2018 (8) TMI 595 - AT - Income Tax

Tribunal clarifies subsidy treatment, allows BOT rights depreciation, restricts Section 14A disallowance

Dy. Commisioner of Income Tax – 9 (1) (2), Mumbai Versus M/s. Atlanta Infra Assets Limited

Dy. Commisioner of Income Tax – 9 (1) (2), Mumbai Versus M/s. Atlanta Infra Assets Limited - TMI Issues Involved:1. Nature of subsidy received from National Highway Authority of India (NHAI).2. Depreciation claim on Build-Operate-Transfer (BOT) rights.3. Disallowance under Section 14A of the Income Tax Act, 1961.Detailed Analysis:1. Nature of Subsidy Received from NHAI:*Issue:* Whether the subsidy/grant received from NHAI is a capital receipt.*Revenue's Argument:* The Revenue argued that the subsidy received from NHAI should be considered revenue in nature, referencing the Supreme Court decision in the case of Sahney Steel & Press Works Ltd CIT (1977) (228 ITR 253), which states that subsidies received to meet operational expenses are revenue in nature.*Assessee's Argument:* The assessee contended that the subsidy received was towards 'Equity Contribution' and should be treated as a capital receipt.*Tribunal's Decision:* The CIT(A) held that the subsidy is a capital receipt and should not be reduced from the cost of the toll road, allowing amortization of the entire amount of the toll road. The Tribunal restored the matter back to the AO for reconsideration, directing the AO to verify the nature of the subsidy received by the assessee.2. Depreciation Claim on BOT Rights:*Issue:* Whether the assessee is eligible for depreciation on BOT rights of the Nagpur-Kondhali Section Road.*Revenue's Argument:* The AO disallowed the depreciation claim, arguing that the assessee is not the owner of the BOT rights.*Assessee's Argument:* The assessee claimed depreciation on the BOT rights, citing previous Tribunal decisions allowing such claims.*Tribunal's Decision:* The Tribunal referenced the decision in the case of the holding company, Atlanta Ltd., where the claim for depreciation was allowed. The Tribunal directed the AO to allow the assessee's claim for depreciation, following the precedent set in the case of the holding company.3. Disallowance Under Section 14A:*Issue:* Whether the disallowance under Section 14A should exceed the exempt income received by the assessee.*Revenue's Argument:* The Revenue argued that the total disallowance under Section 14A should be the aggregate of the amounts determined by the special bench of the Tribunal in the case of ITO vs. Daga Capital Management (P) Ltd (2009) 117ITD 169.*Assessee's Argument:* The assessee contended that the investment in subsidiary companies was for business purposes and not for earning dividend income. The total exempt income claimed during the year was only Rs. 60,000 as dividend from cooperative banks, which was offered for taxation.*Tribunal's Decision:* The CIT(A) restricted the disallowance under Section 14A to Rs. 60,000, aligning with the exempt income claimed. The Tribunal upheld this decision, directing the AO to verify if the Rs. 60,000 received as dividend from the cooperative bank is liable to tax. If it is taxable, no disallowance under Section 14A should be made.Conclusion:The Tribunal's judgment addressed the nature of the subsidy received from NHAI, the eligibility for depreciation on BOT rights, and the disallowance under Section 14A. The Tribunal restored the issue of the subsidy back to the AO for verification, directed the AO to allow depreciation on BOT rights following the precedent, and upheld the CIT(A)'s decision on the disallowance under Section 14A, ensuring it does not exceed the exempt income. The appeals of both the assessee and the Revenue were allowed in part, as indicated in the judgment.