Facts
The partnership firm was dissolved due to differences between the partners. Subsequent to dissolution an auction conducted for taking over the business of the earstwhile partnership firm on going concern basis, three of the earstwhile partners of the partnership firm formed an AOP and emerged as the highest bidders of the auction. Thereafter, they continued the business in the name of the AOP. In A.Y. 1995-96, the assessee claimed deduction of legal expenses as revenue expenditure allowable under section 37(1) of the Act. The AO disallowed the claim of the assessee. The CIT(A) and ITAT allowed the claim of the assessee on the ground that the legal expenses incurred for defending the business of the going concern and for protecting its interest could not be said to be personal in nature nor could it be said that the expenses were unreasonable or not bona fide. The High Court reversed the finding of the Tribunal.
Issue
Whether legal expenses incurred for defending the business of the going concern and for protecting its interest could be said to be incurred for the purpose of the business and therefore, allowable under section 37(1) of the Act?
Held
The Supreme Court observed that in Dalmia Jain & Co. Ltd. v. CIT [1971] 81 ITR 754 (SC) it was held that the expenses for the purposes of protecting the business of the assessee as a going concern was allowable under section 37(1) of the Act. The Supreme Court held that there is a clear finding of fact by the Tribunal that the legal expenses incurred by the assessee were for protecting its business and there is no reason to reverse this finding of fact particularly since nothing has been shown to conclude that the finding of fact was perverse in any manner whatsoever. Therefore, the legal expenses incurred for protecting the business were allowable as deduction under section 37(1) of the Act. (AY. 1995-96) (CA Nos. 10547-10548 of 2011 dated 15/10/2015)
Facts
The assessee had also claimed deduction under Section 35A and 35AB of the Act for acquisition of Intellectual Property Rights such as rights over the trademark, copyright and technical know-how. In the alternative, the assessee claimed depreciation on capitalizing the value of the Intellectual Property Rights by treating them as plant. The AO and CIT(A) rejected the claim of the assessee. The ITAT allowed the claim of the assessee that the Intellectual Property Rights is Plant and therefore, depreciation can be claimed. The High Court reversed the decision of the ITAT.
Issue
Whether the expenditure incurred on the acquisition of trademarks, copyrights and know-how is allowed for depreciation under Section 32 of the Act, read with Section 43(3) of the Act?
Held
The Intellectual Property Rights such as trademarks, copyrights and know-how come within the definition of ‘plant’ for the reason that in a large business, control over intellectual property rights such as brand name, trademark etc. are absolutely necessary. Moreover, the acquisition of such rights and know-how is acquisition of a capital nature. Therefore, the trademarks, copyrights and know-how acquired by the assessee would come within the definition of ‘plant’ being commercially necessary and essential asunderstood by those dealing with direct taxes. Therefore, the assessee is entitled to the benefit of section 32 read with section 43(3) of the Act. (AY. 1995-96) (CA Nos. 10547-10548 of 2011 dt. 15-10-2015)
Editorial: For issue no. 1: The Supreme Court has followed the decision in
- Ravindranathan Nair v. CIT [2001] 247 ITR 178/114 taxman 53 (SC) wherein it was observed that the High Court overlooked the cardinal principle that it is the Tribunal which is the final fact finding authority. A decision on fact of the Tribunal can be gone into by the High Court only if a question has been referred to it which says that the finding of the Tribunal on facts isperverse.
The decision in Mangalore Ganesh Beedi Works v. CIT has been followed in
DCIT v. B. Kumara Gowda (2017) 396 ITR 386 (Karn.)(HC)
For issue no 2: Section 32 of the Act as it stood for A.Y. 1995-96 did not make any distinction between tangible and intangible assets for the purposes of depreciation. Subsequently, the Act has been amended to provide for 25% depreciation on intangibleassets like trademark, copyrights, patents, etc.
“For me, the different religions are beautiful flowers from the same garden, or they are branches of the same majestic tree. Therefore, they are equally true, though being received and interpreted through human instruments equally imperfect.”
– Mahatma Gandhi