2012 (4) TMI 675 - AT - Income Tax

Tribunal dismisses revenue's appeal, partially allows assessee's appeal. Assessing Officer to re-examine set-off.

The Tribunal dismissed the revenue's appeal and partially allowed the assessee's appeal for statistical purposes. The Tribunal directed the Assessing ... Delayed payment of employees’ contribution towards Provident Fund and towards ESIC - Held that:- The Act permits the employer to make the deposit with some delays, subject to stated consequences. Insofar as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed. Computing deduction u/s.10A - Held that:- CIT(Appeals) was justified in allowing the claim of the assessee and directing the AO to exclude the expenses both from export turnover as well as total turnover while calculating the deduction u/s. 10A of the Act. Interest Income - Income From Other Sources OR Business Income - Held that:- Where an assessee invests its surplus funds in order to earn interest and to obviate its funds lying idle, such income would not fall for classification as business income. This is particularly so in a situation where the business of the assessee does not consist in the investment of funds. Where the assessee engages in an independent line of business, interest earned on deposits cannot be regarded as falling under the head of profits and gains of business or profession. Such income would fall for classification as income from other sources. Computing deduction under section 10A - Held that:- Income from a STPI Unit has to be excluded at source itself before arriving the gross total income Loss of a non- STPI Unit cannot be set off against the income of the STPI Unit while computing the deduction under section 10A of the Act. Brought forward losses and unabsorbed depreciation cannot be adjusted while computing deduction under section 10A of the Act and can be set-off against the income after the completion of tax holiday period. Further the required details have now been made available by the Assessee and it is necessary for the AO to go into the question as to which unit the unabsorbed depreciation pertains to. We therefore set aside the order of CIT(A) on this issue and remand the same to the AO for fresh consideration. Issues Involved:1. Deletion of addition made by the Assessing Officer on account of delayed payment of employees' contribution towards Provident Fund (PF) and ESIC.2. Reduction of expenditure from total turnover while computing deduction under section 10A.3. Treatment of interest income as 'Income from Other Sources' versus 'Business Income.'4. Inclusion of miscellaneous income, finder fees, and marketing fees in total turnover for deduction under section 10A.5. Set-off of unabsorbed depreciation against the profits of the STPI unit.Issue-Wise Detailed Analysis:1. Delayed Payment of Employees' Contribution towards Provident Fund and ESIC:The Assessing Officer (AO) added Rs. 40,69,602 towards employees' contribution to PF and Rs. 7,480 towards ESIC to the total income due to delayed payment beyond the statutory due dates. The CIT(A) allowed payments made within the grace period, totaling Rs. 10,19,700 for PF and Rs. 5,936 for ESIC, as business expenditure. For the balance amounts, the CIT(A) referenced the Supreme Court decision in Alom Extrusions, which allowed deductions if payments were made before the due date for filing the return. The Tribunal upheld the CIT(A)'s decision, dismissing the revenue's appeal, citing the Delhi High Court's decision in CIT vs. AIMIL Limited, which supported the allowance of such payments.2. Reduction of Expenditure from Total Turnover while Computing Deduction under Section 10A:The AO excluded certain expenditures from the export turnover but not from the total turnover, leading to a lesser deduction under section 10A. The CIT(A) agreed with the assessee's argument that both export and total turnover should be computed on the same basis, referencing decisions such as Sak Soft Ltd. The Tribunal upheld the CIT(A)'s decision, affirming that expenses excluded from export turnover should also be excluded from total turnover, as supported by the Karnataka High Court in Tata Elxsi Ltd. and the Bombay High Court in Gem Plus Jewellery India Ltd.3. Treatment of Interest Income as 'Income from Other Sources' versus 'Business Income':The AO treated Rs. 4,66,514 of interest income as 'Income from Other Sources,' which the assessee claimed should be considered as business income eligible for deduction under section 10A. The CIT(A) and the Tribunal upheld the AO's decision, referencing the Bombay High Court's ruling in Swani Spice Mills Pvt. Ltd., which distinguished between business income and income from surplus funds invested, classifying the latter as 'Income from Other Sources.'4. Inclusion of Miscellaneous Income, Finder Fees, and Marketing Fees in Total Turnover for Deduction under Section 10A:The AO included these receipts in the total turnover, which the assessee argued should be excluded. The CIT(A) and the Tribunal held that these receipts had a close nexus with the business activities of the undertaking and should be included in the total turnover for computing the deduction under section 10A.5. Set-off of Unabsorbed Depreciation against the Profits of the STPI Unit:The AO set off the entire unabsorbed depreciation against the profits of the STPI unit, reducing the eligible deduction under section 10A. The CIT(A) upheld this treatment. However, the Tribunal remanded the issue to the AO for fresh consideration, referencing the Karnataka High Court's decision in CIT vs. Yokogawa India Ltd., which held that unabsorbed depreciation should not be set off before allowing the deduction under section 10A.Conclusion:The revenue's appeal was dismissed, and the assessee's appeal was partly allowed for statistical purposes. The Tribunal directed the AO to re-examine the set-off of unabsorbed depreciation in light of new evidence and relevant judicial precedents.