Friday, March 31, 2017

Share premium isn’t part of capital employed for computing Sec. 35D deduction of preliminary exp: SC

The issue before the Supreme Court was as under:

Whether "Premium" collected by Company on its subscribed share capital was to be treated as "capital employed in the business of the Company" within the meaning of Explanation(b) of sub-section(3) to Section 35D so as to enable the Company to claim deduction of preliminary expenses as prescribed under Section 35D?Supreme Court held in favour of revenue as under:

The "premium amount" collected by the Company on its subscribed issued share capital could not be said to be the part of "capital employed in the business of the Company" inview of the following reasons:-

1) If the intention of the Legislature was to treat the amount of "premium" collected by theCompany from its shareholders while issuing the shares to be the part of "capitalemployed in the business of the company", then it would have been specifically said so inthe Explanation(b) to sub-section(3) of Section 35D of the Act. It was, however, not said so.

2) Section 78 of the Companies Act which deals with the "issue of shares at premium anddiscount" requires a Company to transfer the amount so collected as premium from theshareholders and to keep the same in a separate account called "securities premiumaccount". It does not anywhere say that such amount should be treated as part of capitalof the company employed in the business for one or other purpose, even under the
Companies Act.

3) Column III of the Form of Annual Return prescribed under the Companies Act whichdeals with capital structure of the company, provides "issued shares capital break up".This column does not include in it the "premium amount collected by the company from itsshareholders on its issued share capital". This is indicative of the fact that such amount isnot considered as a part of the capital, unless it is specifically provided for in the relevantsection. - [2017] 79 taxmann.com 450 (SC)
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