SSP PVT. LTD.,FARIDABAD vs. ACIT CIRCLE-2(1), FARIDABAD

The first issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in confirming the disallowance made on account of advocate fees of Rs 2,01,000/- for preparation of share purchase agreement in the facts and circumstances of the instant case.

We have heard the rival submissions and perused the materials available on record. The assessee is engaged in the business activities in manufacturing of engineering goods. During the year under consideration, the assessee paid fees to advocate of Rs 2,01,000/- for drafting share purchase agreement related to business towards acquisition of 100% shares of Prosoya Inc. Canada. It was submitted by the assessee that the said acquisition was made for furtherance of business of the assessee as the said company is also in the same line of business with that of the assessee company herein. This fact is not in dispute before us. The ld. AO however held that since the share purchase agreement is meant for purchase of shares of some company in Canada, the professional fee paid to advocate would be capital in nature and accordingly not allowable as deduction. The ld. CIT(A) observed that the assessee had paid the advocate fees in order to acquire a new source of business income and accordingly upheld the action of the ld. AO. Before us, the ld. AR vehemently pleaded that the ld. CIT(A) grossly erred in stating that the assessee had acquired a new source of business income, as the acquired company was also in the same line of business with that of the assessee company. We find the fact that acquired company is also in the same line of business of the assessee company is not disputed by the revenue before us. Hence we are in agreement with the ld. AR that the said acquisition of shares of Prosoya Inc. Canada is only for furtherance of existing business of the assessee and improving the profitability of the assessee company. Hence the professional fees paid to advocate for drafting the share purchase agreement to facilitate the aforesaid acquisition cannot be held as capital in nature and would be squarely allowable as revenue expenditure. We find that the ld. DR before us placed reliance on the decision of Hon’ble Supreme Court in the case of Punjab State Industrial Development Corpn Ltd vs CIT reported in 225 ITR 792 (SC). We find that this decision was rendered in the Page | 2 context of allowability of ROC fees paid for enhancement of authorized capital of a company which was held as capital in nature. This decision in our considered opinion is factually distinguishable. In any event, the issue in dispute is squarely covered by the decision of Bangalore Tribunal in the case of Manipal Health Group dated 27.6.2018 which in turn relied on the decision of Hon’ble Delhi High Court in the case of CIT vs Priya Village Road Shows Ltd reported in 332 ITR 594(Del). The Hon’ble Delhi High Court had held that if an expenditure is incurred for preparation of feasibility report of a new project which is in respect of same business which is already carried on by the assessee, even if it is for expansion of business, namely, to start a new unit which is same as earlier business, and there is unity of control and common fund, then such expenditure is to be treated as revenue expenditure. In such a case, whether a new business/asset comes into existence or not would become a relevant factor. If there is no creation of a new asset, then the expenditure incurred would be of revenue nature. However, if the new asset comes into existence which is of enduring benefit, then such expenditure would be of capital nature. The assessee in the instant case before us had merely acquired the shares of Canadian company which is in the same line of business and for facilitating this acquisition , share purchase agreement was drafted by the advocate , to whom fee is paid by the assessee. Hence this advocate fee would be squarely allowable as revenue expenditure. Accordingly, the Ground Nos. 2 and 3 raised by the assessee are allowed.