: 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE RIVAL PARTIES. WE HAVE ALSO EXAMINED THE ORDERS PASSED BY THE AUTHORITIES BELOW AND THE JUDGMENTS/ORDERS CITED BY THE REPRESENTATIVES OF BOTH THE PARTIES. THE FIRST ISSUE IN THE APPEAL OF THE ASSESSEE RELATES TO DISALLOWANCE MADE U/S. 14A R.W.R. 8D. THE ASSESSING OFFICER HAS MADE DISALLOWANCE TO THE TUNE OF RS. 4,32,66,500/ - . THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS. 4.6 LAKHS WHICH IS FULLY EXEMPT U/S. 10(34) OF THE ACT. THE ASSESSEE HAS MADE VOLUNTARILY DISALLOWANCE OF RS. 45,927/ - U/S. 14A. THE ASSESSEE HAS MADE FRESH INVESTMENTS TO THE TUNE OF RS. 9.4 CRORES DURING THE YEAR. THE ASSESSING OFFICER HELD THAT THE INVESTMENTS HAVE BEEN MADE FROM THE FRESH SECURED LOANS OBTAINED DURING THE YEAR BY THE ASSESSEE. THE CIT(APPEALS) AFTER GOING THROUGH THE SUBMISSIONS MADE BY THE PARTIES HAS COME TO THE CONCLUSION THAT THE ASSESS EE HAS MADE INVESTMENTS FROM ITS OWN I.T.A. NOS. 1581, 1440 & 1441 /M/16 5 FUNDS EXCEPT FOR THE SHORT TERM INVESTMENTS MADE IN HDFC CASH MANAGEMENT FUND AND DSPML CASH PLUS FUND IN RESPECT OF WHICH THE AMOUNTS WERE INVESTED FROM INTEREST BEARING FUNDS BORROWED FROM HBSC. THE REVENUE HAS NOT BE EN ABLE TO CONTROVERT THE FINDINGS OF CIT(APPEALS). WE ARE OF THE CONSIDERED OPINION THAT THE INVESTMENTS MADE BY THE ASSESSEE IN THE SUBSIDIARY COMPANY ARE NOT ON ACCOUNT OF INVESTMENT FOR EARNING CAPITAL GAINS OR DIVIDEND INCOME. SUCH INVESTMENTS HAVE BEEN MADE BY THE ASSESSEE TO PROMOTE SUBSIDIARY COMPANY INTO THE HOTEL INDUSTRY. A PERUSAL OF THE ORDER OF THE CIT(APPEALS) SHOWS THAT OUT OF TOTAL INVESTMENT OF RS. 64,18,19,775/ - , RS. 63,31,25,715/ - IS INVESTED IN WHOLLY OWNED SUBSIDIARY. THIS FACT SUPPO RTS THE CASE OF THE ASSESSEE THAT THE ASSESSEE IS NOT INTO THE BUSINESS OF INVESTMENT AND THE INVESTMENTS MADE BY THE ASSESSEE ARE ON ACCOUNT OF BUSINESS EXPEDIENCY. ANY DIVIDEND EARNED BY THE ASSESSEE FROM INVESTMENT IN SUBSIDIARY COMPANY IS PURELY INCIDE NTAL. THEREFORE, THE INVESTMENT MADE BY THE ASSESSEE IN ITS SUBSIDIARY ARE NOT TO BE RECKONED FOR DISALLOWANCE U/S. 14A R.W.R. 8D. THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE AVERAGE VALUE OF INVESTMENT UNDER THE PROVISIONS OF RULE 8D AFTER DELETING INVESTMENTS MADE BY THE ASSESSEE IN SUBSIDIARY COMPANY. ACCORDINGLY, THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. THE FINDINGS OF THE CIT(APPEALS) ON THE ISSUE ARE ACCORDINGLY MODIFIED. 2.6 FURTHER, IN T HE CASE OF REDINGTON (INDIA) LTD. V. ADDL. CIT (SUPRA), THE HON BLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: 15. THE EXEMPTION EXTENDED TO DIVIDEND INCOME WOULD RELATE ONLY TO THE PREVIOUS YEAR WHEN THE INCOME WAS EARNED AND NONE OTHER AND CONSEQUENT LY THE EXPENDITURE INCURRED IN CONNECTION THEREWITH SHOULD ALSO BE DEALT WITH IN THE SAME PREVIOUS YEAR. THUS, BY APPLICATION OF THE MATCHING CONCEPT, IN A YEAR WHERE THERE IS NO EXEMPT INCOME, THERE CANNOT BE A DISALLOWANCE OF EXPENDITURE IN RELATION TO S UCH ASSUMED INCOME. (MADRAS INDUSTRIAL INVESTMENT CORPORATION LTD. V. CIT (225 ITR 802). THE LANGUAGE OF S. 14A(1) SHOULD BE READ IN THAT CONTEXT AND SUCH THAT IT ADVANCES THE SCHEME OF THE ACT RATHER THAN DISTORT IT. 16. IN CONCLUSION, WE ARE OF THE VIE W THAT THE PROVISIONS OF S. 14A READ WITH RULE 8D OF THE RULES CANNOT BE MADE APPLICABLE IN A VACUUM I.E., IN THE ABSENCE OF EXEMPT INCOME. THE QUESTIONS OF LAW ARE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT AND THE APPEAL ALLOWED. NO CO STS. I.T.A. NOS. 1581, 1440 & 1441 /M/16 6 2.7 IN VIEW OF THE ABOVE DECISIONS, WE DO NOT FIND ANY FLAW IN THE ORDER PASSED BY THE LD. CIT(A) AND ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 3. THE NEXT GROUND RAISED IN THE APPEAL OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN ALLOWING THE PRELIMINARY EXPENSES UNDER SECTION 35D OF THE ACT. 3.1 T HE ASSESSEE HAS CLAIMED OF 1/5 TH OF THE IP O EXPENSES U NDER SECTION 35 D OF THE ACT AND THE ASSESSEE HAS BEEN CLAIMING SUCH EXPENSES IN EARLIER ASSESSMENT YEAR 2007 - 08, 2008 - 09, 2009 - 1 0 AND 2010 - 11. IN THE ASSESSMENT ORDER, BY FOLLOWING THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2010 - 11 AND SINCE THE ASSESSEE HAS NOT PRODUCED ANY OTHER EVIDENCE TO SUBSTANTIATE THE CLAIM UNDER SECTION 35D OF THE ACT, THE ASSESSING OFFICER DISALLOWED . 1,00,28,477/ - AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3.2 ON APPEAL, BY FOLLOWING EARLIER APPELLATE ORDER, WHEREIN, THE ASSESSEE S CLAIM WAS RESTRICTED AND PARTLY ALLOWED, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASS ESSEE UNDER SECTION 35D(2)(C)(IV) OF THE ACT. 3.3 ON BEING AGGRIEVED, THE REVENUE IS IN APPEAL. THE LD. DR HAS SUBMITTED THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE REVENUE BY THE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS I.T.A. NOS. 1581, 1440 & 1441 /M/16 7 AND PLEADED THAT THE SAME SHALL BE FOLLOWED FOR ASSESSMENT YEAR UNDER CONSIDERATION. 3.4 ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDERS OF LD. CIT(A). 3.5 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECOR D AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, SINCE THE ASSESSEE COULD NOT PRODUCE ANY OTHER EVIDENCE TO SUBSTANTIATE THE CLAIM UNDER SECTION 35D OF THE ACT, BY FOLLOWING THE EARLIER ASSESSMENT ORDER, THE ASSESSING OFFICER MADE THE DISA LLOWANCE. ON APPEAL, THE LD. CIT(A) HAS OBSERVED AND HELD AS UNDER: 11. I HAVE CAREFULLY CONSIDERED THE FACTS IN ISSUE, THE REASONS BASED ON WHICH THE AO HAS PREFERRED THE DISALLOWANCE/ADDITION, THE ARGUMENTS ADVANCED BY THE APPELLANT AND MATERIAL ON REC ORD. IN PARA 5 THE ID.CIT(A) HAS UPHELD THE CLAIM OF DEDUCTION U/S 35D AFTER RESTRICTING THE SAME AS IN PARA 5.2.5 OF THE ORDER AND PARTLY ALLOWING THE CLAIM. THE FACTS REMAINING THE SAME I FIND NO REASON TO TAKE A VIEW DIFFERENT THAN THE ONE TAKEN BY THE ID.CIT(A). THE AO IS DIRECTED TO ALLOW THE CLAIM U/S 35D(2)(C)(IV) AS HELD BY THE CIT(A) AND MADE BY THE APPELLANT. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 3.6 WE HAVE ALSO PERUSED THE ORDER OF THE COORDINATE BENCHES OF THE TRIBUNAL IN ASSESSEE S OWN CA SE IN I.T.A. NO. 2780 TO 2782/MDS/2014 & 1276/MDS/2015 FOR THE ASSESSMENT YEARS 2007 - 08 TO 2010 - 11 DATED 27.11.2015 PREFERRED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A), WHEREIN, THE TRIBUNAL HAS OBSERVED AND HELD AS UNDER: I.T.A. NOS. 1581, 1440 & 1441 /M/16 8 12. THE NEXT COMMON G ROUND FOR THE ASSESSMENT YEARS 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11 BOTH, IN ASSESSEE S APPEALS AS WELL AS REVENUE S APPEALS IS WITH REGARD TO ALLOWANCE OF EXPENDITURE IN RESPECT OF PRELIMINARY EXPENSES U/S.35D OF THE ACT. 13. THE FACTS OF THE ISSUE AS NARRATED FOR THE ASSESSMENT YEAR 2007 - 08 ARE THAT THE AO OBSERVED THAT THE ASSESSEE HAD CLAIMED AN AMOUNT OF . 1,00,28,477/ - AS DEDUCTION U/S.35D FOR THE YEAR IN RESPECT OF EXPENSES INCURRED IN CONNECTION WITH THE INITIAL PUBLIC OFFER (IPO). THE AO DISALLOWED THE ABOVE SUM CLAIMED BY THE ASSESSEE BY FOLLOWING THE DIRECTIONS GIVEN BY THE ADDL. CIT IN HIS ORDER U/ S.144A. THE ADDL. CIT IN HIS ORDER U/S.144A HAS DIRECTED THE AO TO DISALLOW THE EXPENDITURE CLAIMED BY THE ASSESSEE, SINCE THE EXPENDITURE IS NOT RELATED TO THE EXTENSION OF ITS OWN UNDERTAKING OR FOR SETTING UP OF A NEW UNIT AS STATED U/S.35D(1)(II). IT WAS OBSERVED THAT THE AMOUNT UTILIZED WAS FOR ACQUISITION OF AN ALREADY EXISTING UNDERTAKING M/S. TELESYS GLOBAL SOLUTIONS LTD. (TGSL). THE ADDL. CIT HAS ALSO OBSERVED THAT THE EXPANSION OF THE INDUSTRIAL UNIT WAS NOT COMPLETE, SINCE MORE THAN 50% OF T HE PROCEEDS WERE NOT UTILIZED DURING THE RELEVANT YEAR. ACCORDING TO THE ADDL. CIT, THE CLAIM WAS NOT WITHIN THE MEANING OF SEC.35D. AGAINST THIS, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(APPEALS). 14. ON APPEAL, THE COMMISSIONER OF INCOME - TAX(APPEALS) OBSERVED THAT FOR AMORTISATION OF EXPENDITURE U/S 35D CERTAIN CONDITIONS ARE TO BE FULFILLED. THE PROVISIONS OF S.35D(1)(II) STIPULATE THAT THE EXPENDITURE TO BE ALLOWED FOR AMORTIZATION IS IN CONNECTION WITH THE 'EXTENSION' OF ITS (INDUSTRIAL) UNDERTAKIN G OR IN CONNECTION WITH ITS 'SETTING UP OF A NEW (INDUSTRIAL) UNIT'. AS PER S.35D(2)(C)(IV), THE EXPENDITURE TO BE ALLOWED IS (I) UNDERWRITING COMMISSION, (II) BROKERAGE AND (III) CHARGES FOR DRAFTING, TYPING, PRINTING AND ADVERTISEMENT OF THE PROSPECTUS. THE CIT(APPEALS) FURTHER OBSERVED THAT THE AO HAS DENIED THE ISSUE EXPENSES SINCE THE ASSESSEE HAS NEITHER FULFILLED PROVISIONS OF S.35D(1)(II) NOR PROVISIONS OF S. 35D(2)(C)(IV). WITH REGARD TO PROVISIONS OF S.35D(1)(II) THE PRELIMINARY ISSUE EXPENSES WIL L BE ALLOWED FOR AMORTISATION IF THE ASSESSEE HAS GONE ON PUBLIC ISSUE AFTER THE COMMENCEMENT OF THE BUSINESS IN CONNECTION WITH 'EXTENSION OF ITS (INDUSTRIAL) UNDERTAKING' OR IN CONNECTION WITH ITS 'SETTING UP A NEW (INDUSTRIAL) UNIT'. THE AO HAS DENIED T HE BENEFIT, SINCE THE ASSESSEE HAS UTILISED THE MONIES FOR TAKING AN ON - GOING CONCERN TGSL WHICH DOES NOT FULFIL THE CONDITION 'EXTENSION' USED IN THE SEC.35D(1)(II) EVEN THOUGH IT HAS EXPANDED ITS EXISTING BUSINESS. ACCORDING TO THE CIT(APPEALS) THE ADDL. CIT HAS ALSO OBSERVED THAT OUT OF THE ISSUE PROCEEDS .19.71 CRORES WERE UNUTILISED DURING THE YEAR AND BALANCE WAS UTILISED ONLY IN THE NEXT TWO YEARS. 14.1 THE CIT(APPEALS) OBSERVED THAT WITH REGARD TO THE FUNDS NOT UTILISED DURING THE RELEVANT YEAR B Y THE ASSESSEE, IT WAS SUBMITTED THAT THE EXPANSION WAS COMPLETE IN THE RELEVANT YEAR ITSELF AND THE NEW UNIT ACQUIRED HAD ALSO COMMENCED ITS OPERATION AND GENERATED INCOME FROM THE SAME EXPANDED UNIT I.T.A. NOS. 1581, 1440 & 1441 /M/16 9 WHICH WAS OFFERED TO TAXATION. IT WAS ALSO SUBMITTED TH AT SINCE THE ASSESSEE HAS PUT TO USE THE APPLICATION SOFTWARE ACQUIRED FROM TGSL IT HAS CLAIMED DEPRECIATION OF .16.19 CRORES DURING THE YEAR. IT WAS FURTHER SUBMITTED BEFORE THE CIT(APPEALS) THAT THE UTILISATION OF FUNDS WHICH WERE EARMARKED FOR WORKING CAPITAL WERE AS PER THE ISSUE DOCUMENT ITSELF. ACCORDING TO THE CIT(APPEALS), THE EXPLANATION GIVEN BY THE ASSES SEE WITH REGARD TO UTILISATION OF FUNDS IS REASONABLE. 14.2 FURTHER, THE CIT(APPEALS) OBSERVED THAT WITH REGARD TO APPLICATION OF S.35D(1)(II), SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE JURISDICTIONAL HIGH COURT IN THE CASE OF ASHOK LEYLAND T.C. (APPEAL) NO.1253, 1254 AND 1256 OF 2005 DATED 20.6.2012, WHERE MEANING OF 'EXPANSION' AND 'EXTENSION' WAS ANSWERED IN FAVOUR OF THE ASSESSEE. THE QUESTION RAISED BEFORE THE HIGH COURT IN THE ABOVE CASE IS AS UNDER: WHETHER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN EQUATING A PROPOSAL TO 'EXPAND' THE CAPACITY OF PRODUCTION WITH 'EXTENSION' OF INDUSTRIAL UNDERTAKING UNDER SECTION 35D OF THE INCOME TAX ACT? THE HIGH COURT HAS DECIDED THAT EXPANSION AND EXTENSION MEAN THE SAME. ACCORDING TO THE CIT(APPEALS), IN THE INSTANT CASE, TAKING OF BUSINESS ACTIVITY OF TGSL IS CONSIDERED AS EXTENSION OF BUSINESS BY THE ASSESSEE WITHIN THE MEANING OF S.35D(1)(II). 14.3 WITH REGARD TO PROVISIONS OF S.35D(2)(C)(IV), THE CIT (APPEALS) OBSER VED THAT THE EXPENSES PERMISSIBLE FOR AMORTISATION AR E AS UNDER : (I) UNDERWRITING COMMISSION. (II) BROKERAGE AND (III) CHARGES FOR DRAFTING, TYPING, PRINTING AND ADVERTISEMENT OF THE PROSPECTUS. AS AGAINST THIS, THE EXPENDITURE INCURRED BY THE APPELLANT IS AS UNDER: ADVERTISEMENT EXPENSES 2,35,16,432 AUDIT EXPENSES 4,94,924 ISSUE MANAGEMENT FEES 1,68,78,853 LEGAL EXPENSES 24,81,523 OTHER FEES & EXPENSES 32,60,408 PRINTING CHARGES 1,97,46,544 TRAVEL EXPENSES 7,61,913 ------- ----------- TOTAL 6,71,40,597 =========== I.T.A. NOS. 1581, 1440 & 1441 /M/16 10 ACCORDING TO THE CIT (APPEALS), PRIMA FACIE ONLY ADVERTISEMENT EXPENSES AND PRINTING CHARGES ARE FITTING INTO THE NATURE OF EXPENDITURE MENTIONED IN T HE PROVISIONS OF S.35D(2)(C)(IV). HE OBSERVED THAT SIMILAR ISSUE HAS COME UP FOR DISCUSSION BEFORE THE JURISDICTIONAL HIGH COURT IN THE CASE OF ASHOK LEYLAND LTD (SUPRA), WHEREIN IT WAS ASKED WHETHER THE WORD 'BEING' USED IN THE PROVISIONS OF S.35D(2)(C)(I V) CONNOTE THE MEANING 'LIKE'. THE HIGH COURT HAS DECIDED THE ISSUE AGAINST THE ASSESSEE. THE EXACT QUESTION RAISED BEFORE THE HIGH COURT IN THE ABOVE REFERRED CASE IS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL IS R IGHT IN LAW IN HOLDING THAT THE WORD 'BEING' AS USED IN SECTION 35D(2)(C)(IV) IS NOT 'ILLUSTRATIVE' BUT ONLY 'RESTRICTED' TO? ACCORDING TO THE CIT(APPEALS), FOLLOWING THE ABOVE DECISION OF THE JURISDICTIONAL HIGH COURT, THE MEANING OF 'BEING' WILL BE TAK EN AS 'RESTRICTIVE' AND NOT 'ILLUSTRATIVE'. 14.4 FURTHER, THE CIT(APPEALS) OBSERVED THAT WITH REGARD TO ISSUE MANAGEMENT FEE SHOWN AS EXPENDITURE BY THE ASSESSEE, THE ADDL. CIT HELD THAT IT IS NOT FITTING INTO THE PERMISSIBLE EXPENDITURE MENTIONED IN S .35D(2)(C)(IV). THE ASSESSEE HAS OBJECTED FOR THE 'SAME STATING THAT ISSUE MANAGEMENT FEE IS NOTHING BUT UNDERWRITING COMMISSION. THE CIT(APPEALS) HAS NOT AGREED WITH THE ARGUMENT OF THE ASSESSEE AND HELD THAT AS PER THE SEBI GUIDELINES THE COMPANY WHICH IS GOING FOR PUBLIC ISSUE HAS TO ENGAGE UNDERWRITERS FOR THE GUARANTEE OF ITS ISSUE THROUGH ITS LEAD MERCHANT BANKER. THE CIT(APPEALS) FURTHER OBSERVED THAT THE ASSESSEE HAS ENTERED INTO AN AGREEMENT DATED 11.9.2006 WITH SBI CAPITAL MARKETS LTD AS LEAD MER CHANT BANKER, WHEREIN IT WAS MENTIONED THAT 2% OF THE TOTAL ISSUE SIZE IS TO BE PAID AS LEAD MANAGEMENT FEE AND 1.25% OF THE TOTAL ISSUE SIZE IS TO BE PAID AS SELLING AND MARKETING COMMISSION. SINCE THE FACTS REVEAL THAT THE COMPANY HAS GONE TO PUBLIC ISSU E, UNDERWRITING COMMISSION WILL BE PAYABLE AND WILL BECOME AN ALLOWABLE DEDUCTION U/S 35D(2)(C)(IV). HOWEVER, OUT OF 3.25% PAYABLE TO THE LEAD BANKERS, ONLY 1.25% IS 'FITTING INTO PROVISIONS OF S.35D(2)(C)(IV) IN THE FORM OF UNDERWRITING COMMISSION. 14.5 FOLLOWING THE ABOVE DECISION OF THE JURISDICTIONAL HIGH COURT, THE CIT (APPEALS) DIRECTED THE AO TO CONSIDER THE FOLLOWING EXPENSES BE ELIGIBLE FOR WORKING OF AMORTISATION U/S 35D(2)(C)(IV): (I) ADVERTISEMENT EXPENSES . 2,35,16,432 (II) PRINTING CHARGES . 1,97,46,544 (III) UNDERWRITING COMMISSION . 48,52,500 AGAINST THIS, THE ASSESSEE AS WELL AS REVENUE IS IN APPEAL. I.T.A. NOS. 1581, 1440 & 1441 /M/16 11 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. BEFORE US, THE LD. AR SUBMITTED THAT THE EXPENDITURE TO BE ALLOWED U/S.35D OF THE ACT AND PLACED DETAILED ARGUMENT AS MADE BEFORE THE CIT(APPEALS), WHICH IS KEPT ON RECORD AND ALSO SUBMITTED THAT A PORTION OF PROCEEDS OF ISSUE USED FOR THE PURPOSE OF WORKING CAPITAL AND THAT P ORTION OF EXPENDITURE RELATING TO THE PROCEEDS OF ISSUE USED FOR THE WORKING CAPITAL MAY NOT BE CONSIDERED FOR ALLOWANCE U/S.35D OF THE ACT. ON THE OTHER HAND, IT SHOULD BE CONSIDERED FOR ALLOWANCE U/S.37(1) OF THE ACT, IN VIEW OF THE JUDGMENT OF THE BOMBA Y HIGH COURT IN THE CASE OF CIT V. MAHINDRA UGINE AND STEEL CO. LTD. (250 ITR 696). HOWEVER, THE CONTENTION OF THE LD. DR IS THAT NO PART OF EXPENDITURE IS TO BE CONSIDERED FOR ALLOWANCE NEITHER U/S.35D NOR U/S.37(1) OF THE ACT, IN VIEW OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF AGROCARGO TRANSPORT LTD. VS. CIT (224 ITR 90), AS THE PROVISIONS OF SEC.35D(1) & (2) OF THE ACT ARE NOT SATISFIED. 15.1 WE HAVE ALSO GONE THROUGH THE DECISION IN THE CASE OF AGROCARGO TRANSPORT LTD. VS. CIT (S UPRA). AS OBSERVED BY THE JURISDICTIONAL HIGH COURT, IN THAT CASE, DEDUCTION U/S.35D IS NOT ALLOWABLE IN THE ABSENCE OF NECESSARY PARTICULARS TO SHOW THAT THE EXPENDITURE WAS COVERED BY SEC.35D(1) OR (2) OF THE ACT. IN THE PRESENT CASE, THE ASSESSEE MADE A N ARGUMENT THAT THE FUNDS WAS UTILIZED BY THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR THAT THE EXPANSION WAS COMPLETE IN THE RELEVANT YEAR ITSELF AND THE NEW UNIT ACQUIRED HAD ALSO COMMENCED ITS OPERATION AND GENERATED INCOME FROM THE SAME EXPENDED UN IT, WHICH WAS OFFERED TO TAXATION. HOWEVER, THERE IS NO EVIDENCE TO SUPPORT THE FINDINGS OF THE CIT(APPEALS) THAT EXPANSION OR EXTENSION WAS UNDERTAKEN BY THE ASSESSEE WITHIN THE MEANING OF SEC.35D(1)(II) OF THE ACT. THE CIT(APPEALS) DID NOT APPRECIATE THE FACTS RELATING TO APPLICABILITY OF SEC.35D(1) OR (2) BY APPLYING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF AGROCARGO TRANSPORT LTD. CITED SUPRA, WHEREIN IT WAS OBSERVED THAT ADVERTISEMENT EXPENSES, PRINTING CHARGES AND UNDERWRITING COMM ISSION WERE ELIGIBLE FOR DEDUCTION U/S.35D(2) OF THE ACT. THUS, SECTION 35D PROVIDES THAT SPECIFIED EXPENDITURE SHALL BE ENTITLED FOR AMORTIZATION ONLY IF THE EXPENDITURE WERE INCURRED BEFORE THE COMMENCEMENT OF THE BUSINESS OR AFTER THE COMMENCEMENT IN CO NNECTION WITH THE EXTENSION OF ITS BUSINESS OR IN CONNECTION WITH SETTING UP OF A NEW UNIT. 16. THE ARGUMENT OF THE ASSESSEE COMPANY IS THAT THE EXPENSES WERE INCURRED IN RAISING THE CAPITAL MONEY FOR THE EXPANSION OF ITS EXISTING BUSINESS CARRIED ON BY THE ASSESSEE COMPANY AND, THEREFORE, IT AMOUNTED TO THE EXTENSION OF ITS EXISTING BUSINESS AND AS SUCH, THE ASSESSEE IS ENTITLED FOR BENEFIT AVAILABLE U/S 35D. 17. WE CONSIDERED THIS ISSUE VERY CAREFULLY. THERE IS NO DOUBT THAT EXPENSES WERE NOT INCURRED BEFORE THE COMMENCEMENT OF THE BUSINESS. THEREFORE, THE FIRST CONDITION IS NOT COMPLIED WITH. THE SECOND CONDITION IS THAT THE EXPENSES INCURRED AFTER COMMENCEMENT OF THE BUSINESS, SHOULD BE I.T.A. NOS. 1581, 1440 & 1441 /M/16 12 INCURRED IN CONNECTION WITH EXTENSION OF ITS BUSINESS OR IN CONN ECTION WITH SETTING UP OF A NEW UNIT. THERE IS NO CASE OF SETTING UP OF A NEW UNIT. THE QUESTION IS WHETHER THERE WAS AN EXTENSION OF ITS EXISTING UNDERTAKING? A GREAT EMPHASIS HAS TO BE GIVEN ON THE EXPRESSION UNDERTAKING . BUSINESS EXPANSION AND MARKET EXPANSION OF AN EXISTING BUSINESS WILL NOT AMOUNT TO EXTENSION OF THE UNDERTAKING . THE EXPRESSION UNDERTAKING DENOTES A VISIBLE EXPENDITURE ON THE PHYSICAL FACILITIES FOR MANUFACTURE AND PRODUCTION. AN UNDERTAKING IS ALWAYS HAVING AN AREA OF PHYSICAL S TRUCTURE WHICH PRODUCES GOODS AND SERVICES BY UTILIZING THE NECESSARY FACTORS OF PRODUCTION. ENHANCEMENT OF THE GEOGRAPHICAL AREA OF MARKETING DOES NOT AMOUNT TO EXPANSION OR EXTENSION OF THE UNDERTAKING. THE EXPRESSION USED IN THE STATUTE IS EXTENSION OF ITS UNDERTAKING . IT CLEARLY MANIFESTS THAT AN APPARENT EXTENSION OR EXPANSION MUST TAKE PLACE BY ESTABLISHING NEW UNDERTAKING. THERE IS NO SUCH CASE AS FAR AS THE PRESENT CASE IS CONCERNED. THE EXPANSION IN THE PRESENT CASE IS ACQUISITION OF EXISTING UND ERTAKING. 18. THEREFORE, WE FIND THAT THE EXPENDITURE INCURRED BY THE ASSESSEE COMPANY IN CONNECTION WITH THE ISSUE OF SHARES DO NOT QUALIFY TO BE AMORTISED U/S 35D. THIS ISSUE IS ALSO DECIDED AGAINST THE ASSESSEE AND IN FAVOUR OF THE DEPARTMENT. 18.1 THE ALTERNATE PLEA OF THE ASSESSEE IS TO ALLOW THE SAME U/S.37 OF THE ACT AND THE EXPENDITURE WAS INCURRED FOR SERVICES RENDERED IN CONNECTION WITH THE ISSUE OF SHARES TO RAISE THE CAPITAL BLOCK OF THE ASSESSEE COMPANY. THE FUNDS RAISED BY A COMPANY THROU GH ISSUE OF SHARES AUTOMATICALLY INCREASES THE CAPITAL VOLUME OF THAT COMPANY. THE FUNDS RAISED BY INCREASING THE CAPITAL IN THAT MANNER MAY BE USED BY THE ASSESSEE COMPANY FOR VARIOUS PURPOSES. THE CAPITAL FUNDS MAY BE USED TO SET UP THE BUSINESS; TO PURC HASE CAPITAL ASSETS; OR TO PAY OFF LIABILITIES; OR TO AUGMENT ITS WORKING CAPITAL ETC. ONCE SHARES ARE ISSUED FOR CASH, THE ASSESSEE COMPANY GETS THE FUNDS IN ITS HANDS AND ONCE THE FUNDS HAVE COME INTO THE HANDS OF THE ASSESSEE COMPANY, THE PROCESS OF ISS UE OF SHARE CAPITAL IS COMPLETE. THEREFORE, THE SCOPE OF EXPENDITURE INCURRED FOR RAISING THE SHARE CAPITAL BY ISSUING SHARES MUST ALSO STOP AT THAT POINT. THE SCOPE SHOULD NOT BE ENLARGED FURTHER. IT IS THE WISDOM OF THE COMPANY TO DECIDE IN WHICH MANNER THE FUNDS AVAILABLE WITH IT, COLLECTED BY WAY OF ISSUE OF SHARES, SHOULD BE APPLIED. IF THE FUNDS ARE UTILIZED FOR WORKING CAPITAL REQUIREMENTS, IT IS ONLY AN APPROPRIATION OF FUNDS AVAILABLE IN THE HANDS OF THE COMPANY. RAISING THE CAPITAL AND UTILIZING T HE FUNDS ARE DIFFERENT. APPLICATION OF FUNDS DOES NOT DECIDE THE CHARACTER OF THE MONEY COLLECTED AGAINST THE ISSUE OF SHARES. MONEY COLLECTED AGAINST THE ISSUE OF SHARES ALWAYS REMAINS AS CAPITAL. THEREFORE, THE ARGUMENT OF THE LD. AR THAT THE EXPENDITURE INCURRED FOR ISSUE OF SHARES TO AND RAISE SHARE CAPITAL FOR WORKING CAPITAL REQUIREMENTS NEED TO BE ALLOWED AS REVENUE EXPENDITURE CANNOT BE ACCEPTED. ACCORDINGLY, THIS GROUND OF APPEAL OF THE ASSESSEE IS REJECTED AND THE GROUND OF APPEAL OF THE REVENUE I S ALLOWED. I.T.A. NOS. 1581, 1440 & 1441 /M/16 13 3.7 RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE COORDINATE BENCH, THE FACTS REMAINING THE SAME, WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND THE GROUND RAISED BY THE REVENUE IS ALLOWED. 4. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF PROPORTIONATE INTEREST OF .32,37,464 ON ADVANCES GIVEN TO SUBSIDIARIES. IN THE ASSESSMENT ORDER, T HE A SSESSING O FFICER HAS IDENTIFIED RELATED PARTY T RANSACTIONS IN TERMS OF LOANS AND ADVANCES MADE AND FOUND THAT THE FINANCIAL CHARGES DEBITED TO THE P ROFIT & L OSS ACCOUNT ARE TO THE EXTENT OF .6,32,92,440 / - AND SECURED LOANS IN THE BALANCE SHEET AT .9,04,565,253 / - . THE DETAILS OF THE SAME WERE CALLED FOR INCLUDING INTEREST FREE LOANS AND ADVANCES GIVEN TO SUBSIDIARIES AND GROUP COMPANIES, AS ALSO THE REASONS AS TO WHY PROPORTIONATE INTEREST UNDER SECTION 36(1)(III) OF THE ACT BE NOT DISALLOWED IN COMPUTING THE INCOME OF THE ASSESSEE . AFTER CONSIDERING THE REPLIES MADE BY THE ASSESSEE, THE A SSESSING O FFICER FOUND THAT NO EVIDENCE WHATSOEVER WAS PRODUCED TO SHOW THAT THE SUBSIDIARIES TO WHOM ADVANCES HAD BEEN MADE CATER TO THE CUSTOMERS OF THE ASSESSEE AND THAT THEIR FUNCTIONING IS INTEGRAL TO THAT OF THE ASSESSEE. SINCE, NO EVIDENCE WAS PRODUCED TO SHOW THAT THE ASSESSEE HAS OPERATED THROUGH ITS SUBSIDIARIES , THE ASSESSING OFFICER FOU ND THAT THERE WAS NO ELEMENT OF COMMERCIAL EXPEDIENCY DEMONSTRATED BY THE ASSESSEE AND HENCE MADE DISALLOWANCE OF PROPORTIONATE INTEREST OUT OF THE TOTAL INTEREST I.T.A. NOS. 1581, 1440 & 1441 /M/16 14 CLAIMED BY THE A SSESSEE IN THE P&L ACCOUNT AND WHILE DOING, SO HE FOUND THAT THE RATE OF INT EREST OF SECURED LOANS RANGED BETWEEN 10 TO 14% AND THEREFORE ADOPTED A MEAN OF 12% TO WORK OUT THE DISALLOWANCE AT .32.37,464 / - . 4.1 THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND B Y FOLLOWING VARIOUS DECISIONS, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4.2 ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY ARGUED THAT THE ASSESSEE HAS GIVEN THE ADVANCES TO ITS 100% SUBSIDIARIES AS PART OF BUSINESS EXIGENCIES TO FURTHER ITS BUSINESS OBJECTIVES AND IS PRIMARILY RELATED TO THE BUSINESS OPERATIONS OF THE ASSESSEE. THE ASSESSEE OPERATES THROUGH ITS SUBSIDIARIES AND THESE SUBSIDIARIES ARE SPREAD AC ROSS THE GLOBE AND CATER TO THE NEEDS OF ASSESSEE S CUSTOMERS AND MOREOVER THE ASSESSING OFFICER HAS DETERMINED THE INTEREST ON AD - HOC BASIS. THUS, HE PRAYED THAT THE DISALLOWANCE MADE ON THIS ACCOUNT SHOULD BE DELETED. 4.3 PER CONTRA, THE LD. DR HAS SUB MITTED THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO SHOW THAT THE SUBSIDIARIES TO WHOM ADVANCES HAD BEEN MADE, CATER TO THE CUSTOMERS OF THE ASSESSEE AND THAT THEIR FUNCTIONING I.T.A. NOS. 1581, 1440 & 1441 /M/16 15 IS AN INTEGRAL TO THAT OF THE ASSESSEE. FURTHER, THE ASSESSEE HAS ALSO N OT PRODUCED ANY EVIDENCE TO SHOW THAT THE ASSESSEE IS OPERATED THROUGH ITS SUBSIDIARIES. FURTHER, THE COMMERCIAL EXPEDIENCY WAS NOT ESTABLISHED. THUS, THE LD. DR HAS PLEADED THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER WAS VALIDLY CONFIRMED BY THE L D. CIT(A), WHICH MAY BE SUSTAINED. 4.4 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. DURING THE RELEVANT FINANCIAL YEAR, THE ASSESSEE CLAIMS TO HAVE MADE ADVANCES TO EIGHT OF THE ENT ITIES, 5 OF WHICH WERE NON - RESIDENT ENTITIES. THEY ARE (A) ACL SYSTEMS & TECHNOLOGIES PTE LIMITED. SINGAPORE, (B) ACCEL FRONTLINE FZE, DUBAI, (C) NETWORK PROGRAMS USA INC. USA, (D) NETWORK PROGRAMS (JAPAN) LNC., USA (E) NETWORK PROGRAMS JAPAN KK, JAPAN. (1 ) ACCEL IT RESOURCES LTD., (G) ACCEL TRANSMATIC LTD, (H) ACCEL LTD., ETC. AS PER ANNEXURE 4, THE DETAILS OF LOANS AND ADVANCES GIVEN TO SUBSIDIARIES AND ASSOCIATES AS ON 31.03.2011 BY THE ASSESSEE AND SUBMITTED BEFORE THE ASSESSING OFFICER IS REPRODUCED IN THE ASSESSMENT ORDER, WHEREIN IT IS CLEAR THAT OUT OF TOTAL AMOUNT OF .2. 69,78,867/ - INCLUDES 1.13 CRORES FUNDED FROM SINGAPORE BRANCH AND NOT FROM THE INDIAN COMPANY. FURTHER, THE ASSESSEE CLAIMS THAT T HE BALANCE AMOUNT OF .43.44 LAKHS REPRESENTS TRAD E ADVANCES AND EXPENSES REIMBURSEMENTS AND WAS NOT IN THE NATURE OF LOAN. SINCE THE RATE OF INTEREST PAYMENTS MADE BY THE ASSESSEE ON THE SECURED LOANS ARE RANGING BETWEEN I.T.A. NOS. 1581, 1440 & 1441 /M/16 16 10 TO 14% AND BY TAKING AVERAGE RATE OF INTEREST OF 12%, THE ASSESSING OFFICER WORKE D OUT THE INTEREST ATTRIBUTABLE TO INTEREST FREE ADVANCES AND DISALLOWED THE SAME FROM THE INTEREST PAID BY THE ASSESSEE. HOWEVER, WHILE DOING SO, IT IS NOT CLEAR FROM THE ASSESSMENT ORDER AS TO WHETHER THE ASSESSING OFFICER HAS NOT EXCLUDED THE ADVAN CE OF .1,13,21,350/ - FUNDED BY THE SINGAPORE BRANCH. THE LD. CIT(A) HAS ALSO NOT GIVEN ANY FINDINGS OVER THE SAID ADVANCE FROM SINGAPORE BRANCH TO THE SUBSIDIARIES. THUS, WE REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO VERIFY AS TO WHETHER TH E FUNDS CLAIMED TO HAVE PAID FROM SINGAPORE BRANCH WAS ALSO INCLUDED WHILE WORKING OUT THE INTEREST ATTRIBUTABLE TO INTEREST FREE ADVANCES TO ITS SUBSIDIARIES AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THUS, THE GROUND RAISED BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 5. THE ASSESSEE [ERSTWHILE M/S. ACCEL FRONTLINE SERVICES LTD.] HAS RAISED AN EFFECTIVE GROUND WITH REGARD TO THE DISALLOWANCES MADE IN RESPECT OF AMORTIZATION OF GOODWILL. THE ASSESSEE HAS CLAIMED DEPRECIATION @ 25% ON KN OW - HOW, BUSINESS & COMMERCIAL RIGHTS TREATING IT AS INTANGIBLE ASSET. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS OF THE SAME WITH EVIDENCES. THE ASSESSEE IN ITS SUBMISSIONS MERELY STATED THAT DEPRECIATION HAS BEEN CLAIMED AS PER THE PROVISIONS OF INCOME TAX ACT WITHOUT SPECIFYING THE NATURE OF SUCH COMMERCIAL RIGHTS OR BY ADDUCING EVIDENCES IN SUPPORT OF THE CLAIM. IN THE I.T.A. NOS. 1581, 1440 & 1441 /M/16 17 ABSENCE OF THE SAME, THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION CLAIMED AT .32,19,446/ - AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5.1 ON APPEAL, THE LD. CIT(A) DISMISSED THE GROUND RAISED BY THE ASSESSEE SINCE THE ASSESSEE HAS NOT SPECIFIED THE NATURE OF SUCH COMMERCIAL RIGHTS OR ADDUCING EVIDENCES IN SUPPORT OF THE CLAIM . 5.2 ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS ACQUIRED BUSINESS FROM OTHER COMPANY AND HAD TREATED THE DIFFERENCE BETWEEN THE SALE CONSIDERATION AND THE NET A SSETS TAKEN OVER AS COPY RIGHTS AND TECHNICAL KNOW - HOW AND WAS AMORTISING THE SAME OVER A PERIOD OF TIME AS GOODWILL. BY FILING COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2010 - 11, HE FURTHER SUBMITS THAT FOR THE PREVIOUS ASSESSMENT YEAR, SIMILAR CLAIM HAS BEEN ALLOWED AND THUS, HE PRAYED THAT THE DISALLOWANCE MAY BE DELETED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION . 5.3 PER CONTRA, THE LD. DR HAS ARGUED THAT SINCE THE ASSESSEE HAS NOT FURNISHED UNDER WHICH PROVISION THE ASSESSEE HAS MADE THE CLAIM, THE CLAIM OF THE ASSESSEE CANNOT BE ENTERTAINED. 5.4 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, THE ASSESSEE HAS RAISED A CLAIM OF AMORTIZATION OF GOODWILL. T HE SUBMISSION OF THE I.T.A. NOS. 1581, 1440 & 1441 /M/16 18 ASSESSEE WAS THAT THE CLAIM MADE IN EARLIER ASSESSMENT YEAR WAS ALLOWED AND SIMILARLY FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE SAME SHOULD BE ALLOWED. SINCE THE ASSESSEE HAS NOT FURNISHED THE SPECIFIC PROVISION UNDER WHICH THE CLAIM WAS MADE, THE AUTHORITIES BELOW HAVE REJECTED THE CLAIM MADE BY THE ASSESSEE. IT IS NOT MANDATORY FOR THE ASSESSEE TO KNOW EACH AND EVERY PROVISIONS OF THE ACT/RULE. THE AUTHORITIES BELOW SHOULD ADVICE THE ASSESSEE AND ASSESS WHETHER THE CLAIM OF THE ASSESSEE IS ADMISSIBLE UNDER THE PROVISIONS OF THE INCOME TAX ACT RULE. 5.5 INTANGIBLE ASSETS ARE IDENTIFIABLE NON - MONETARY ASSETS THAT CANNOT BE SEEN, TOUCH OR PHYSICALLY MEASURED, WHICH ARE CREATED THROUGH TIME AND/OR EFFORTS AND THAT ARE IDENTIFIABLE AS A SEPARATE ASSET. THESE INTANGIBLE ASSETS CAN EITHER BE IN THE FORM OF COPYRIGHTS, PATENTS, TRADEMARKS, GOODWILL, TRADE SECRETS, CUSTOMER LIST, MARKETING RIGHTS, FRANCHISES, ETC., WHICH EITHER ARISES ON ACQUISITION OR ARE INTERNALLY GENERATED. DEPRECIA TION ON FEW INTANGIBLE ASSETS ARE ALLOWED UNDER SECTION 32 OF THE ACT AND IT COVERED UNDER BLOCK 13 OF THE DEPRECIATION SCHEDULE AND THE RATE OF SUCH ASSETS IS 25%(WDV). WHILE CLAIMING THE DEPRECIATION, THE ASSESSEE IS REQUIRED TO FURNISH THE NATURE OF GOO DWILL WITH SUPPORTING EVIDENCE. IN VIEW OF THE ABOVE, WE REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AS TO WHETHER THE ASSESSEE IS ENTITLED TO CLAIM DEPRECIATION ON GOODWILL IN ACCORDANCE WITH LAW AFTER VERIFYING T HE DETAILS AS MAY BE FILED BY THE I.T.A. NOS. 1581, 1440 & 1441 /M/16 19 ASSESSEE . THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IN I.T.A. NO. 1581/MDS/2016 IS PARTLY ALLOWED AND THE APPEALS FILED BY THE ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 28 TH APRIL, 201 7 AT CHENNAI. SD/ - SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 28 . 0 4 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.