Who is an eligible assessee for the purpose of this section?
An eligible assessee for the purpose of section 35D includes Indian Companies or a person other than a company who is a resident of India.
What is the purpose for which preliminary expenses should be incurred?
As discussed above, preliminary expenses should be incurred for the purpose of:
- Commencing a new business
- Extending an existing business- setting up a new undertaking
What are the preliminary expenses that are eligible to be amortized?
Expenditure that is incurred in connection with the following:
- Preparation of feasibility reports, project reports, market survey reports, engineering service reports
- Legal charges for drafting necessary agreements for the purpose of carrying out business
- Legal charges for drafting Memorandum of Association and Articles of Association
- Charges for printing the above documents
- Charges incurred for registering the company with the ROC
- Underwriting commission, brokerage, and charges paid in connection with the issue of shares and debentures or issue of the prospectus
- Any other expenses as may be prescribed and not deductible under any other section.
What is the extent of deduction allowed?
The deduction allowed shall be lower of actual expense incurred or:
- 5% of the cost of a project (cost of project= cost of fixed assets as on the last day of the previous year)
- 5% of capital employed- applicable to a company (capital employed= paid up capital+debentures+long term borrowings as on the last day of the previous year)
- The amount so calculated above shall be allowed as a deduction equally over a period of 5 years.
What is the difference between Income Tax Act and accounting treatment as per AS 22?
Income Tax Act mandates the preliminary expenses to be amortized equally over a period of 5 years. But the accounting treatment prefers amortization wholly within the same year. This leads to a timing issue in taxation where the taxpayer is offering more income to tax and will pay less tax in future (since 1/5th of deduction is allowed over 5 years).
Therefore, there will be the creation of a Direct Tax Asset (DTA) for the preliminary expenses to be amortized and the taxpayer should keep this in mind.
What happens to the unamortized expenses in case of a merger or a demerger?
In the event of a merger or a demerger, the merged company of a resultant company will be allowed to amortize the remaining amount of preliminary expenses over the remaining years.