In
the ITAT, Mumbai Bench ‘H’
Enercon
Wind Farms (Krishna) Ltd.
v.
Assistant
Commissioner of Income-tax, Range-8(1) (Mumbai)
J.
SUDHAKAR REDDY, ACCOUNTANT MEMBER
AND
RAJPAL YADAV, JUDICIAL MEMBER
IT
Appeal No. 6794 (Mum.) of 2004
[Assessment
year 2001-02]
December
28, 2007
Section 10B, read with sections 2(45), 28 and 72 of the Income-tax Act, 1961 - Export oriented undertaking - Assessment year 2001-02 - Whether term ‘total income’ used in section 10B(1) is total income as computed under Act - Held, yes - Whether, therefore, total income determined in terms of section 10B(1) has to be treated as determined in terms of section 28 - Held, yes - Assessee, a domestic company, was engaged in business of exporting components of wind turbine generators manufactured by it - For relevant assessment year assessee in computation of its income had shown business income of Rs. 70,38,585 and after set off of unabsorbed depreciation of Rs. 2,61,656 determined profits at Rs. 67,76,929 - Further assessee claimed exemption of Rs.62,10,828 under section 10B and, thus worked out, taxable income at Rs. 5,66,101 - Out of this assessee claimed set off of loss of Rs. 5,66,101 out of loss of Rs. 7,55,789 incurred in the assessment year 1999-2000 and, thus, declared taxable income at nil - Assessing officer denied claim of set off of loss of Rs. 5,66,101 on ground that in view of provisions of section 10B(6)(ii), brought forward losses were not eligible to be set off against income available in impugned assessment year - Commissioner (Appeals) though agreed with assessee that provisions of section10B(6) would not be applicable to instant case, but held that assessee’s claim was hit by provisions of section 10B(1) read with section 72 - He further held that since assessee profits were determined in terms of section 10B(1) and were not determined under head “Profits and gains of business or profession” or within terms of section 28, assessee was not entitled to set off of loss in question - Whether both lower authorities had not decided issue correctly - Held, yes - Whether since assessee had claimed set off of loss in question in accordance with relevant provisions of Act, assessee’s claim for set off of loss deserved to be allowed - Held, yes
Words and phrases:
The term ‘total income’ as appearing in section 5 and section 10B(1)
of the Income-tax Act, 1961
The term ‘relevant assessment years’ as appearing in clause (v) of
Explanation 2 to section 10B
The assessee, a domestic company was engaged in the business of exporting components of wind turbine generators manufactured by it. For the relevant assessment year, the assessee in the computation of its income had shown business income of Rs. 70,38,585 and after set off of unabsorbed depreciation of Rs. 2,61,656 determined the profits at Rs. 67,76,929. Further the assessee claimed exemption of Rs. 62,10,828 under section 10B and, thus worked out the taxable income at Rs. 5,66,101. Out of this the assessee claimed set off of loss of Rs. 5,66,101 out of loss of Rs. 755,789 incurred in the assessment year 1999-2000 and thus declared the taxable income at nil. The assessing officer denied the claim of set off of loss of Rs. 5,66,101 on the ground that in view of provisions of section 10B(6)(ii), the brought forward losses were not eligible to be set off against the income available in the impugned assessment year.
On appeal, the Commissioner (Appeals) though agreed with the assessee that the provisions of section 10B(6) would not be applicable to the instant case, but held that the assessee’s claim was hit by the provisions of section 10B(1) read with section 72. He further held that since the assessee’s profits were determined in terms of section 10B(1) and were not determined under the head “Profits and gains of business or profession” or within the terms of section 28, the assessee was not entitled to set off of loss in question. He rejected the contention of the assessee that it, infact had computed the profits under section 28 and were taxable under the head “Profits and gains of business or profession” and only a deduction under section 10B(1) was claimed.
On second appeal:
Section 10B(1) provides for deduction of such profits and gains as are
derived by a 100 per cent export oriented undertaking from the total income of
the assessee for a period of ten consecutive assessment years, starting from
the previous year in which such undertaking begins manufacture of production
for export of articles or things or a computer software. Though this section
falls in Chapter III of the Act, which consists of incomes which do not form
part of total income, in its wisdom, the legislature provided that as far as
section 10B is concerned, the assessee shall get only a deduction from the
total income. [
A perusal of the definition of “total income” given in section 2(45) makes it clear that it means income referred to in section 5 and computed in the manner laid down in the Act. A perusal of section 5 gives the scope of total income and it includes all incomes from whatever source derived, which is received or deemed to be received, accrues or arises or deemed to accrue or arise to a person both inside India and outside India. Further, the term “total income” appearing in section 10B(1) is total income as computed under the
Act. [
The starting words of section 10B(6) refers to term “relevant assessment
years”. This term is defined in clause (v) of Explanation 2
section 10B to mean “any assessment years falling within the period of 10
consecutive assessment years referred to in section 10B”. Section 10B(6) refers
to computation of total income of the assessee for the previous years and
assessment years which immediately succeed the relevant assessment years as
also the subsequent previous years and assessment years. A plain reading of
clause (v) of Explanation 2 to section 10B with section 10B(6) clearly
shows that this section is not relevant while computing deduction under section
10B. The entire section 10B(6) refers to computation of total income after the
tax holiday period of 10 years. The legislature in section 10B(6)(i)
provided that deductions of depreciation under section 32, investment allowance
under section 32A, development rebate under section 33, expenditure on
scientific research under section 35, bonafide expenditure incurred for the
purpose of family planning amongst his employees under section 36(1)(ix),
shall not be claimed after the expiry of the tax holiday period, when they
pertained to the assessment years and previous years within the tax holiday
period. Thus, clause (i) of section 10B(6) provides that these
deductions should be taken as given full effect to. Similarly, clause (iii)
of section 10B(6) provides that the assessee shall not claim once again
deduction for the same profits of the tax holiday period either under section
80HH or under section 80HHA or under section 80I, etc. In clause (iv) of
section 10B(6) it is clearly provided that the assessee has no option but to
claim depreciation even during the tax holiday period, so that after the
relevant assessment years, the assessee’s written down value for assets would
be taken as if depreciation has actually been allowed as a deduction in each of
the relevant assessment years during the tax holiday period of 10 years. Thus,
the entire scheme of section 10B(6) provides for a situation where the assessee
is not allowed to postpone some of his claims of deduction under various
sections during the tax holiday period, so that the profits in the tax holiday
period are inflated and the profits of business after the tax holiday period
are reduced by claiming these deductions at that particular point of time.
Thus, the Assessing Officer was wrong in invoking the provisions of section
10B(6) during the current assessment year. [
The Commissioner (Appeals) was also wrong in his conclusions that total
income determined in terms of section 10B(1) did not refer to income computed
under section 28. A conjointed reading of section 2(45) and section 5 brings
one to a conclusion that the total income of any previous year shall be
computed as per the provisions of the Act. Therefore, the total income has to
be computed under the provisions of the Act and thereafter a deduction has to
be quantified under section 10B as provided in section 10B(4). In section
10B(4) it is provided that for the purpose of sub-section (1), the profits
derived from export of articles or things or computer software shall be the
amount which bears to the profits of the business of the undertaking, the same
proportion as the export turnover in respect to such articles or thing or
computer software bears to the total turnover of the business carried on by the
undertaking. The terms “Profits” and “turnover” in sub-section (4) of section
10B refers only to the current year’s profits and current year’s turnover. No
other view can be taken. Thus, the Assessing Officer should have taken the
profits of the business of the undertaking of the current year and then
multiplied it with export turnover and then divided the resultant figure with
the total turnover to arrive at the deduction under section 10B. This figure
should be deducted from the total income as computed under the rest of the
provisions of the Act. This was exactly what the assessee had done. [
If there was certain income still left with the assessee, after granting
deduction, then the same would be total income of the assessee and all other
provisions of the Act would apply. Under this scenario, section 72 would come
into play and the carry forward losses could definitely be set off against the
total income computed after providing for deduction under section 10B. [
Further the deduction under section 10B is not controlled by section 80AB
as deduction under section 10B is not a deduction under chapter VIA. When the
export turnover and total turnover pertained to a particular year, the profits
and gains from the business of an undertaking should obviously be for that
particular year and which are not adjusted against the previous losses or
allowances. Any other interpretation would not yield logical conclusions while
applying the formula. The amount of deduction under section 10B arrived in this
particular manner would become an income which would form part of the total
income of the assessee. [
Therefore, the assessee’s claim for set off of loss in question was
wrongly disallowed by the lower authorities and same was to be allowed. [