M/S. HEALTHCARE GLOBAL ENTERPRISES LIMITED,BANGALORE vs. JOINT COMMISSIONER OF INCOME TAX,, BANGALORE

The grounds raised by the assessee in both years are as under. Grounds raised for Assessment Year 2009-10 in ITA No. 1900/Bang/2016 “1. The learned AO and CIT(A) have erred in disallowing the entire expenditure of Rs. 25,00,000/-towards due diligence audit for equity related investment to be made by investors on the contention that expenditure has not been incurred by your appellant, by holding that the liability to pay the said expenditure was not that of the appellant company and also concluding that the same was capital in nature; 2. The learned AO and CIT(A) grievously erred in denying carry forward of business losses of previous years of Rs.2,00,60,988/- by invoking the provisions of section 79 of the Income Tax Act, 1961, on the ground that 51% voting power in the appellant company as at 31 March 2009 was not held by persons holding 51% of the voting power in the years in which the losses were incurred; and 3. For these and other grounds that may be adduced at the time of hearing, the order of the Joint Commissioner of Income Tax, to the extent upheld by the CIT(A), may be set aside and this appeal be allowed.”

Regarding ground no. 1 in Assessment Year 2009-10, it was submitted by ld. AR of assessee that the disallowance made is not justified. He submitted that in Para no. 4 of the order of CIT (A), he has noted various judgments on which reliance was placed by assessee before the CIT (A). In addition to those judgments, he placed reliance on a Tribunal order rendered in the case of ACIT vs. Intercontinental Hotels Group India (P.) Ltd. as reported in 57 SOT 120

We have considered the rival submissions. We find that it is noted by CIT (A) in Para no. 4.1 of his order that the assessee company had sought private equity investment from different investors and the prospective investors had conducted various audits and due diligence study to ensure the viability of such investment. It is also noted by CIT(A) that M/s. Napean Trading and Investment Co Pvt. Ltd. was engaged by the prospective investors for making such due diligence study and the assessee had apparently reimbursed the expenses incurred in this regard to the investors. From these facts, it comes out that the expenses in question are incurred in respect of increase in capital base of the assessee company. Under these facts, the judgment of Hon’ble Apex Court rendered in the case of Brooke Bond India Ltd. vs. CIT (Supra) is squarely applicable and as per this judgment, the expenses relatable to increase in Share Capital are not allowable as revenue expenditure because the same are capital expenditure. Now, we examine the applicability of the Tribunal order cited by ld. AR of assessee having been rendered in the case of ACIT vs. Intercontinental Hotels Group India (P.) Ltd. (supra). In that case, as per the facts noted by the Tribunal, it is noted that the assessee’s business model was to provide various support services to its parent company located in USA and the concerned Services Agreement clearly provides that the assessee company would be reimbursing the expenditure incurred with a markup of 8%. It is also noted that in the course of service provided to the parent company which is in the hotel business, the assessee has availed the services of Control Risk Group, Singapore in order to carry out the due diligence and risk analysis of the target hotels. Under these facts, it was held by CIT (A) in that case that these expenses are incurred in the normal course of business and accordingly, are revenue in nature. Under these facts the Tribunal confirmed the order of CIT (A) in that case. In the present case, the facts are totally different. In the present case, due diligence was not carried out in regular course of business

Regarding various other judgments on which reliance has been placed before CIT (A) as noted by CIT (A) in Para no. 4 of its order, it is seen that in none of these cases, the expenditure was in respect of inviting investment from prospective investors and therefore, these judgments are not applicable in the present case. Hence respectfully following this judgment of Hon’ble Apex Court rendered in the case of Brooke Bond India Ltd. vs. CIT (Supra), we decline to interfere in the order of CIT (A) on this issue. Ground no. 1 of the assessee’s appeal for Assessment Year 2009-10 is rejected.

Regarding ground no. 2 in Assessment Year 2009-10, it was submitted that the facts are noted by CIT(A) in Para no. 6.1 of his order as per which, this is the basis of decision of authorities below that the Assessing Officer has taken into consideration the shareholding pattern in the company for Assessment Years 2008-09 and 2009-10 and had inferred that the key shareholders who held around 51.44% of the shares during the Assessment Year 2008-09 were holding less than 50% of the shares during the subsequent year. He submitted that the details of shareholders as on 31.03.2008 is available on pages 28 and 29 of the paper book and the same for year ending on 31.03.2009 is available on pages 30 and 31 of paper book. He submitted that as on 31.03.2008, Dr. BS Ajai Kumar was holding 38.81% and India Development Fund of IDFC PE was holding 29.41% of the shares total of which comes to 68.22%. He pointed out that the share holding of these two persons as on 31.03.2009 was 31.83% and 24.07% respectively total of which comes to 55.90%. He submitted that at least to the extent of 55.90% of the total shareholding, the shareholders are common. He drawn our attention to provisions of section 79 of the IT Act as per which if 51% of shareholders is same on the last day of the year in which loss was incurred and on the last day of year in which set off of loss is being claimed, set off is to be allowed. He submitted that as per the provisions of section 79 of the IT Act and in the facts of the present case, set off of brought

We have considered the rival submissions and gone through the orders of authorities below. We find that the AO has invoked the provisions of section 79 of the IT Act for the purpose of disallowing the set off of brought forward business loss and depreciation. In the facts of the present case as noted above, we find that more than 51% of shares, in fact, to the extent of 55.90% of the total shares, only two persons were holding those shares as on 31.03.2008 being the year in which loss was incurred and as on 31.03.2009 being the year in which the set off of brought forward depreciation is being claimed and hence, the claim of the assessee cannot be disallowed by invoking the provisions of section 79 of the IT Act. Therefore, on this issue, we decide the issue in favour of the assessee. This ground of the assessee is allowed.

In the result the appeal of the assessee for Assessment Year 2009-10 is partly allowed.

Now we take up the appeal of the assessee for Assessment Year 2010-11. The only issue involved in this year is regarding denial of carry forward of unabsorbed depreciation loss of Rs. 3,70,22,124/- u/s. 72A of the IT Act on the ground that the amalgamating company, M/s. Banashankari Medical Oncology Research Centre Limited (BMORCL) is not an industrial undertaking as per the provisions of the said section. Regarding this issue, it was submitted by ld. AR of assessee that in respect of the provisions of section 72A of the IT Act, clause (aa) of sub section 7 of section 72A is relevant which says that the company owning an industrial undertaking or a ship or a hotel with another company, then, notwithstanding anything contained in any other provision of this Act, the accumulated loss and the unabsorbed depreciation of the amalgamating company shall be deemed to be the loss or, as the case may be, allowance for depreciation of the amalgamated company for the previous year in which the amalgamation was effected. Thereafter he submitted that the term “industrial undertaking” is defined in clause (aa) of sub section 7 of section 72A as per

As against this, ld. DR of revenue supported the orders of authorities below. He placed reliance on a judgment of Hon’ble madras High Court rendered in the case of ACIT Vs. Apollo Hospitals Enterprises Ltd. as reported in 171 TAXMAN 397.

We have considered the rival submissions. First of all, we reproduce the provisions of sub section 1 and 7 of section 72A of the IT Act, 1961. The same are as under. Provisions relating to carry forward and set off of accumulated loss and unabsorbed depreciation allowance in amalgamation or demerger, etc. 72A. (1) Where there has been an amalgamation of— (a) a company owning an industrial undertaking or a ship or a hotel with another company; or (b) a banking company referred to in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) with a specified bank; or (c) one or more public sector company or companies engaged in the business of operation of aircraft with one or more public sector company or companies engaged in similar business,then, notwithstanding anything contained in any other provision of

From the above provisions, it comes out that in order to hold that the accumulated loss and the unabsorbed depreciation of the amalgamating company shall be deemed to be the loss of the amalgamated company, it has to be seen that it is the case of amalgamation of a company owning an industrial undertaking as has been defined as per clause (aa) of sub section 7 of section 72A as reproduced above. As per this definition, it has to be seen that the undertaking should be engaged in manufacture or processing of goods. In our considered opinion, an undertaking to be considered as an industrial undertaking, the total activities of the undertaking should be that of manufacturing or processing of goods and even if the undertaking is engaged in some other activities also, the primary activity of the said undertaking should be that of manufacturing or processing of goods. As per the judgment of Hon'ble Karnataka High Court rendered in respect of merger of M/s. Banashankari Medical and Oncology Research Centre Pvt. Ltd. with the assessee company available on pages 72 to 86 of paper book, it is noted in Para no. 2 of the judgment that this company M/s. Banashankari Medical and Oncology Research Centre Pvt. Ltd. is having main object to carry on the business of establishing developing, leasing, managing, operating and running of medical service centers such as nursing care homes, hospitals, polyclinics, health resorts, health clubs, in-patient and out-patient wards, laboratories, therapy units, theaters and allied consultation centers etc. amongst others. Now in the light of these facts, we examine the applicability of various judgments cited before us by ld. AR of assessee.

The first judgment cited before us is judgment of Hon’ble Apex Court rendered in the case of ITO vs. Arihant Tiles and Marbles P. Ltd. (supra). In that case, the assessee company was engaged in the business of manufacture/ production of polished slabs and tiles which the assessee exported (partly). The question before Hon’ble Apex Court was this as to whether the activities

The second judgment cited before us is the judgment of Hon'ble Karnataka High Court rendered in the case of CIT v. Datacons (P) Ltd. (supra). In that case, the issue was this as to whether processing of basic data for customers on computer machines amounts to ‘processing of goods’ and company engaged in this activity is an industrial company. Under these facts, it was held that the company is an industrial company and such activity amounts to processing of goods. In the present case, as per the main objects of the amalgamating company noted by Hon'ble Karnataka High Court in its judgment in respect of merger of that company with the assessee company, copy available on page no. 74 of the paper book, the assessee has not carried out any such activity and the only activity which can be said to be near to this activity is the activity of laboratories where for the purpose of carrying out certain diagnostic tests, it can be said that some processing is involved but this is not a primary activity. Therefore, this judgment also is not applicable.

The next judgment cited before us is a judgment of Hon’ble Madras High Court rendered in the case of CIT Vs. Commercial Laws of India (P.) Ltd. (supra). In that case, the assessee company was publisher of fortnightly journal and actual printing was done by a different concern and assessee was engaged in folding and stitching of printed sheets so as to be used as parts of journal which were later on dispatched to subscribers. Under these facts, it was held that the assessee was engaged in processing of goods. We have already seen that the only activity of the amalgamating company which can be equated with processing of goods is regarding its activity of laboratory but this is not a primary activity of the amalgamating company. Therefore it cannot be said that the amalgamating company is an industrial undertaking.

The next judgment cited before us is judgment of Hon’ble Gujarat High Court rendered in the case of CIT Vs. Suresh Amin Family Trust (supra). In that case, the assessee was engaged in a profession of pathological laboratory and under these facts, it was held that the assessee was carrying on a business as an industrial undertaking, which produced an article or thing and was thus entitled to investment allowance u/s. 32A of the Act on the new machinery installed in the clinic. Hence it is seen that in that case, the entire activity of the assessee was pathological laboratory and not a small portion of the total activities was laboratory as in the present case and therefore, for the same reasons that laboratory in the present case is not a primary activity of the amalgamating company, this judgment is also not helping the assessee in the present case.

The ld. AR of assessee has furnished certain additional evidences being copy of order dated 30.09.2015 passed by the Commissioner of Central Excise which is available on pages 232 to 285 of paper book. It was submitted by ld. AR of assessee that as per this order, it was held by Commissioner of Central Excise that in respect of FDG cleared by the assessee company, excise duty is payable. He submitted that even excise duty is payable on some products being sold by the assessee and therefore, it has to be accepted that the assessee is engaged in manufacture of goods or processing of goods. It was

Regarding this contention, we find that even if it is held that the assessee is engaged in small activity of some manufacturing also, it cannot be said that the assessee is an industrial undertaking because in our considered opinion, as per the definition of term industrial undertaking as per clause (aa) of sub section 7 of section 72A, the primary activity of the assessee undertaking should be of manufacture and processing of goods and merely because a supporting or ancillary activity is such, it cannot be said that it is an industrial undertaking. Hence, even after considering the additional evidence, the assessee does not get any help.

Now we consider the applicability of the judgment cited by ld. DR of revenue rendered in the case of ACIT Vs. Apollo Hospitals Enterprises Ltd. (supra). In this case, the issue before Hon’ble Madras High Court was the same as in the present case as to whether the hospital can be considered as an industrial undertaking under clause (aa) of sub section 7 of section 72A of the IT Act. In that case, a scheme was approved to amalgamate M/s. Deccan Hospital Corporation Limited (in short ‘DHCL’), running a Hospital at Jubilee Hills, Hyderabad with the assessee company i.e. Apollo Hospitals Enterprises Ltd. of Chennai and the issue in dispute was regarding the set off of unabsorbed depreciation of Rs. 11.60 crores on account of amalgamation of DHCL with Apollo Hospitals Enterprises Ltd. and it was held by Hon’ble Madras High Court that neither Apollo Hospitals Enterprises Ltd. nor DHCL are industrial undertaking within the meaning of section 72A of the IT Act and therefore, the set off of unabsorbed depreciation is not allowable. Respectfully following this judgment of Hon’ble Madras High Court, we decline to interfere in the order of CIT (A). Accordingly this ground is rejected.

In the result, the appeal filed by the assessee for Assessment Year 2010-11 is dismissed.

In the combined result, the assessee’s appeal for Assessment Year 2009-10 is partly allowed whereas the appeal for Assessment Year 2010-11 is dismissed.