PHL PHARMA PVT. LTD., MUMBAI V. D.C.I.T. CIR.8(2), MUMBAI

ITA 5970/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2351 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 03-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M DAYASAGAR; VIJAY KUMARDR
• Keywords: Depreciation; Transfer pricing; International transaction; Revenue expenditure
• Section: 37(1); 194C; 37; 92

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -CBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND PAWAN SI NGH,JUDICIAL MEMBER ./I.T.A./5970/MUM/2012, /ASSESSMENT YEAR: 2008-09 PIZI MARKETING SERVICES PVT. LTD. ( FORMERLY KNOWN AS PHL PHARMA PVT. LTD.) PIRAMAL TOWER, GANPATRAO KADAM MARG, LOWER PAREL,MUMBAI-400 013. PAN:AACCN 5346 B VS. DCIT , CIRCLE-8(2) AAYAKAR BHAVAN, 2 ND FLOOR, M.K. ROAD MUMBAI-400 020. ./I.T.A./6084/MUM/2012, /ASSESSMENT YEAR: 2008-09 DCIT , CIRCLE-8(2) MUMBAI-400 020. VS. PIZI MARKETING SERVICES PVT. LTD. (FORMERLY KNOWN AS PHL PHARMA PVT. LTD.), MUMBAI-400 013. ( /APPELLANT ) ( / RESPONDENT) REVENUE BY:S/ SHRI M. DAYASAGAR-CIT-DR AND VIJAY KUMAR-DR ASSESSEE BY: SHRI YOGESH THAR / DATE OF HEARING: 28.06.2016 / DATE OF PRONOUNCEMENT: 29.07.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER,DATED 27/07/2012,OF THE CIT(A )-17,MUMBAI THE ASSESSEE AND THE ASSESSING OFFICER(AO)HAVE FILED CROSS-APPEALS FOR T HE YEAR UNDER CONSIDERATION.ASSESSEE- COMPANY,ENGAGED IN THE BUSINESS OF CONSULTANCY AND DETAILING SERVICES,FILED ITS RETURN OF INCOME ON 29/09/2008,DECLARING A LOSS OF RS.34.73 C RORES.THE AO COMPLETED THE ASSESSMENT ON 27/12/2010,U/S.143(3) OF THE ACT,DETERMINING THE INCOME OF THE ASSESSEE AT LOSS OF RS. 10,00,82,110/-. ITA/6084/MUM/2012: 2. FIRST GROUND OF APPEAL,RAISED BY THE AO,IS ABOUT DE LETING THE DISALLOWANCE OF RS.9.31 CRORES,MADE U/S.40 (A) (IA) OF THE ACT.DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAD REIMBURSED THE SUM OF R S. 12. 18 CRORES TO NPHL,AS PER THE TERMS OF THE MOU, THAT THE ASSESSEE HAD NOT DETECTED ANY TAX BEFORE MAKING THE PAYMENT, IT ARGUED BEFORE THE AO THAT THERE WAS NO ELEMENT OF PROFIT I N THE SUM REIMBURSED TO NPHL.THE AO, HOWEVER, DISAGREED WITH THE ASSESSEE AND REFERRING TO THE TERMS OF THE MOU,HE HELD THAT RELATIONSHIP BETWEEN THE ASSESSEE AND NPHL WAS THAT OF CONTRACT AND CONTRAC -TEE,THAT THE PROVISIONS OF SECTION 194C WERE ATTRACTED ON THE RE IMBURSED THE AMOUNT.AFTER GIVING CREDIT OF RS.2.87 CRORES, FOR THE SUM ALREADY DISALLOWED AS T HE INCORPORATION EXPENSES,THE AO DISALLOW -ED THE BALANCE AMOUNT OF RS.9.31 CRORES U/S.40 (A) (AI) OF THE ACT. 5970 & 6084/M/12(08-09)PHLPHARMA 2 2.1. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA)AND ARGUED THAT THERE WAS N O CONTRACTOR-CONTRACTEE RELATIONSHIP BETWEEN THE ASSESSEE AND NPHL,IT WAS PURELY A REIMB URSEMENT OF EXPENDITURE INCURRED FOR IT ON WHICH NO TAX WAS LIABLE TO BE DEDUCTED AT SOURCE ,THAT THERE WAS NO ELEMENT OF INCOME IN THESE REIMBURSEMENTS.THE ASSESSEE RELIED UPON CASES OF INDUSTRIAL ENGINEERING PROJECTS PRIVATE LIMITED(202ITR1014),COCA-COLA INDIA(7SOT71) AND BANGALORE INTERNATIONAL AIRPORT LTD.(116 ITD446). AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER, THE FAA HELD THAT AS PER THE TERMS OF THE MOU IT WA S A SIMPLE CASE OF REIMBURSEMENT OF EXPENSES BY THE ASSESSEE, THAT THERE WAS NO EVIDENC E TO SHOW THAT AN ELEMENT PROFIT WAS EMBEDDED IN THE SAID REIMBURSEMENT,THAT THE MOU DID NOT ESTABLISH A CONTRACTOR-CONTRACTEE RELATIONSHIP TO BE HIT BY THE PROVISIONS OF SECTION 194C OF THE ACT.RELYING UPON THE CASES, REFERRED BY THE ASSESSEE,THE FAA HELD THAT TDS PROV ISIONS WOULD NOT APPLY TO THE REIMBURSEMENT OF EXPENSES.FINALLY, HE DELETED THE A DDITION MADE BY THE AO. 2.2. DURING THE COURSE OF HEARING BEFORE US,THE DEPARTME NTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF THE AO.THE AUTHORISED REPRESENTATIVE ( AR) STATED THAT PAYMENT WAS PURELY REIMBURSEMENT AND HENCE PROVISIONS OF SECTION 194C WERE NOT APPLICABLE. 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT THE AO HAD MADE THE DISALLOWANCE OF RS. 9.31 CRORES,AS HE WAS OF THE OPINION THAT THERE WAS CONTRACT-CONTRACTEE RELATIONSHIP BETWEEN THE ASSESS EE AND NPHL. AFTER GOING THROUGH THE MOU, WE ARE OF THE OPINION THAT THERE IS NOTHING IN THE DOCUMENT TO PROVE THAT ASSESSEE WAS A CONTRACTOR. THE ASSESSEE HAD AGREED TO REIMBURSE THE EXPENDITURE INCURRED BY THE OTHER PARTY. PROVISIONS OF CHAPTER XVIIB OF THE ACT ARE N OT APPLICABLE FOR REIMBURSEMENT EXPENSES. IN THE CASE UNDER CONSIDERATION,THE FAA HAD GIVEN A CATEGORICAL FINDING OF FACT THAT PAYMENTS IN QUESTION WERE REIMBURSEMENT.THEREFORE,WE ARE OF THE OPINION THAT THERE IS NO NEED TO INTERFERE WITH THE ORDER OF THE FAA.CONFIRMING HIS ORDER,WE DECIDE FIRST GROUND OF APPEAL AGAINST THE AO. 3 .SECOND GROUND OF APPEAL IS ABOUT DISALLOWANCE OF R S. 7.05 CRORES,UNDER THE HEAD ADVERTIS - ING AND SALES PROMOTION.DURING THE ASSESSMENT PROCE EDINGS, THE AO NOTED THAT ASSESSEE HAD INCURRED AN EXPENDITURE OF RS. 14.27 CRORES TOWARDS ADVERTISEMENT AND SALES PROMOTION. THE ASSESSEE CONTENDED THAT IT WAS REQUIRED TO MAKE SAI D EXPENDITURE AS PER THE TERMS OF THE MOU, THAT THE SAID EXPENDITURE WAS MAINLY WITH REGA RD TO SAMPLES,PRINTING MATERIAL AND OTHER PROMOTIONAL ITEMS,THAT IT WAS INCURRED FOR TH E PURPOSE OF BUSINESS AND WAS ALLOWABLE AS 5970 & 6084/M/12(08-09)PHLPHARMA 3 PER THE PROVISIONS OF SECTION 37 (1) OF THE ACT,THA T THE EXPENDITURE DID NOT BRING INTO EXISTENCE ANY ASSET AND WAS THEREFORE REVENUE NATUR E.HOWEVER,THE AO DID NOT AGREE WITH THE SUBMISSIONS MADE BY THE ASSESSEE AND HELD THAT THE AMOUNT WAS INCURRED FOR BUILDING BRAND/GOODWILL OF NPHL, THAT THE EXPENDITURE INCURR ED BY THE ASSESSEE TOWARDS THE DETAILING SERVICES WAS NOT FOR ITS OWN BUSINESS BUT FOR THE B USINESS OF NPHL,THAT THE EXPENDITURE WAS INCURRED FOR EXPANSION OF THE BUSINESS AND THEREFOR E WAS A NATURE, THAT THE BENEFIT OF THE EXPENDITURE WENT TO NPHL,THAT THE EXPENDITURE ON AD VERTISEMENT AND SAME PROMOTION COULD NOT BE ALLOWED AS SAME WAS NOT INCURRED FOR BUSINES S PURPOSES.OUT OF THE TOTAL EXPENDI TURE OF RS.21.75 CRORES,THE AO DISALLOWED EXPENDITURE OF RS.7.05 CRORES. 3.1. DURING THE COURSE OF HEARING BEFORE THE FAA,THE ASS ESSEE ARGUED THAT EXPENDITURE WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ITS OWN BUSINESS,THAT IT WAS PART OF THE PROFIT EARNING PROCESS AND WAS INCURRED TO ENABLE I T TO CARRY ON ITS BUSINESS MORE PROFITABLE, NO ASSET OR ADVANTAGES OF ENDURING NATURE HAD BEEN BROUGHT INTO EXISTENCE BY INCURRING THE SAID EXPENDITURE, THAT THE EXPENSES WERE INCURRED T O PROMOTE SALES AND INCREASE BRAND VISIBILITY AND THE DOCTOR/ CONSUMERS ALL OVER INDIA .THE ASSESSEE RELIED UPON THE CASES OF AGRA BEVERAGE CORPORATION(200TAXMAN43),EASTERN INVESTMEN TS LTD.(20ITR1)AND SALES MAGNESITE (P.) LTD. (81 TAXMAN 334). AFTER CONSIDERING THE SU BMISSION OF THE ASSESSEE, THE FAA HELD THAT THE EXPENDITURE INCURRED ON ADVERTISEMENT AND SALE PROMOTION WAS REVENUE IN NATURE. HE REFERRED TO THE CASE OF KOPRAN LTD.(48SOT225).HE AL SO DISCUSSED THE ISSUE OF BENEFIT ARISING OUT OF THE EXPENDITURE TO NHPL VIS-A-VIS THE ASSESS EE AND OBSERVED THAT THERE WAS NO DISPUTE ABOUT INCURRING OF EXPENDITURE AS PER THE TERMS OF THE MOU,THAT THE EXPENDITURE INCURRED BY THE ASSESSEE WAS ALLOWABLE U/S.37 (1) OF THE ACT,EV EN IF IT WOULD INDIRECTLY BENEFIT THE NPHL. 3.2 .BEFORE US,THE DR SUPPORTED THE ORDER OF THE AO AND THE AR RELIED UPON THE ORDER OF THE FAA.WE FIND THAT THE AO HAD NOT DOUBTED THE GENUINE NESS OF INCURRING OF EXPENDITURE-HIS ONLY OBJECTION WAS THAT THE EXPENDITURE INCURRED BY THE ASSESSEE BENEFITED NPHL.HE ALSO HELD THAT THE EXPENDITURE WAS CAPITAL IN NATURE.WE ARE UNABLE TO AGREE WITH THE AO,AS THE EXPENDITURE INCURRED ON ACCOUNT OF ADVERTISEMENT AN D SALE PROMOTION NEVER BRING ANY ASSET OF ENDURING BENEFIT-IT IS A PURE AND SIMPLE REVENUE EX PENDITURE.NO AUTHORITIES REQUIRED TO HOLD THE EXPENSES INCURRED FOR PROMOTING OWN BUSINESS HA VE TO BE ALLOWED AS PER THE PROVISIONS OF SECTION 37(1)OF THE ACT. DETAILS OF PRODUCTS GIVEN AS SALES PROMOTION ARTICLE AND PRINT MATERIAL FOR SALES PROMOTION (PG.148-50 OF PB) CLEA RLY PROVE THAT THE EXPENDITURE INCURRED BY THE ASSESSEE WAS FOR ITS OWN BUSINESS. 5970 & 6084/M/12(08-09)PHLPHARMA 4 HERE WE WOULD LIKE TO REFER TO THE MATTER OF N.G.C. NETWORK (INDIA) P. LTD.(368 ITR 738) OF THE HONBLE JURISDICTIONAL HIGH COURT.FACTS OF THE CASE WERE THAT THE ASSESSEE WAS A COMPANY INCORPORATED IN INDIA AND ENGAGED IN THE BUSINESS O F DISTRIBUTION OF TELEVISION CHANNELS. IT ALSO ACTED AS AIRTIME ADVERTISING SALES REPRESENTAT IVE FOR ITS PRINCIPALS. FOR THE ASSESSMENT YEAR 2005-06, IT DECLARED A TOTAL INCOME OF RS.4,85 ,16,730/-AND ALSO FILED FORM 3CEB IN VIEW OF THE INTER -NATIONAL TRANSACTIONS WITH ITS A SSOCIATED ENTERPRISES. THE ITEMS MENTIONED IN FORM 3CEB WERE REFERRED TO THE TPO,WHO ACCEPTED THE ARM'S LENGTH PRICE DECLARED BY THE ASSESSEE.THE AO NOTED THAT THE ASSESSEE HAD INCURRE D EXPENSES TOWARDS ADVERTISING AND PUBLICITY WHICH BENEFITED NOT ONLY THE ASSESSEE BUT ALSO THE FOREIGN PRINCIPALS.SINCE IT DID NOT DISCLOSE SUCH BENEFIT TO THE MEMBERS AS PART OF FOR M 3CEB,HE HELD THAT THE ENTIRE EXPENDITURE UNDER THE HEAD ADVERTIS-ING AND PROMOTI ON,AMOUNTING TO RS.6.21CRORES WAS NOT ALLOWABLE AS DEDUCTION U/S.37(1) OF THE ACT.HE REST RICTED THE DEDUCTION,U/S.37(1) OF THE ACT, TO 33.33% OF THE EXPENDITURE CLAIMED.THE FAA HELD T HAT THE ENTIRE EXPENDITURE WAS ALLOWABLE AS REVENUE EXPENDITURE AND THAT SINCE THE PAYMENTS WERE MADE TO INDIAN RESIDENTS THEY WERE NOT COVERED IN FORM 3CEB AS SECTION 92 CO VERS ONLY INTERNATIONAL TRANSACTIONS.THE THIRD MEMBER OF THE TRIBUNAL UPHELD THE DECISION OF THE FAA.ON APPEAL THE MAIN GROUNDS ON WHICH THE REVENUE HAD QUESTIONED THE ORDER OF TH E TRIBUNAL WERE NON-DISCLOSURE IN FORM 3CEB OF THE FACT THAT THE PRINCIPAL WAS ALSO A BENE FICIARY OF THE ADVERTISING EXPENSES,THAT THE ADVERTISING AND PROMOTIONAL EXPENSES WERE NOT WHOLL Y FOR THE BENEFIT OF THE ASSESSEE BUT ALSO THE FOREIGN PRINCIPAL WHICH WAS AN ASSOCIATED ENTER PRISE, THAT ADVERTISING AND PUBLICITY EXPENSES WERE FAR HIGHER THAN THE REVENUE EARNED AN D, LASTLY, THAT ALTHOUGH THE FOREIGN PRINCIPALS,I.E.,ASSOCIATED ENTERPRISE BENEFITED FRO M ADVERTISING AND PUBLICITY NO COMPENSATION WAS PAID BY THE FOREIGN PRINCIPALS TO THE ASSESSEE TO AVAIL OF SUCH BENEFITS.DISMISSING THE APPEAL THE HONBLE COURT HELD AS UNDER: .THE CONTENTION THAT THERE WAS NO PROPER DISCLOSU RE OF THE BENEFIT BEFORE THE TRANSFER PRICING OFFICER COULD NOT BE A REASON TO ENTERTAIN THE QUESTIONS AND THE ORDER OF THE TRANSFER PRICING OFFICER WAS FINAL. THE ASSESSEE WAS AN AGEN T OF THE FOREIGN PRINCIPAL AND THE PRINCIPAL WOULD NATURALLY BENEFIT FROM ADVERTISING CARRIED ON BY THE AGENT IN INDIA. HOWEVER, THESE BENEFITS WERE NOT ASCERTAINABLE. THE BENEFITS WERE NOT ASCERTAINABLE OR TAXABLE IN VIEW OF THE EXTRA TERRITORY. THE ASSESSEE HAD NOT SUPPRE SSED ANY INFORMATION. IT OFFERED TO TAX ITS INCOME FROM BOTH BUSINESS, NAMELY, DISTRIBUTION BUS INESS AS WELL AS ADVERTISEMENT AND PROMOTION BUSINESS. THE ASSESSING OFFICER HAD PROCE EDED TO GRANT 33.33 PER CENT. OF THE TOTAL ADVERTISING EXPENSES AS ALLOWABLE DEDUCTION. THERE WAS NO JUSTIFICATION FOR SUCH RESTRICTION OF THE EXPENSES. FURTHERMORE, THE REVENUE'S CASE WAS T HAT THE FACT OF THE FOREIGN PRINCIPAL BENEFITING HAD BEEN DISCLOSED IN FORM 3CEB AND THE TRANSFER PRICING OFFICER COULD HAVE TAKEN A DIFFERENT VIEW. ADMITTEDLY, THEREFORE, THE TRANSFER PRICING OFFICER HAD FOLLOWED A POSSIBLE VIEW WHICH COULD NOT NOW BE FAULTED. 5970 & 6084/M/12(08-09)PHLPHARMA 5 (II) THAT THERE WAS NO DOUBT THAT IN VIEW OF THE DE CISION OF THE SUPREME COURT IT COULD NOT BE SAID THAT THE EXPENDITURE WAS NOT WHOLLY OR EXCLUSI VELY FOR BENEFIT OF THE ASSESSEE. THE MERE FACT THAT THE FOREIGN PRINCIPALS ALSO BENEFITED WAS NOT GROUND TO DENY THE DEDUCTION UNDER SECTION 37(1) . (EMPHASIS BY US).FURTHERMORE, ALL THE AMOUNTS EARNE D BY THE ASSESSEE WERE BROUGHT TO TAX, ESPECIALLY IN VIEW OF THE FACT THAT THE PAYMENT OF EXPENSES WERE MADE TO THE INDIAN RESIDENTS AND THEIR PAYMENTS WERE NOT REQUIR ED TO BE INCLUDED IN FORM 3CEB SINCE SECTION 92 WHICH GOVERNS THE EFFECT OF FORM 3CEB CO VERS ONLY INTERNATIONAL TRANSACTIONS. THE ASSESSEES INCOME FROM SUBSCRIPTION FEE WAS VARIABL E AND THROUGH COMMISSION RECEIVED ON THE ADVERTISING SALES WAS 15 PER CENT. OF THE VALUE OF AD-SALES. THE ASSESSING OFFICER'S CONTENTION THAT THE ASSESSEE RECEIVED FIXED INCOME WAS NOT JUSTIFIED AND THERE WAS CERTAINLY A DIRECT NEXUS BETWEEN THE AMOUNT SPENT ON ADVERTISIN G AND PUBLICITY AND THE ASSESSEE'S REVENUE. (III) THAT IT WAS ALSO NOT NECESSARY THAT THE FOREI GN ENTERPRISE MUST COMPENSATE THE INDIAN AGENT FOR THE BENEFIT IT RECEIVED OR MAY RECEIVE FR OM THE ADVERTISEMENT AND PROMOTION OF ITS CHANNELS BY THE AGENT IN INDIA. THE AGENT IN INDIA EARNED COMMISSION FROM AD-SALES AND DISTRIBUTION REVENUE, BOTH OF WHICH HAD SUFFICIENTL Y COMPENSATED THE ASSESSEE. THE REVENUE COULD NOT BE EXPECTED TO DETERMINE THE SUFFICIENCY OF THE COMPENSATION RECEIVED BY THE AGENT AND AS SUCH THERE WAS ANY JUSTIFICATION IN THIS GRO UND EITHER. CONSIDERING THE ABOVE,WE ARE OF THE OPINION,THAT TH ERE IS NO NEED TO INTERFERE WITH THE ORDERS OF THE FAA,SO,CONFIRMING HIS ORDER,WE DECIDE THE SE COND GROUND OF APPEAL AGAINST THE AO. ITA/5970/MUM/2012: 4. FIRST GROUND IS ABOUT DISALLOWANCE OF LOSS PERTAINI NG TO PERIOD PRIOR TO INCORPORATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE AO NOTED THAT THE ASSESSEE COMPANY WAS INCORPORATED ON 15.6.07 IN THE NAME OF MBIL PHARMA SERVICES PVT.LTD.(MBIL),THAT ON 14.08.2008,THE NAME OF THE COMPANY WAS CHANGED TO P HL PHARMA PVT. LTD.,THAT EXPENSES PERTAINING TO PERIOD 01.04. 07 TO 15.6. 2007,I.E. P RIOR TO THE DATE OF INCORPORATION,HAD BEEN INCLUDED.HE DIRECTED THE ASSESSEE TO FILE EXPLANATI ON IN THAT REGARD.HE FOUND THAT A COMPANY CALLED NPIL HEALTHCARE PVT.LTD.(NPHL),WAS INCORPORA TED TO DO THE BUSINESS OF MANUFACTURE, PROMOTE AND MARKET MASS MARKET BRANDED FORMULATION ( MMBF ) PRODUCTS,THAT IT WANTED TO OUTSOURCE CERTAIN CRITICAL FUNCTIONS IN RUNNING OF MMBF PRODUCTS BUSINESS,THAT FOR THAT PURPOSE IT APPROACHED J.C.SAIGAL (JCS),ERSTWHILE DI RECTOR OF NICHOLAS PIRAMAL GROUP TO PROVIDE CONSULTANCY AND RETAILING SERVICES,THAT JCS AGREED TO PROVIDE NPHL THE REQUIRED SERVICES,THAT THEY ENTERED INTO A MEMORANDUM OF UND ERSTANDING(MOU) ON 29.03.2007.IN THE MOU IT WAS DECIDED JCS WOULD PROVIDE CERTAIN CONSUL TANCY AND RETAILING SERVICES TO NPHL W.E.F. 1.4.2007, THAT FOR THIS PURPOSE HE WOULD INC ORPORATE A PRIVATE LTD.CO.,THAT AFTER ITS INCORPORATION IT WOULD ADOPT THE OBLIGATION OF JCS WITH REGARD TO SERVICES TO BE PROVIDED TO NPHL,THAT JCS WOULD WITHIN A PERIOD OF THREE MONTHS INCORPORATE A PVT. CO. LIMITED BY SHARES(NEWCO) HAVING AS PART OF ITS OBJECT CLAUSE T HE POWER TO PROVIDE CONSULTANCY, THAT INCORPORATION OF NEWCO THE PROMOTER WOULD ADOPT THE RIGHTS AND OBLIGATIONS UNDER THE MOU BY PASSING APPROPRIATE RESOLUTION,THAT THE PROMOTER WOULD OBTAIN A LICENSE FOR CARRYING ON 5970 & 6084/M/12(08-09)PHLPHARMA 6 BUSINESS,THAT AFTER THE LICENSE WAS OBTAINED NPHL W OULD TRANSFER AND NEWCO WOULD TAKE OVER THE EMPLOYMENT WITH CONTINUITY OF SERVICE OF SUCH E MPLOYEES OF NPHL WHO WERE INVOLVED IN THE BUSINESS ACTIVITY OF MARKETING AND SELLING OF M MBL PRODUCTS,THAT THE NEWCO WOULD REIMBURSE NPHL THE EXPENSES INCURRED BY IT ON MARKE TING DETAILING AND PROMOTIONAL EXPENSES INCLUDING ALL THE EXPENSES RELATED TO EMPL OYEES W.E.F. 1.4.2007. THE AO FURTHER OBSERVED THAT THE ASSESSEE COMPANY WAS INCORPORATE D ON 15.6.07,THAT ON THE SAME DATE AN MOU ADOPTION AGREEMENT WAS ENTERED INTO BETWEEN JCS , NPHL AND THE ASSESSEE,THAT THE SAID AGREEMENT STIPULATED THAT ALL ACTS,DEEDS AND T HINGS DONE BY JCS UNDER THE MOU W.E.F. 1.4.2007 WOULD BE DEEMED TO HAVE BEEN UNDERTAKEN ON BEHALF OF THE ASSESSEE COMPANY, THAT ALL EXPENSES AND LIABILITIES INCURRED OR TO BE INCU RRED ATTRIBUTABLE TO THE PROMOTER (JCS) WOULD BE BORNE AND BE PAYABLE BY NPIL PHARMA.HE HELD THAT THE EXPENSES INCURRED PRIOR TO THE INCORPORATION OF THE COMPANY WERE NOT ALLOWABLE.FIN ALLY,HE MADE A DISALLOWANCE OF RS.8.34 CRORES AND REDUCED IT FROM THE TOTAL LOSS OF THE AS SESSEE. 4.1. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM,THE ASSESSEE M ADE ELABORATE SUBMISSIONS.RELYING UPON THE CASE OF ANDHRA PRADESH TOURISM CORPORATION LIMI TED (5SCC425),IT ARGUED THAT THE ACTS OF THE PROMOTER BEFORE INCORPORATION OF A COMPANY W AS BINDING AFTER INCORPORATION, THE AO HAD NOT DISPUTED THE FACT OF INCURRING OF EXPENDITU RE AND RESULTANT LOSS, THAT THE LOSS INCURRED BY IT SHOULD BE CARRIED FORWARD FOR SET OFF IN THE SUBSEQUENT AY.S AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D THE ASSESSMENT ORDER,THE FAA REFERRED TO THE PROVISIONS OF SECTION 3 OF THE ACT AND DELI BERATED UPON THE THE CONCEPT OF PREVIOUS YEAR.HE RELIED UPON THE CASE OF KIKABHAI PREMCHAND (24ITR506) AND HELD THAT ANY EXPENSES INCURRED IN A YEAR, OR AS THE CASE COULD BE YEARS P RIOR TO THE COMMENCEMENT OF PREVIOUS YEAR COULD NOT BE DEDUCTED OUT OF THE PROFITS OF THE PRE VIOUS YEARS.HE REFERRED TO THE MOUS ENTERED INTO BETWEEN MIPL AND JCS AND CALLED FOR DE TAILS OF LICENSES NECESSARY FOR COMMENCEMENT OF BUSINESS.HE OBSERVED THAT THE ASSES SEE COMPANY WAS REGISTERED FOR THE SERVICE TAX PURPOSES ON 29.10.2007 .HE HELD THAT TH E EFFECTIVE DATE OF SETTING UP OF BUSINESS WAS NOT EARLIER THAN 31.7.2007 THAT THE DATE OF INC ORPORATION WAS 15.6.2007, THAT THE PROVISIONS OF SPECIFIC RELIEF ACT WERE NOT APPLICAB LE TO THE ACT,THAT THE AO WAS JUSTIFIED IN HOLDING THAT EXPENSES OF A COMPANY CAN BE ALLOWED A FTER INCORPORATION ONLY, THAT BY NO STRETCH OF IMAGINATION IT COULD BE ARGUED THAT BUSI NESS OF THE COMPANY HAD BEEN SET UP PRIOR TO ITS BIRTH.HE DIRECTED THE AO TO DISALLOW THE EXP ENSES UP TO THE PERIOD 31.7.2007. 5970 & 6084/M/12(08-09)PHLPHARMA 7 4.2. REGARDING THE QUANTUM OF DISALLOWANCE,HE HELD THAT THE ASSESSEE HAD OBJECTED TO THE DISALLOWANCE MADE BY THE AO,THAT IT HAD STATED THAT PRE-INCORPORATION PERIOD EXPENSES WERE OF RS.4.78 CRORES AND NOT RS.9.66 CRORES AS DETERMI NED BY THE AO, THAT IF ACTUAL FIGURES WERE TAKEN THE RESULTANT DISALLOWANCE WOULD BE RS.3.46CR ORES. AFTER CONSIDERING THE ABOVE OBJECTIONS OF THE ASSES SEE,THE FAA OBSERVED THAT THE ASSESSEE WAS DIRECTED TO PRODUCE ALL ORIGINAL BILLS AND VOUC HERS AMOUNTING TO RS.12.18 CRORES BEING THE SUM REIMBURSED BY AEEAEESS TO NPHL.AS PER THE F AA THE ASSESSEE COULD PRODUCE DETAILS AND VOUCHERS AMOUNTING TO RS.4.78 CRORES ONLY.HE DI RECTED THE AO TO DISALLOW THE LOSS INCURRED FOR THE PERIOD 1.4.2007 TO 31.3.2007 ON TH E BASIS OF ACTUAL BOOK RESULTS.HE ALSO OBSERVED THAT OF THE ASSESSEE FAILED TO PRODUCE ORI GINAL VOUCHERS/BOOKS OF ACCOUNT THE AO WOULD BE AT LIBERTY TO ADOPT THE BASIS OF THE ASSES SMENT ORDER . 4.2. BEFOER US,THE AR ARGUED THAT THE PROMOTER WAS INCUR RING EXPENSES AS PER THE AGREEMENT, THAT AFTER INCORPORATION THE COMPANY HAD DECIDED TO TAKE OVER THE LIABILITIES OF THE ERSTWHILE ENTITY.SHE REFERRED TO PAGE 17 OF THE PB AND THE PR OVISIONS OF THE SPECIFIC RELIEF ACT AND RELIED UPON THE CASES OF CITY MILLS DISTRIBUTORS(21 9ITR1), DALMIYA CEMENT LTD. (237 ITR 617)AND ZUARI AGRO CHEMICALS LTD.(30TAXMANN.COM.101 ) . HE FURTHER ARGUED THAT THE FAA HAD DIRECTED TO DISALLOW EXPENSES TILL 31.07.2016,T HAT IT RESULTED IN ENHANCING THE INCOME OF THE ASSESSEE,THAT THE FAA HAD NOT ISSUED THE NOTICE U/S.251(1)OF THE ACT,BEFORE ENHANCEMENT, THAT PROVISIONS OF SERVICE TAX CANNOT GOVERN THE TA X LIABILITY OF AN ASSESSEE.WITH REGARD TO THE QUANTIFICATION,THE AR STATED THAT THE AO HAD TAKEN EXPENDITURE FOR THE WHOLE YEAR AND HAD MADE A PROPORTIONATE DISALLOWANCE,THAT EVEN IF ANY SUM WAS TO BE DISALLOWED IT SHOULD HAVE BEEN RESTRICTED TO ACTUAL EXPENDITURE.THE DR SUPPOR TED THE ORDER OF THE FAA AND STATED THAT PRE-INCORPORATION EXPENSES COULD NOT BE ALLOWED,THA T THE AO HAD RIGHTLY TAKEN THE EXPENSES FOR THE ENTIRE YEAR AND HAD MADE THE DISALLOWANCE F OLLOWING THE TIME AND MARGIN RATIO METHOD,THAT THE PROVISIONS OF SPECIFIC RELIEF ACT W ERE NOT APPLICABLE TO THE INCOME TAX PROCEEDINGS. 4.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL.WE FIND THAT THE FIRST MOU WAS ENTERED INTO ON 29/03/2007 BETWEEN THE CLIENT A ND THE PROMOTER,THAT THE PROMOTER WAS TO FLOAT A PRIVATE COMPANY,THAT THE NEW COMPANY HAD TA KEOVER THE PRE-EXISTING LIABILITIES/ PROFIT AND LOSS OF THE COMPANY FLOATED BY THE PROMOTER,THA T THE COMPANY WAS INCORPORATED ON 15/07/ 2007, THAT THE AO DISALLOWED THE EXPENDITURE INCURRED FOR THE PERIOD FROM 01/ 04/2007 TO 15 TH ,JULY,2007,THAT THE FAA HELD THAT EXPENDITURE INCUR RED BY THE ASSESSEE UP TO 31/ 5970 & 6084/M/12(08-09)PHLPHARMA 8 07/2007 SHOULD BE DISALLOWED,THAT THE FAA HAD NOT I SSUED A NOTICE U/S.251(2)OF THE ACT, BEFORE HOLDING THAT DISALLOWANCE SHOULD BE MADE FOR REMAINING PART OF THE MONTH OF JULY, 2007.IN OUR OPINION, TO THAT EXTENT THE ORDER OF TH E FAA CANNOT BE ENDORSED, AS IT RESULTED IN ENHANCEMENT OF THE INCOME OF THE ASSESSEE.HE SHOULD HAVE ISSUED A NOTICE,AS REQUIRED BY THE PROVISIONS OF THE ACT. NOW,WE WOULD TAKE UP THE BALANCE DISALLOWANCE I.E. EXPENDITURE INCURRED UP TO 15/07/ 2007. WE FIND THAT MOU BETWEEN NPHL AND JCS STIPULATED TH AT HE WOULD PROVIDE CONSULTANCY AND DETAILING SERVICES FROM 01/04/2007,THAT HE WOULD FO RM AND INCORPORATE A PRIVATE COMPANY, LIMITED BY SHARES,TO BE CONTROLLED BY HIM, THAT ON INCORPORATION THE SAID COMPANY WOULD ADOPT THE OBLIGATIONS OF JCS WITH REGARD TO CONSULT ANCY AND DETAILING SERVICES TO BE PROVIDED TO NPHL, THAT THE DETAILS IN THE SCOPE OF THE CONSU LTANCY SERVICES WAS PROVIDED IN SCHEDULE-I, THAT THE DETAILED AND SCOPE OF DETAILING SERVICES W AS PROVIDED IN SCHEDULE-II,THAT JCS WOULD BE ENTITLED TO A CONSULTANCY FEES OF RS.35 LAKHS PE R MONTH,THAT IN ADDITION TO THE ABOVE FEE IF THE NET SALES OF MMBF PRODUCTS EXCEEDED RS.30 CRORE S FOR THE YEAR UNDER CONSIDERATION HE WOULD BE ENTITLED TO AN ADDITIONAL PAYMENT AT THE R ATE OF 5% OF THE NET SALES IN EXCESS OF RS. 30 CRORES,THAT HE WOULD BE ENTITLED TO DETAILING FE ES OF 4% OF THE NET SALES OF THE PRODUCTS SOLD BY NPHL.IT WAS FURTHER AGREED THAT JCS WOULD WITHIN A PERIOD OF THREE MONTHS INCORPORATE A PRIVATE LIMITED COMPANY HAVING AS PART OF ITS OBJEC T CLAUSE THE POWER TO PROVIDE CONSULTANCY AND DETAILING SERVICES.CLAUSE 9 OF THE MOU READS AS UNDER: 9. UPON INCORPORATION OF NEWCO, THE PROMOTER SHALL PROCURE THE NEWCO TO ADOPT THE RIGHTS AND OBLIGATIONS ASSUMED BY THE PROMOTER UNDER THIS MOU BY PASSING APPROPRIATE RESOLUTION IS A DULY CONSTITUTED MEETING OF THE BOARD OF DIREC TORS OF NEWCO. THE MOU ADOPTION AGREEMENT, DATED 15/06/2007 WAS EN TERED INTO BY THREE PARTIES I.E.JCS, NPIL PHARMA SERVICES PRIVATE LTD. AND NPIL HEALTHCA RE PRIVATE LTD.VIDE CLAUSE 3 OF THE AGREEMENT IT WAS AGREED THAT ALL EXPENSES AND LIABI LITIES INCURRED/TO BE INCURRED/ATTRIBUTABLE TO THE PROMOTER UNDER THE MOU WITH EFFECT FROM 01/ 04/ 2000 007 WOULD BE BORN AND PAYABLE BY NPIL PHARMA.AS PER THE AGREEMENT ASSESSEE COMPAN Y HAD TO ADAPT THE MOU,DATED 29/ 03/20,IN FAVOUR WITH EFFECT FROM 01/04/2007.IT WAS ALSO DECIDED THAT ALL ACTS, DEEDS AND THINGS DONE BY JCS UNDER THE YOU WITH EFFECT FROM FIRST AP RIL,2007 WOULD BE DEEMED TO HAVE BEEN UNDERTAKEN ON BEHALF OF THE COMPANY AND WERE TO BE ADOPTED BY IT. IT WAS ALSO DECIDED THAT THE ASSESSEE COMPANY WOULD TAKE OVER THE EMPLOYMENT , WITH CONTINUITY OF SERVICE,OF SUCH EMPLOYEES OF NPIL WHO WERE INVOLVED IN THE BUSINESS ACTIVITIES OF MARKETING AND SELLING OF MMBF PRODUCTS. 5970 & 6084/M/12(08-09)PHLPHARMA 9 WE WOULD LIKE TO REFER TO THE MATTER OF THE BILJI C OTTON MILLS LTD.(23 ITR 278).IN THAT CASE A FIRM HAD ENTERED INTO AN AGREEMENT TO PURCHASE A MI LL FOR A COMPANY WHICH THEY INTENDED TO FLOAT AND OBTAINED POSSESSION OF THE MILL IN DECEMB ER,1942,ON BEHALF OF THE COMPANY.THE COMPANY WAS FLOATED ONE YEAR AFTER THE PURCHASE TOO K PLACE I.E.IN DECEMBER,1943.THE SALE DEED WAS EXECUTED IN ITS FAVOUR ON IN JANUARY, 1945 . THE COMPANY CHOSE TO ACCEPT THE PROFITS MADE BEFORE ITS INCORPORATION AND TREATED THE PROMO TERS AS ACCOUNTABLE FOR ALL PROFITS MADE DURING THE PERIOD DECEMBER,1942-DEC.1943.MATTER TRA VELLED UP TO THE HONBLE ALLAHABAD HIGH COURT,WHERE FOLLOWING QUESTION WAS FRAMED: 2. WHETHER IN THE CIRCUMSTANCES OF THE CASE THE INC OME OF THE PERIOD FROM 11TH DECEMBER, 1942, TO 10TH DECEMBER, 1943, COULD BE LEGALLY ASSE SSED IN THE HANDS OF THE ASSESSEE COMPANY WHICH WAS INCORPORATED ON 11TH DECEMBER, 19 43?' THE HONBLE COURT DEALT THE MATTER AS UNDER: THE FACTS FOUND IN THE APPELLATE ORDER OF THE INCO ME-TAX TRIBUNAL AND WHICH ARE STATED IN THE STATEMENT OF THE CASE ARE THAT MESSRS. DAVID MI LLS LTD. WERE PREVIOUS OWNERS OF THE BIJLI COTTON MILLS AT HATHRAS. MESSRS. SHYAMLAL CHIMANLAL , A PARTNERSHIP FIRM, THOUGHT OF ACQUIRING THE BIJLI COTTON MILLS FOR A SUM OF RS. 1 5 LACS ON BEHALF OF A COMPANY, WHICH THEY WERE GOING TO GET INCORPORATED. MESSRS. SHYAMLAL CH IMANLAL PAID THE STIPULATED PRICE TO MESSRS. DAVID MILLS LTD., PURPORTING TO DO SO ON BE HALF OF THE COMPANY WHICH THEY WERE GOING TO FLOAT. ON 10.12.1942, THEY OBTAINED POSSES SION OF THE BIJLI COTTON MILLS AS REPRESENTING THE PURCHASER COMPANY WHICH HAD NOT YE T COME INTO EXISTENCE BUT WHICH THEY SPECIFICALLY MENTIONED THEY HAD DECIDED TO GET INCO RPORATED. ON 11.12.1943, THE COMPANY WAS DULY INCORPORATED AND ON THE 02.01.1945, A FORM AL CONVEYANCE WAS EXECUTED BY MESSRS. DAVID MILLS LTD. IN FAVOUR OF THE NEW COMPANY, CALL ED THE BIJLI COTTON MILLS LTD., AGRA. ON 1.03.1945, THE AO ASSESSED THE BIJLI COTTON MILLS L TD., ON THE INCOME FROM THE 11.12.1942, TO THE 31.12.1943. THIS ASSESSMENT COULD ONLY BE ON TH E BASIS THAT THE BIJLI COTTON MILLS LTD. HAD EARNED PROFITS FROM THE DATE THAT MESSRS. SHYAMLAL CHIMANLAL HAD COMMENCED BUSINESS AFTER TAKING OVER POSSESSION OF BIJLI COTTON MILLS FROM M ESSRS. DAVID MILLS LTD. THE BIJLI COTTON MILLS LTD. HAD CLAIMED CERTAIN SUMS OF MONEY AS DEP RECIATION. THEY WERE NOT SATISFIED WITH THE DEPRECIATION ALLOWED BY THE AO AND FILED AN APP EAL. WHILE THE APPEAL WAS STILL PENDING THE INCOME-TAX O FFICER THOUGHT THAT HE HAD MADE A MISTAKE IN ASSESSING THE BIJLI COTTON MILLS LTD. ON THE INC OME FROM THE 11.12.1942, AND CAME TO THE CONCLUSION THAT HE SHOULD HAVE ASSESSED THE BIJLI C OTTON MILLS LTD. ONLY FROM THE DATE OF ITS INCORPORATION AND THAT THE LIABILITY FOR THE PAYMEN T OF INCOME-TAX FOR THE PERIOD FROM THE 11.12.1942 TO 10.12.1943, WAS OF MESSRS. SHYAMLAL C HIMANLAL, THE PROMOTERS, WHO HAD DURING THAT PERIOD CONTINUED THE BUSINESS. AFTER NOTING THE FACTS THAT THE FAA CANCELLED THE A SSESSMENT AND THAT THE TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE,THE HON BLE COURT HELD AS FOLLOW: COMING TO THE SECOND QUESTION, THE FACTS STATED AB OVE, WHICH HAVE BEEN REPRODUCED FROM THE STATEMENT OF THE CASE, SHOW THAT MESSRS. SHYAMLAL C HIMANLAL ENTERED INTO AN AGREEMENT TO PURCHASE THE BIJLI COTTON MILLS NOT FOR THEMSELVES BUT FOR A COMPANY WHICH THEY WERE GOING TO FLOAT. IT ALSO APPEARS THAT WHEN THEY TOOK POSSE SSION THEY MADE IT CLEAR THAT THEY WERE NOT TAKING POSSESSION OF THE BIJLI COTTON MILLS IN THEI R OWN RIGHT BUT ON BEHALF OF THE PRIVATE LIMITED COMPANY WHICH THEY WERE GOING TO HAVE INCOR PORATED. THE COMPANY WAS NO DOUBT INCORPORATED ALMOST ONE YEAR AFTERWARDS, I.E., ON T HE 11TH OF DECEMBER, 1943, AND THE SALE DEED IN ITS FAVOUR WAS NOT EXECUTED TILL THE 2ND OF JANUARY, 1945, BY MESSRS. DAVID MILLS LTD. WHO WERE THE OWNERS. IT FURTHER APPEARS FROM THE ST ATEMENT OF THE CASE THAT, AFTER THE ASSESSEE 5970 & 6084/M/12(08-09)PHLPHARMA 10 COMPANY WAS INCORPORATED, THE ASSESSEE CHOSE TO ACC EPT THE PROFITS MADE BEFORE ITS INCORPORATION AND TREATED THE PROMOTERS AS ACCOUNTA BLE FOR ALL PROFITS MADE DURING THE PERIOD 11TH DECEMBER, 1942, AND 10TH DECEMBER, 1943. IN TH E CIRCUMSTANCES THE QUESTION ARISES WHETHER IT CAN BE SAID THAT THE BUSINESS WAS CARRIE D ON BY THE ASSESSEE, DURING THE RELEVANT PERIOD. LEARNED COUNSEL FOR THE DEPARTMENT HAS LAID GREAT S TRESS ON THE LANGUAGE OF SECTION 10 OF THE INDIAN INCOME-TAX ACT AND HAS POINTED OUT THAT UNDE R SECTION 10 TAX IS PAYABLE BY AN ASSESSEE IN RESPECT OF THE PROFITS OR GAINS OF ANY BUSINESS CARRIED ON BY HIM. THE ARGUMENT IS THAT THE ASSESSEE CANNOT BE SAID TO HAVE BEEN CARRY ING ON A BUSINESS PRIOR TO ITS INCORPORATION ON THE 11TH OF DECEMBER, 1943, WHEN IT DID NOT EXIS T AND DURING THE PERIOD FROM THE 11TH OF DECEMBER, 1942, TO THE 10TH OF DECEMBER, 1943, THE PROMOTERS, MESSRS. SHYAMLAL CHIMANLAL, MUST BE DEEMED TO HAVE BEEN CARRYING ON THE BUSINES S AND THEY ARE, THEREFORE, THE PERSONS WHO ARE LIABLE TO ASSESSMENT. IT IS TRUE THAT UNDER THE LAW THE ASSESSEE, THE BIJ LI COTTON MILLS LTD., CAME INTO EXISTENCE ONLY ON ITS INCORPORATION ON THE 11TH OF DECEMBER, 1943, AND IT IS NOT POSSIBLE TO HOLD THAT THE LEGAL TITLE IN THE BUSINESS OR ITS PROFITS VESTED I N IT BEFORE ITS INCORPORATION. IT IS, HOWEVER, WELL SETTLED THAT IF THE PROMOTERS OF A COMPANY BUY A PR OPERTY OR CARRY ON A BUSINESS ON BEHALF OF A COMPANY WHICH THEY INTEND TO FLOAT, ON THE INC ORPORATION OF THE COMPANY, THE COMPANY HAS A RIGHT TO EITHER ACCEPT WHAT HAS BEEN DONE ON ITS BEHALF BY THE PROMOTERS OR REPUDIATE THE SAME. IF THE COMPANY ACCEPTS WHAT THE PROMOTERS HAVE DONE ON ITS BEHALF IT HAS A RIGHT TO CLAIM FROM THE PROMOTERS THE ENTIRE INCOME OF TH E PROPERTY SINCE ITS PURCHASE OR THE ENTIRE INCOME FOR THE PERIOD DURING WHICH THE BUSIN ESS WAS CARRIED ON FOR THE BENEFIT OF THE COMPANY.(EMPHASIS ADDED.) THE QUESTION WHETHER THE PROMOTERS CAN BE SAID TO B E TRUSTEES FOR A COMPANY NOT IN EXISTENCE AND WHAT EXACTLY IS THE RELATIONSHIP BETWEEN A PROM OTER AND A COMPANY, WHICH COMES INTO EXISTENCE LATER, HAS BEEN THE SUBJECT-MATTER OF SEV ERAL DECISIONS. THOUGH, STRICTLY SPEAKING,IT CANNOT BE SAID THAT A PERSON IS A TRUSTEE FOR A BEN EFICIARY NOT IN EXISTENCE, IT HAS BEEN HELD THAT, ON THE COMPANY BEING FLOATED, THE RELATIONSHI P BETWEEN A PROMOTER AND THE COMPANY THAT HE HAS FLOATED MUST BE DEEMED TO BE A FIDUCIAR Y RELATIONSHIP FROM THE DAY THE WORK OF FLOATING THE COMPANY HAD BEEN STARTED. IN LYDNEY AN D WIGPOOL IRON ORE COMPANY V. BIRD LORD JUSTICE LINDLEY SAID THAT ALTHOUGH THE PROMOTE R IS 'NOT AN AGENT OF THE COMPANY NOR A TRUSTEE FOR IT BEFORE ITS FORMATION, THE OLD FAMILI AR PRINCIPLES OF THE LAW OF AGENCY AND OF TRUSTEESHIP HAVE BEEN EXTENDED, AND VERY PROPERLY E XTENDED, TO MEET SUCH CASES; AND USING THE WORD 'PROMOTER' TO DESCRIBE A PERSON ACTING AS JAMES BIRD DID, IT IS PERFECTLY WELL SETTLED THAT A PROMOTER OF A COMPANY IS ACCOUNTABLE TOIL FO R ALL MONEYS SECRETLY OBTAINED BY HIM FROM IT JUST AS IF THE RELATIONSHIP OF PRINCIPAL AND AGE NT OR OF TRUSTEE AND CESTUI QUE TRUST HAD REALLY EXISTED BETWEEN THEM AND THE COMPANY WHEN THE MONEY WAS SO OBTAINED.' IN OMNIUM ELECTRIC PALACES V. BAINES IT WAS DOUBTED WHETHER T HIS WAS STRICTLY ACCURATE AND WHETHER IT DID NOT MERELY CONFUSE MATTERS TO ATTEMPT TO IDENTI FY THE FIDUCIARY DUTIES OF A PROMOTER WITH ORDINARY OUT AND OUT TRUSTEESHIP. BUCKLEY IN HIS CO MPANIES ACTS, 12TH EDN. AT PAGE 108, DEALING WITH THIS MATTER SAYS:- 'THE CASE OF A PROMOTER IS A STRONG CASE OF FIDUCIA RY RELATIONSHIP, INASMUCH AS THE TRUSTEE OR AGENT, SO FAR FROM BEING SELECTED BY HIS CESTUI QUE TRUST OR PRINCIPAL, ACTUALLY CREATES THE PRINCIPAL IN WHOSE AFFAIRS HE ACTS.' IF, THEREFORE, THE PROMOTERS HAVE NOT BOUGHT SOME P ROPERTY OR BUSINESS FOR THEIR OWN USE BUT ON BEHALF OF OR FOR THE BENEFIT OF A COMPANY WHICH THEY WERE ABOUT TO FLOAT, THOUGH THE COMPANY WHEN FLOATED MAY HAVE THE OPTION TO ACCEPT THE BENEFIT OF THE CONTRACT ENTERED INTO BY THE PROMOTERS, OR BUY THE PROPERTY PURCHASED FOR ITS BENEFIT, THE PROMOTERS HAVE NO RIGHT TO REFUSE TO GIVE THE PROPERTY OR THE BUSINESS OR THE BENEFIT DERIVED THEREFROM TO THE COMPANY IF THE COMPANY WANTS TO ACQUIRE THAT PROPERTY OR THE B USINESS. 5970 & 6084/M/12(08-09)PHLPHARMA 11 THERE IS, THEREFORE, NO DOUBT THAT MESSRS. SHYAMLAL CHIMANLAL, AS PROMOTERS, WERE ACCOUNTABLE TO THE ASSESSEE, BIJLI COTTON MILLS LTD ., ON ITS INCORPORATION ON NTH OF DECEMBER, 1943, FOR THE ENTIRE PROFITS MADE FROM THE NTH OF D ECEMBER, 1942, WHEN THEY COMMENCED BUSINESS AFTER GETTING POSSESSION OF THE PROPERTY O N BEHALF OF THE ASSESSEE. THE FACT THAT THE ASSESSEE COULD NOT CLAIM LEGAL TITLE FROM THE 10TH OF DECEMBER, 1942, WOULD FOR PURPOSES OF INCOME-TAX MAKE NO DIFFERENCE AS ON EQUITABLE GROUN DS THE ASSESSEE COULD CLAIM THE ENTIRE PROFITS OF THE BUSINESS RUN FROM THE NTH OF DECEMBE R, 1942, AND IN THE CASE BEFORE US IT DID AND REALISED THE WHOLE AMOUNT. IT MUST BE HELD, THE REFORE, THAT THE BUSINESS WAS RUN ON ITS BEHALF. REFERRING TO CERTAIN CASES THE HONBLE COURT FURTHE R HELD AS UNDER: THESE CASES, HOWEVER, MAKE IT CLEAR THAT UNDER SEC TIONS 9 AND 10 OF THE INCOME-TAX ACT, IT IS NOT ONLY THE LEGAL OWNERSHIP THAT HAS TO BE LOOKED TO BUT THE COURTS CAN ALSO GO INTO THE QUESTION OF BENEFICIAL OWNERSHIP AND DECIDE WHO SHO ULD BE HELD LIABLE FOR THE TAX AFTER TAKING INTO ACCOUNT THE QUESTION AS TO WHO IS AS A MATTER OF FACT IN RECEIPT OF THE INCOME WHICH WAS GOING TO BE TAXED. XXXXXXXXXXX ..IF WE ARE CORRECT IN THIS VIEW, THEN THERE CAN B E NO DOUBT THAT AFTER THE ASSESSEE HAD ADOPTED THE ACTION OF THE PROMOTERS AND HAD DECIDED TO TAKE OVER THE BUSINESS THE PROFITS FOR THE WHOLE OF THE PERIOD, DURING WHICH THE PROMOTERS RAN THE BUSINESS WHICH THEY HAD TO HAND OVER TO THE COMPANY AND WHICH THEY COULD NOT CLAIM THAT THEY HAD A RIGHT TO KEEP FOR THEIR OWN BENEFIT, BECAME INCOME OF THE ASSESSEE. IT WILL BE OF INTEREST IN THIS CONNECTION TO QUOTE THE OBSERVATIONS OF LORD JUSTICE COTTON IN LADYWELL MINING COMPANY V. BROOKES, LADYWELL MINING COMPANY V. HUGGONS WHERE HE SAID:- 'THE MONEY WAS ALL PAID BY PALIN AND HIS FRIENDS AN D IN MY OPINION THEY BOUGHT FOR THEMSELVES, AND WITHOUT PUTTING THEMSELVES INTO SUC H A POSITION AS TO ENTITLE THE COMPANY WHEN FORMED TO SAY, 'YOU WERE ACTING FOR US; YOU WE RE IN A FIDUCIARY POSITION AS REGARDS THIS PROPERTY, AND NOW, THEREFORE, AS YOU HAVE PURPORTED TO SELL THIS TO US, WE ARE ENTITLED TO TAKE IT AT THE PRICE YOU ORIGINALLY GAVE FOR IT'.' IN THAT CASE ON THE EVIDENCE IT WAS HELD THAT THE P ROMOTERS HAD GOT THE MINE FOR THEIR OWN BENEFIT BUT IF IT HAD BEEN FOUND THAT THE PROMOTERS HAD GOT THE MINE FOR THE BENEFIT OF THE COMPANY WHICH THEY WERE GOING TO FLOAT, THE JUDGMEN T OF LORD JUSTICE COTTON MAKES IT CLEAR THAT THE PROMOTERS COULD NOT HAVE KEPT ALL THE PROF ITS THEY MADE BY SELLING THE MINE TO THE COMPANY AT A HIGHER PRICE THAN THE PRICE THEY PAID FOR IT. XXXXXXXXXXXXXXXXXX WE HAVE ALREADY HELD THAT IN THE CASE BEFORE US THO UGH THE ASSESSEE COMPANY CAME INTO EXISTENCE ALMOST A YEAR AFTERWARDS, THE ASSESSMENT PROCEEDINGS WERE STARTED AT A TIME WHEN THE ASSESSEE COMPANY HAD ALREADY DECIDED TO ACCEPT WHAT HAD BEEN DONE ON ITS BEHALF BY THE PROMOTERS AND TAKE OVER THE PROPERTY AND BUSINESS A ND THE INCOME MADE THEREFROM FROM THE 11TH OF DECEMBER, 1942, AND IT WAS IN THE SAME POSI TION AS A BENEFICIARY FOR WHOM THE INCOME WAS EARMARKED AS PAYABLE TO IT. THE CASE IS, THEREFORE, TO OUR MINDS GOVERNED BY THE PRINCIPLE LAID DOWN IN TRUSTEES OF SIR CURRIMBHOY E BRAHIM BARONETCY TRUST CASE AND THE INCOME FROM THE 11TH OF DECEMBER, 1942, TO 10TH OF DECEMBER, 1943, COULD BE LEGALLY ASSESSED IN THE HANDS OF THE ASSESSEE. IF THE PRINCIPLES LAID DOWN IN THE ABOVE CASE ARE C ONSIDERED IT BECOMES CLEAR THAT AGREEMENT ENTERED IN TO BY THE PROMOTER CAN BIND THE SUCCEEDI NG ENTITY OF EARLIER LIABILITIES.IN THE CASE UNDER CONSIDERATION,THE NEW COMPANY HAD AGREED TO T AKE OVER THE LIABILITIES AND EXPENSES INCURRED/TO BE INCURRED/ATTRIBUTABLE TO THE PROMOTE R UNDER THE MOU WITH EFFECT FROM 01/ 04/2007.AS THE INCOME CAN BE TAXED IN THE HANDS OF THE SUCCEEDING ENTITY,EXPENDITURE CAN 5970 & 6084/M/12(08-09)PHLPHARMA 12 ALSO BE ALLOWED IN THE HANDS OF THE NEW COMPANY.THE RFORE,WE HOLD THAT THE EXPENDITURE INCURRED BY THE ERSTWHILE ENTITY HAS TO BE ALLOWED IN THE HANDS OF THE ASSESSEE. 4.4. WE HAVE PRINCIPALLY HELD THAT THE EXPENDITURE INCUR RED BY THE ASSESSEE HAS TO BE ALLOWED U/S.37(1)OF THE ACT.BUT,THE QUANTUM OF ALLOWANCE HA S TO BE DECIDED. WE FIND THAT THE FAA HAS GIVEN A CATEGORICAL FINDING THAT ALL THE BILLS AND VOUCHERS EVIDENCING THE INCURRING OF EXPENDITURE WERE NOT PRODUCED BEFORE HIM.WE ARE REP RODUCING THE RELEVANT PORTION OF THE ORDER OF THE FAA AND SAME READS AS UNDER: DURING THE COURSE OF APPELLATE PROCEEDINGS, VIDE N OTINGS DT.18.04.2012, THE APPELLANT WAS ASKED TO PRODUCE ALL THE ORIGINAL BILLS AND VOUCHER S FOR RS.12,18,96,889/-, BEING THE SUM REIMBURSED BY THE ASSESSEE TO NPHL.HOWEVER AS PER N OTING, DT.3.7.12 THE APPELLANT COULD ONLY PRODUCE DETAILS AND VOUCHERS PERTAINING TO RS.4,78, 15,177/- . NOTHING WAS BROUGHT ON RECORD TO PROVE THAT AN APPL ICATION U/S.154 OF THE ACT WAS FILED BEFORE THE FAA BY THE ASSESSEE CHALLENGING THE FACT UAL MISTAKE IN HIS ORDER ABOUT NON PRODUCING OF THE BILLS/VOUCHERS.NO ARGUMENTS WAS MA DE BEFORE US OR ANY DETAILS WAS FILED IN THE PAPER BOOKS TO PROVE THAT BILLS/VOUCHERS OF BAL ANCE AMOUNT WERE PRODUCED BEFORE THE AO IN PURSUANCE OF THE ORDER OF THE FAA.IN THESE CIRCU MSTANCES,THE INCURRING OF EXPENDITURE WAS NOT PROVED BEFORE HIM.SO,IF HE HAS OBSERVED THAT IF THE ASSESSEE FAILS TO PRODUCE THE ORIGINAL VOUCHERS OR BOOKS OF ACCOUNTS THE AO WOULD BE AT LI BERTY TO ADOPT THE BASIS OF ASSESSMENT.IN OUR,OPINION DECISION OF THE FAA TO THAT EXTENT DOES NOT SUFFER FROM ANY INFIRMITY.SO, COSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE,WE DECIDE THE FIRST GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE,IN PART. AS WE HAVE DECIDED THE EFFECTIVE GROUND IN FAVOUR O F THE ASSESSEE,SO,ALTERNATE GROUND(GOA- 2) IS NOT BEING ADJUDICATED. AS A RESULT,APPEAL FILED BY THE AO STANDS DISMISSED AND THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. . ORDER PRONOUNCED IN TH E OPEN COURT ON 29 TH JULY,2016. 29 , 2016 SD/- SD/- ( / PAWAN SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 29.07.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5970 & 6084/M/12(08-09)PHLPHARMA 13 5. DR C BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.