IN THE ITAT MUMBAI BENCH ‘SMC’

Skyline Caters (P.) Ltd.

v.

Income-tax Officer, Ward-8(3)2

K.C. Singhal, Judicial Member

IT Appeal No. 2965 (Mum.) of 2007

[Assessment year 2003-04]

December 28, 2007

Section 32 of the Income-tax Act, 1961 - Depreciation - Allow­ance/Rate of - Assessment year 2003-04 - Whether expression ‘any other business or commercial rights of similar nature’ appearing in clause (ii) of section 32(1) would include such rights which can be used as a tool to carry on business - Held, yes - Asses­see-company was engaged in business of providing catering, house-keeping and allied services to a company HLL - Such catering business was earlier carried on by one ‘R’ under a catering con­tract with HLL for last 30 years - Assessee entered into an agreement with ‘R’ for taking over catering contract of ‘R’ with HLL against a consideration of Rs. 27 lakhs - Out of said sum, assessee paid a sum of Rs. 25 lakhs to ‘R’ as a consideration for acquir­ing all rights under catering contract between ‘R’ and HLL as well as certain assets belonging to ‘R’ and balance sum of Rs. 2 lakhs was paid to ‘R’ on account of not to compete with assessee - Assessee further reflected total amount of Rs. 27 lakhs in its balance sheet as goodwill and claimed depreciation thereon treat­ing same as intangible assets as well as commercial rights ac­quired by it - Assessing Officer held that goodwill did not find place in section 32 as part of intangible assest and, therefore, disallowed assessee’s claim for depreciation - Whether since amount paid by assessee to ‘R’ related to acquisition of all rights under catering contract between ‘R’ and HLL as well as all articles and paraphernalia belonging to ‘R’, it could not be said that said payment was on account of goodwill - Held, yes - Wheth­er, therefore merely because assessee showed said payment on account of goodwill in books of account, no adverse inference could be drawn against assessee - Held, yes - Whether, therefore, rights acquired by assessee being under catering contract along with articles and paraphernalia lying in canteen of HLL which were tangible assets, same would be eligible for depreciation under clause (i) of section 32(1), and value of same would have to be ascertained by Assessing Officer and balance amount would be allocated for intangible asset for purpose of granting deprecia­tion under clause (ii) section 32(1) - Held, yes

Rule of Ejusdem Generis

Words and phrase : Expression any other business or commercial rights of similar nature, as appearing in clause (ii) of section 32(1) of the Income-tax Act, 1961

Facts

The assessee-company was engaged in the business of providing catering, house-keeping and allied services to a company HLL. Such catering business was earlier carried on by one ‘R’ under a catering contract with HLL for the last 30 years. The assessee entered into an agreement with ‘R’ on 16-8-2000 for taking over the catering contract of ‘R’ with HLL against a consideration of Rs. 27 lakhs. Out of the said sum, the assessee paid a sum of Rs. 25 lakhs to ‘R’ as a consideration for acquiring all the rights under the catering contract between ‘R’ and HLL and balance sum of Rs. 2 lakhs was paid to ‘R’ for not competing with the asses­see. The assessee reflected the said amount of Rs. 27 lakhs in its balance sheet as goodwill and claimed depreciation thereon treating the same as intangible assets as well commercial rights acquired by it. The Assessing Officer held that the goodwill did not find place in section 32 as part of intangible assest which included only know-how, patents copyrights, trade marks, etc. He further held that the expression ‘similar nature’ in section 32(1)(ii) would not include the goodwill. He, therefore, disal­lowed the assessee’s claim for depreciation.

On appeal, the Commissioner (Appeal) held that the entire payment of Rs. 27 lakhs was paid to ‘R’ for not competing with the assessee, which amounted to capital expenditure not covered by section 32(1)(ii). The Commissioner (Appeals), therefore, upheld the action of the Assessing Officer.

On second appeal :

Held

It is well-settled that the nomenclature given to the entries in the books of account is not relevant for ascertaining the real nature of the transaction. The nature of transaction should be ascertained on the basis of the agreement between the parties. [Para 5]

A combined reading of the agreement dated 16-8-2000 entered into between the assessee and ‘R’ revealed that the assessee had paid the sum of Rs. 25 lakhs for acquiring all the rights under the catering contract between ‘R’ and HLL as well as certain assets belonging ‘R’. On the other hand, a sum of Rs. 2 lakhs had been paid on the ground that ‘R’ would not compete with the assessee either by himself or through his agents in any business of catering at HLL canteen. Therefore, the Commissioner (Appeals) was not justified in holding that the entire sum of Rs. 27 lakhs was paid to ‘R’ for not competing with the assessee. The payment of Rs. 25 lakhs was specifically made for acquiring all the rights under the catering contract between ‘R’ and HLL and for acquiring articles and paraphernalia belonging to ‘R’, which were lying in the canteen. Since the payment related to the acquisi­tion of rights under the contract, it could not be said that payment was either on account of goodwill or on account of not to compete with the assessee. Further, merely because the asses­see showed the said payment on account of goodwill in the books of account, no adverse inference could be drawn against the asses­see. [Para 7]

The Commissioner (Appeals) had relied upon the agreement dated 16-8-2000 to point out that there was no obligation on ‘R’ to get the contract transferred and infact ‘R’ could not have done it legally. No adverse inference could be drawn on this ground. In the commercial agreements when the rights under the contract are transferred, mutual understanding is usually arrived at between the parties in such a way that joint efforts are made to make the transaction and agreement effective. No doubt, the assessee was required to obtain the confirmation of HLL, but at the same time ‘R’ was required to assist the assessee in getting the contract transferred in the assessee’s name. The agreement also provided that ‘R’ would inform HLL that he was still involved in the assessee-company. All this arrangement was made in order to get the said catering contract transferred in the name of asses­see so as to make the agreement effective. That did not mean that payment was not made for acquiring the rights under the contract. The substance of the agreement was to acquire all the rights in the contract. Accordingly, it was to be held that the payment of Rs. 25 lakhs was made by the assessee for acquiring all the rights in the said contract as well as all the articles and paraphernalia belonging to ‘R’, which were lying at the canteen. [Para 8]

A perusal of the provisions section 32(1)(ii) shows that the Legis­lature has specified certain intangible assets on which deprecia­tion can be claimed, namely, know-how, patents, copyrights, trade­marks, licences, franchises. These specific intangible assets are followed by the expression ‘any other business of commercial rights of similar nature’. The expression mentioned above by itself would include all kinds of commercial rights, but for the words ‘similar nature’. In such a situation, the rule of Ejusdem Generis would apply. The scope of the rule is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified. The general words take the colour from the specific words. The specific words in the above section reveal the similarity in the sense that all the intangible assets speci­fied are tools of the trade, which facilitate the assessee carry­ing on the business. Therefore, the expression ‘any other busi­ness or commercial rights of similar nature’ would include such rights which can be used as a tool to carry on the business. If this test was to be applied, then the rights acquired by the assessee under the catering contract between ‘R’ and HLL would fall within the expression mentioned above. Further, since cater­ing business at HLL canteen could be carried on only with the help of such rights under the contract, the assessee would be entitled to depreciation. [Para 9]

Since the assessee had not only acquired the rights under the contract but also articles and paraphernalia lying in the canteen of HLL as stated in the agreement and further since such articles being tangible assets would be eligible for depreciation under the clause (i) of section 32(1), the value of the same would have to be ascertained by the Assessing Officer and the balance amount would be allocated for the intangible asset for the purpose of granting depreciation under clause (ii) of section 32(1). [Para 10]

Therefore, the impugned order passed by the Commissioner (Ap­peals) was set aside and the Assessing Officer was directed to allow depreciation to the assessee in the light of the aforesaid.

Cases referred to

Bharatbai J. Vyas v. ITO [2005] 97 ITD 248 (Ahd.) (para 3), CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC) (para 3), Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC) (para 5).

J. Mistri and M.A. Gohel for the Appellant. Shishir Srivastava for the Respondent.