2008 (9) TMI 400 - AT - Income Tax

Deductions for Industrial Undertaking Profits Calculation: Past Losses & Depreciation

Gujarat Ambuja Cements Limited. Versus Deputy Commissioner Of Income-tax, Special Range 19, Mumbai.

Gujarat Ambuja Cements Limited. Versus Deputy Commissioner Of Income-tax, Special Range 19, Mumbai. - [2010] 5 ITR 689, ITD 117, 087, TTJ 120, 883 Issues Involved:1. Whether past losses, unabsorbed depreciation, and investment allowance should be set off against current profits for calculating deduction under section 80-I.2. Whether the provisions of section 34A should be considered while arriving at the profit of the unit.Detailed Analysis:Issue 1: Set-off of Past Losses, Unabsorbed Depreciation, and Investment AllowanceFacts and Background:The assessee set up a new industrial undertaking in Kodinar in the previous year relevant to the assessment year 1988-89. The unit was eligible for deduction under section 80-I. In earlier years, the assessee had unabsorbed depreciation and investment allowance, which were set off against other income. The Assessing Officer reopened the assessment to carry forward the losses and set them off against the current year's profits by applying section 80-I(6).Contentions:- Assessee: Under section 80-I(6), the industrial undertaking should be treated as the only source of income for determining the quantum of deduction. The past losses, unabsorbed depreciation, and investment allowance should not be set off against the current profits for calculating the deduction.- Revenue: The deduction should be allowed only in respect of the net profits and gains from the unit after making adjustments for past losses, unabsorbed depreciation, and investment allowance, even if these were set off against other income in earlier years.Tribunal's Observations:- Learned Accountant Member: The legal fiction under section 80-I(6) implies that all incomes arising from the eligible undertaking should be considered for the purpose of quantifying the deduction. The CIT(A)'s view that the eligible industrial undertaking should be considered as an independent unit is unsustainable. Ambiguity should be resolved in favor of the assessee.- Learned Judicial Member: Section 80-I(6) requires that the profits and gains of the industrial undertaking be computed as if it were the only source of income. The unabsorbed losses, depreciation, and investment allowance should be set off against the current profits of the unit. The income earned by way of interest, capital gains, and dividends cannot be considered as income derived from the eligible industrial undertaking.- Third Member: Agreed with the Judicial Member, emphasizing that the income derived from the industrial undertaking alone should be considered. The legal fiction under section 80-I(6) ensures that the assessee does not get a double deduction. The past losses and unabsorbed depreciation relating to the eligible unit should be taken into account for determining the quantum of deduction.Conclusion:The majority opinion held that a sum of Rs. 4,35,52,000 (aggregate of brought forward unabsorbed losses, depreciation, and investment allowance) should be reduced as per section 80-I(6) from the current year's profits derived by the assessee from its eligible industrial undertaking for the purpose of computing deduction under section 80-I(1).Issue 2: Consideration of Section 34A ProvisionsFacts and Background:The assessee argued that the restrictive provisions of section 34A should be considered while arriving at the profit of the unit.Contentions:- Assessee: The restrictive provisions of section 34A should be taken into account for calculating the profit of the unit.- Revenue: The CIT(A) found that the Assessing Officer had already allowed the set-off of carried forward unabsorbed investment allowance to the extent of 2/3rd as per section 34A.Tribunal's Observations:- Learned Judicial Member: The provisions of section 34A are applicable only for computing the profits and gains of the business of a domestic company for the assessment year 1992-93. The Assessing Officer has rightly computed the profits and gains of the business while computing the gross total income. The provisions of section 80-I(6) are overriding and relevant only for the purpose of computing deduction under section 80-I(1).Conclusion:The alternative ground of the assessee was dismissed, as the provisions of section 34A were already considered by the Assessing Officer while computing the gross total income.Final Decision:The appeal of the assessee was dismissed based on the majority opinion that the past losses, unabsorbed depreciation, and investment allowance should be reduced from the current year's profits for computing the deduction under section 80-I. The alternative ground regarding section 34A was also dismissed.