Case Law Details

Case Name : Lakme Lever Private Limited Vs CIT (ITAT Mumbai)
Appeal Number : ITA No. 2613/Mum/2015
Date of Judgement/Order : 03/12/2018
Related Assessment Year : 2010-11
Courts : All ITAT (7336) ITAT Mumbai (2110)

Lakme Lever Private Limited Vs CIT (ITAT Mumbai)

As regards the depreciation on non compute fee is concerned, we find that the claim was duly made by the assessee in the computation of income. Hence, it cannot be said that the A.O. has not applied his mind on this issue. In this regard, we place reliance upon the case law from the Hon’ble jurisdictional High Court in the case of State Bank of India vs. ACIT (WP No. 271 of 2018 vide order dated 16.06.2018) for the proposition that when the A.O. allows a claim on the basis of computation of income, it cannot be said that the same has been done without application of mind. Furthermore, we find that the issue of depreciation on intangible assets in the nature of goodwill has been decided in favour of the assessee by the decision of Hon’ble Apex Court in the case of CIT vs. Smifs Securities Ltd. [2012] 348 ITR 302 (SC). Hence, the claim of the deprecation on non compete fee can be considered on the anvil of these case laws. Hence, the view adopted by the A.O. cannot be said to be not a possible one.

Hence, we are of the opinion that the view adopted by the A.O. was possible one. In this regard, we place reliance upon the decision of the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 243 ITR 83 (SC) and CIT vs. Max India Ltd. (2007) 295 ITR 282 (SC) for the proposition that if there are two views possible and the A.O. has adopted one view, with which the ld. CIT is not in agreement, with the order cannot be said to be liable to be visited with the revisionary order by the ld. CIT u/s. 263. Accordingly, the order under 263 passed by the ld. CIT is hereby quashed. Accordingly, we decide the issue in favour of the assessee.

FULL TEXT OF THE ITAT JUDGMENT

This appeal by the assessee is directed against the order of the learned Commissioner of Income Tax-1, Mumbai (‘ld.CIT for short) dated 03.03.2015 and pertains to the assessment year (A.Y.) 2010-11.

2. The grounds of appeal raised read as under:

1. The learned CIT erred in passing order u/s 263 of the Act.

2. The learned CIT erred in setting aside the assessment order. He erred on facts and in law in holding that, order of Assessing officer is erroneous and prejudicial to the interest of the revenue.

3. He further erred in directing the Assessing officer to pass assessment order afresh on the issues that have been raised in the order u/s 263 of the Act.

4. The learned CIT failed to appreciate that. Assessing officer after proper enquiry in this respect had correctly not added as income the employee’s contribution to PF of 4,86,601 and contribution to ESIC of Rs.28,539, deposited by the appellant well before the due date for filing of return of Income and also correctly allowed depreciation of Rs. 27,50,000 u/s 32 of the Act on the non-compete fee paid by the appellant, in the order passed u/s 143 (3) of the Act.

Thus, the order passed by Assessing officer u/s 143 (3) was neither erroneous, nor prejudicial to the interest of the revenue.

5. The appellant humbly requests that, the order passed by learned CIT u/s 263 was not warranted in the present case. Therefore, it ought to be quashed and order of assessing officer passed u/s 143 (3) be restored.

3. In this case, the ld. CIT observed that a perusal of records of assessment for Y.20 10-11 under consideration revealed that employees’ contribution towards provident fund amounting to Rs.4,86,601/- and towards ESIC of Rs.28,539/- were paid by Company beyond the prescribed due date and yet were allowed by the Assessing Officer in computation of income. The ld. CIT observed that the employees’ contribution are governed by section 36(l)(va) r.w.s.2(24)(x) of the I.T. Act and Section 43B of the Act has nothing to do with employees contribution. That therefore in respect of these payments, the fact that amounts under consideration have been paid before the due date of filing of Return of Income is of no significance.

4. He further observed that it was also noticed that assessee had claimed and was allowed depreciation of Rs.27,50,000/- @ 25% of non compete fees of Rs. 1.10 crores paid to Hindustan Unilever Ltd. That it was also noticed that on payment of non compete fees, firstly, no asset is getting generated and, second that the payment is made to Hindustan Unilever Ltd., the owner of the brand (Lakme) and is in respect of non competition in Lakme brand itself. Also, Hindustan Unilever Ltd. is a group concern and holding Company. That therefore, to think of competition from this Company is nothing but an eye-wash. That therefore, prima facie there is no question of any expenditure either in the form of non compete fees itself or in the form of depreciation on the amount of non compete fee. That in view of the same, a Show Cause Notice u/s.263 of the Act was issued to assessee proposing to revise the assessment.

5. The ld. CIT noted the response of the assessee on the notice issued as under:

Employees’ contribution towards PF and ESIC

He has argued that the allowability of employees’ contribution to PF and ESIC is a highly debatable issue and there are decisions in favour of assessee that when the amounts are paid before the date of filing of Return of Income, deduction of the same has to be allowed. He has further argued that provisions of Section 43B are squarely applicable to employees’ contribution towards PF and ESIC. He has also argued that in the course of assessment proceedings, Assessing Officer had all the details available with him and therefore, revision now would tantamount to ‘change of opinion’, which is not permissible u/s,263 of the Act. He has, therefore pleaded that the proposed revision should be dropped.

Non compete fee

6.1. In respect of the second issue, the Authorised Representative of the assessee has argued that non compete fee has been paid under specific agreement with Hindustan Unilever Ltd. In making the payment, this Company has been restricted from competing with the Assessee Company in the business of Lakme Salons. This has led to enhanced profit earning capacity of the assessee. He has also argued that as of result, the Company can operate more efficiently in its line of activity. According to him, the right acquired under non compete agreement is the right for which the valuable consideration is paid. This right ensures that the recipient of the non compete fee does not compete in any manner with the business of assessee. According to him, this right so acquired is a commercial right duly covered by the definition of intangible asset defined in Section 32(l)(ii) of the Act. It is claimed that assessee is accordingly entitled to depreciation and therefore revision u/s.263 should not be done.

6.2 He has also claimed that the fact of payment of non compete fee and claim of depreciation was known to A.O. at the time of making assessment and therefore revisions at this stage would tantamount to ‘change of opinion’ which is not permissible u/s.263 of the Act. ie has, therefore pleaded that the proposed revision should be dropped.

6. However, the ld. CIT was not convinced. He directed the A.O. to consider the issue afresh in accordance with his directions. The conclusions of the ld. CIT is as under:

7. Employees’ contribution towards PF and ESIC

7. I have perused the facts of the case. I find that in respect of employees’ contribution towards PF and ESIC, the A.O. has mechanically allowed the deduction without understanding the technical difference between Section 36(l)(va) r,w.s.2(24)(x) on the one hand and Section 43B on the other hand. Assessing Officer has totally missed the very critical concept of interpretation of statutes that specific provisions of the Act always supersedes general provisions. In the scheme of Income Tax Act, Section 43B is a general provision. In contrast, provisions contained in section 2(24)(x) deeming deduction of employees’ contribution to be income in the hands of assessee and Section 36(l)(va) deeming payment of be same to the account of employees’ in time to be expenditure in the hands of assessee are specific provisions under the Act. Once an item is covered by the specific provisions of the Act, the general provisions have to be ignored. This the A.O. has totally missed.

7.2 The Assessing Officer has also ignored the fact that Section 2(24)(x) and Section 36(1)(va) are deeming provisions under the Act and in interpretation of the deeming provision, nothing can be added to what is specified in the deeming provision. Therefore, whatever is mentioned in Section 43B cannot be imported in to interpret Section 36(l)(va) r.w.s. 2(24)(assessee) of the Act.

7.3 I find that A.O. has totally misunderstood the provisions of the Act and therefore order of assessment is erroneous. An item of expenditure which should have been disallowed u/s.36(l)(va) has been allowed by A.O. The order is therefore prejudicial to interest of revenue. The provisions of Section 263 of the Act are squarely attracted.

8. Non compete fee

8.1 The issue of non compete fee has not been analyzed by A.O. in its correct perceptive. It is true that submissions of assessee were available on record. It is also true that A.O. has supposedly looked into these submissions. However, A.O. has not gone into the critical facts of the agreement. In particular, A.O. has ignored the fact that Hindustan Unilever Ld. is the owner of the Lakme brand. He has also failed to realize that Hindustan Unilever Ltd. is a group company and is also the holding company of assessee. Therefore to think of assessee subsidiary company prohibiting its holding company, which is also the owner of the brand, not to compete with assessee, is intriguing and ought to have been analyzed by A.O. before coming to the conclusion of the issue. These facts have not been looked into by A.O. at all.

8.2 Assessing Officer has also not understood that in making the payment of non compete fee, no assets is created in the hands of assessee. The fee is restricting Hindustan Unilever Ltd. to compete with assessee. That is a negative connotation, opening up hypothetical market for assessee, as has been claimed. That market exists and will continue to exist. The existence of the market is not in the hands of assessee. Also, a prohibition upon third person does not ipso-facto grant any right to assessee. The main contention, as is made in the written submissions, is that the ‘right acquired under non v compete agreement is the right for which the valuable consideration is paid’. I do not find any substance in this contention. The Ld. Representative of assessee was asked to specifically identify the asset, within the four corners of Section 32(l)(ii) of the Act. He has claimed that the intangible right acquired by assessee is a commercial right I do not agree with this contention because the commercial right which is being talked about, already exists with assessee, the right to run the Lakme Show rooms. There is no augmentation to that right. There is no increase in assesssee’s gamut for doing that particular business. It remains the same. As far as assessee is concerned, nothing has changed whatsoever. For the purpose at hand what is important is that the A.O. has failed to look into these critical facts necessarily required to decide the issue, in particular, A.O. failed to understand, even think of, whether an asset as at all is being created. Therefore, the order of assessment is erroneous and is prejudicial to the interest of revenue because the possibility of disallowing depreciation has been totally missed.

9. In view of the above, it is held that the order under consideration is erroneous and prejudicial to the interest of revenue. It is therefore set aside with directions to A.O. to frame the assessment afresh and decide the issue on merits after looking into the issues that have been raised in this order herein above.

7. Against the above order, the assessee is in appeal before us.

8. We have heard both the counsel and perused the records. The ld. Counsel of the assessee submitted that as regards the issue of disallowance of payment for provident fund and ESICG are concerned; the same is duly covered in favour of the assessee by the decision of Hon’ble jurisdictional High Court in the case of CIT vs. Ghatge Patil Transport Ltd. [2015] 53 taxmann.com 141 (Bom).

9. Hence, the ld. Counsel of the assessee submitted that the assumption of jurisdiction u/s.263 of the Act is not sustainable.

10. As regards the issue of depreciation on non complete fee, the ld. Counsel of the assessee submitted that the claim of depreciation was very much there in computation of Hence, he submitted that the A.O. has duly applied his mind in allowing the said depreciation. Furthermore, he submitted that the issue of depreciation on such assets now has been decided by the Hon’ble Apex Court.

11. Hence, the ld. Counsel of the assessee submitted that there was no justification for the ld. CIT to exercise jurisdiction u/s. 263 of the Income Tax Act, 1961.

12. Per contra, the ld. DR submitted that the A.O. has not made any enquiry He referred to the ITAT decision in the case of Sify Software Ltd. vs. Asst. CIT [2017] 50 taxmann.com273 (Chennai-Trib). He submitted that the ld. CIT(A) has only remitted the matter for examination before the A.O. Hence, he claimed that no prejudice will be cause to the assessee.

13. Upon careful consideration, we find that as regards the issue of allowance of provident fund and ESIC dues are concerned, the same issue is covered in favour of the assessee by the decision of the Hon’ble jurisdictional High Court.

14. Accordingly, we are of the opinion that the ld. CIT(A) has no justification to exercise the jurisdiction u/s.263 on this issue.

15. As regards the depreciation on non compute fee is concerned, we find that the claim was duly made by the assessee in the computation of income. Hence, it cannot be said that the A.O. has not applied his mind on this issue. In this regard, we place reliance upon the case law from the Hon’ble jurisdictional High Court in the case of State Bank of India vs. ACIT (WP No. 271 of 2018 vide order dated 16.06.2018) for the proposition that when the A.O. allows a claim on the basis of computation of income, it cannot be said that the same has been done without application of mind. Furthermore, we find that the issue of depreciation on intangible assets in the nature of goodwill has been decided in favour of the assessee by the decision of Hon’ble Apex Court in the case of CIT vs. Smifs Securities Ltd. [2012] 348 ITR 302 (SC). Hence, the claim of the deprecation on non compete fee can be considered on the anvil of these case laws. Hence, the view adopted by the A.O. cannot be said to be not a possible one.

16. Hence, we are of the opinion that the view adopted by the A.O. was possible one. In this regard, we place reliance upon the decision of the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. vs. CIT (2000) 243 ITR 83 (SC) and CIT vs. Max India Ltd. (2007) 295 ITR 282 (SC) for the proposition that if there are two views possible and the A.O. has adopted one view, with which the ld. CIT is not in agreement, with the order cannot be said to be liable to be visited with the revisionary order by the ld. CIT u/s. 263. Accordingly, the order under 263 passed by the ld. CIT is hereby quashed. Accordingly, we decide the issue in favour of the assessee.

17. In the result, the assessee’s appeal is allowed.

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