ADDL.C.I.T. RG.16, MUMBAI vs. TOTAL PETROLEUM INDIA LIMITED, MUMBAI

This is an appeal filed by the Revenue against the order of CIT(A) dated 25.07.2011, for the assessment year 2000-01, in the matter of order passed u/s. 143(3) of the Income tax Act, 1961.

In this appeal, revenue is aggrieved by the action of the CIT(A) deleting disallowance of depreciation, fees paid to ROC, commission expenses and development expenses.

It was argued by the learned DR that without controverting the detailed finding given by the AO disallowing the above expenditure, the M/s. Total Petroleum India Ltd.

On the other hand, the learned AR relied on the written submissions filed before the AO, CIT(A) and the order passed by the CIT(A).

We have considered the rival contentions and carefully gone through the orders of the authorities below. The assessee is in the business of blending and sale of automotive oils and greases etc. During the year under consideration, the assessee acquired business of Fina India Petroleum Pvt. Ltd (Fina) at the close of business hours on 31st March, 2000. The assessee in its return of income claimed depreciation on assets taken over from Fina. The AO disallowed the claim of depreciation holding that assets taken over from Fina could not be said to have been put to use since the assets had been acquired at the close of business hours on 31st March 2000. The AO further held that the depreciation claimed on assets taken over from Fina had been inflated as the assessee claimed depreciation on book value instead of WDV as appearing in the tax audit report of Fina.

Without controverting the findings of the AO, the CIT(A) allowed assessee‟s claim of depreciation. It was argued by the learned AR that the acquisition of assets made prior to close of business hours on 31st March 2000 and on a going concern basis (refer sale and Purchase agreement on M/s. Total Petroleum India Ltd.

We have considered the rival contentions and do not find any merit in the action of the CIT(A) in allowing assessee‟s claim for depreciation, when the assets were acquired at the close of business hours on 31st March 2000. Thus, use of asset was not shown by the assessee for even a single day. Accordingly, we confirm the action of the AO for disallowing assessee‟s claim of depreciation and direct the AO to consider the WDV of the assets acquired from Fina while allowing assessee‟s claim of deprecation in the subsequent assessment year 2001-02. We direct accordingly.

The AO has disallowed assessee‟s claim of ROC fees. The CIT(A) has deleted the disallowance by observing that the ROC fee was debited to Profit and loss account during the A.Y 1999-2000 and was reported in the Tax Audit Report in the AY 1999-2000 (refer Page D1 of the paper-book). As the same was not claimed during the year under consideration, the disallowance was correctly deleted by the learned CIT(A).

We have considered the rival contentions. There appears to be confusion with regard to claim of ROC fees in the profit & loss account during the year under consideration. As per learned AR, expenditure was not M/s. Total Petroleum India Ltd.

The AO has also disallowed assessee‟s claim of commission by observing that no details of commission paid was filed by the assessee inspite of giving opportunity. However the learned CIT(A) has deleted the disallowance without controverting this finding of the AO.

It was contended by learned AR that assessee submitted 28 sample agreements with C&F agents (refer page G1 to G339). The comparison/ratio considered by the AO is erroneous as has considered the cash discount component as commission. The correct comparison/ratio shows the commission to be is in line with the preceding year‟s as can be observed from Page F2 of the paper-book. Hence, the commission expenditure were correctly allowed by the learned CIT(A).

As there is contradiction in the findings recorded by AO vis-à-vis submission of assessee and moreover when no positive findings for deleting the disallowance was recorded by CIT(A), we set aside the order of CIT(A) and restore the issue back to the file of the AO for deciding afresh after

The AO has also disallowed provision of advertisement and publicity expenses, which was deleted by the CIT(A) after observing that in view of the decision of Hon‟ble Supreme Court in the case of Rotork Controls India 314 ITR 62, the same is allowable. However, no factual finding was recorded by the CIT(A) to the effect that these expenses were actually incurred so as to entitle the assessee to claim the same on accrual basis. It was contended by the learned AR that the assessee provided for advertisement and publicity expenses based on the expected outflows and past trends. He also relied on the judgment of Hon‟ble Supreme Court in the Rotork Controls (supra) and the decision of the Hon‟ble Punjab & Haryana High Court in the case of Carrier Air-Conditioning and Refrigeration.

In the result, the appeal of revenue is allowed for statistical purposes.