2025 (6) TMI 1479 - AT - Income Tax

Disallowance on account of pre-operating cost - Assessee argued these are revenue expenditure incurred in relation to expansion of business - HELD THAT - Mere nomenclature of the expense in the books cannot be the sole determinative factor of allowability of expense. It is trite law that mere nomenclature of entry in the books of accounts is not determinative of the true nature of transaction. Reliance can be placed on decision in India Discount Co. Ltd. 1969 (8) TMI 2 - SUPREME COURT Provincial Farmers (P) Ltd. 1976 (2) TMI 18 - CALCUTTA HIGH COURT and KCP Ltd. 2000 (8) TMI 3 - SUPREME COURT which have been considered in the case of Arvind Kumar Jain 2011 (9) TMI 363 - DELHI HIGH COURT - In the present case after going through the relevant evidence of so called pre-operating expenses it has been established that the payment made were on account of expansion of exiting business to new geographical area before is commercial exploitation. Thus corresponding grounds in both the years involve deserve to be sustained. Assessee argued if Assessee does not opt to amortize any revenue expense benefit of which is extending to future years the tax department cannot make any contrary tax treatment - By allowing 50% of the expenditure CIT(A) has itself appreciated that subject customer acquisition expenditure is revenue in nature. Further Hon ble Supreme court in the case of CIT v Excel Industries Ltd 2013 (10) TMI 324 - SUPREME COURT has held that where the tax rate in a given AY and its subsequent AY is same then the department should not continue with the litigation as it may not add anything to the public coffers. Hence in the present case also the expenditure incurred in relation to customer acquisition cost should be allowed to the Assessee in current AY and should not be deferred i.e. 50% of expense allowed by learned CIT(A). The corresponding ground deserves to be sustained.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Appellate Tribunal (AT) in these appeals are:

• Whether the pre-operative expenses incurred by the assessee relating to expansion of existing telecommunication business into new circles constitute revenue expenditure allowable under the Income Tax Act, 1961, or are capital in nature and thus require capitalization rather than being debited to the Profit & Loss Account.
• Whether the expenditure incurred on customer acquisition cost, claimed as revenue expenditure, is allowable in full in the relevant assessment years or requires apportionment over future years, and if disallowance is warranted, to what extent.
• Whether the nomenclature or classification of expenses in the books of accounts is determinative of their tax treatment.
• Whether the principles established by judicial precedents, including the Supreme Court rulings, support the allowability of such expenses as revenue expenditure under section 37(1) of the Income Tax Act.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Nature and Allowability of Pre-operative Expenses

Relevant Legal Framework and Precedents: The primary statutory provision considered is section 37(1) of the Income Tax Act, which allows deduction of any expenditure (not being capital expenditure or personal expenses) incurred wholly and exclusively for the purposes of the business. The Tribunal relied on precedents including Commissioner of Income Tax Vs. India Discount Co. Ltd. (75 ITR 191 SC), Commissioner of Income Tax Vs. Provincial Farmers (P) Ltd. (108 ITR 219 Cal), and KCP Ltd. Vs. CIT (245 ITR 421), as well as the Delhi High Court decision in Commissioner of Income-tax v Arvind Kumar Jain ([2012] 18 taxmann.com 132), which emphasize that the mere nomenclature of an expense in the books of accounts is not conclusive of its true nature.

Court's Interpretation and Reasoning: The Tribunal examined the facts that the pre-operative expenses were incurred for expansion of the existing telecommunication business into three new geographical circles (Northeast, Jammu & Kashmir, and Assam) and for introduction of new GSM technology in existing circles. The Tribunal noted that the new circles were launched in the relevant year itself and that the expenses were disclosed in the financial statements as revenue in nature.

The Tribunal rejected the AO's and CIT(A)'s view that these expenses were capital in nature, observing that no new asset was created post expenditure and that the expenses were incurred for expansion of the existing business rather than setting up a new business. It was emphasized that the true nature of the transaction must be determined by substance over form.

Key Evidence and Findings: The Tribunal relied on the detailed schedule of pre-operative expenses provided in the financial statements (Schedule "S" and Schedule "T"), which demonstrated that the expenses were incurred during the subject year and related to business expansion activities. No enquiry or finding suggested creation of a capital asset.

Application of Law to Facts: Applying the legal principle that revenue expenditure incurred wholly and exclusively for business purposes is allowable, the Tribunal held that these pre-operative expenses qualify as allowable revenue expenditure under section 37(1) of the Act.

Treatment of Competing Arguments: The AO and CIT(A) argued for capitalization based on the pre-operative nature of expenses, but the Tribunal found this approach unsustainable given the expansion context and absence of asset creation. The Tribunal also rejected reliance solely on the nomenclature of expenses in the books.

Conclusion: The Tribunal allowed the claim of pre-operative expenses as revenue expenditure and deleted the addition made by the AO and sustained by CIT(A).

Issue 2: Allowability of Customer Acquisition Cost

Relevant Legal Framework and Precedents: The issue concerned the deductibility of expenditure incurred on customer acquisition cost-specifically, the cost incurred to compensate distributors for selling handsets below cost price to promote telecommunication services. Section 37(1) of the Income Tax Act was again the governing provision. The Tribunal also considered the Supreme Court ruling in Taparia Tools Ltd. vs. JCIT (2015) 372 ITR 605 (SC), which was relied upon by the assessee, and CIT v Excel Industries Ltd. [(2013) 38 taxmann.com 100 (SC)], which addressed the treatment of expenditure when tax rates remain unchanged across years.

Court's Interpretation and Reasoning: The Tribunal noted that the AO did not doubt the genuineness or business purpose of the expenditure but disallowed the entire amount on the ground that the cost of prospective customers lacks certainty and should be apportioned over years. The CIT(A) upheld disallowance but restricted it to 50% of the expenditure.

The Tribunal found merit in the assessee's contention that if the assessee chooses not to amortize an expenditure whose benefit extends to future years, the tax authorities cannot impose a contrary tax treatment. It further held that since the CIT(A) allowed 50% of the expenditure, it implicitly recognized the revenue nature of the expense.

The Tribunal also invoked the principle from CIT v Excel Industries Ltd. that continued litigation in cases where tax rates remain the same across years may not enhance public revenue, suggesting that the expenditure should be allowed fully in the current assessment year.

Key Evidence and Findings: The Tribunal took into account the nature of customer acquisition cost as compensation to distributors for selling handsets below cost, which promotes business growth by increasing customer base.

Application of Law to Facts: Applying section 37(1), the Tribunal concluded that the expenditure is revenue in nature and wholly and exclusively incurred for business purposes. As such, the entire customer acquisition cost should be allowed as deduction in the year it was incurred.

Treatment of Competing Arguments: The AO's argument for apportionment and disallowance was rejected on the basis that the assessee's choice not to amortize cannot be overridden by the tax authorities. The Tribunal also found that the CIT(A)'s partial allowance was inconsistent with the legal position.

Conclusion: The Tribunal allowed the entire customer acquisition cost as revenue expenditure and deleted the disallowance made by the AO and partially upheld by CIT(A).

3. SIGNIFICANT HOLDINGS

The Tribunal established the following core principles and made final determinations on the issues:

• "Mere nomenclature of the expense in the books of accounts is not the sole determinative factor of allowability of expense." The true nature of the transaction must be examined in substance over form.
• Pre-operative expenses incurred for expansion of an existing business into new geographical areas and introduction of new technology, without creation of a new capital asset, qualify as revenue expenditure allowable under section 37(1) of the Income Tax Act.
• Expenditure on customer acquisition cost, even if benefiting future years, is allowable as revenue expenditure in the year incurred if the assessee does not opt for amortization; the tax authorities cannot impose a contrary treatment.
• The Tribunal invoked the Supreme Court's guidance that continued litigation in cases where tax rates remain unchanged may not be beneficial to public revenue, supporting the allowance of expenditure in the current year.
• Consequently, the Tribunal allowed both the pre-operative expenses and the customer acquisition costs as revenue expenditure, deleting the additions made by the Assessing Officer and sustained by the Commissioner of Income Tax (Appeals).