TaxTMI 
TaxTMI 
2008 (4) TMI 405
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....ars. 2. The decision of the Tribunal, Bombay Benches, in the case of M. Pallonji & Co. Pvt. Ltd. v. JCIT 105 TTJ 136 (Bom.) is in favour of the assessee and it held that unabsorbed depreciation of eligible project could not be set off against profit of eligible business for the purposes of deduction Under Section 80IA which unabsorbed depreciation stood already adjusted against profits of assessee from other business. Whereas, another Bench of the Tribunal in ACIT v. Ashok Alco Chem Ltd. 96 ITD 160 (Mum.) is stated to have held against the assessee by observing that for the purpose of applying the provisions contained in Section 80IA of the Act, the profits or gains of the eligible business are to be computed as if the eligible business were the only business of the assessee right from the initial year, brought forward losses of the unit have to be set off against the profits and in the absence of profit from the eligible units after set off of brought forward losses of the said units, deduction Under Section 80IA could not be allowed. The Tribunal, Kolkata Benches, in the case of ITO v. Kanchan Oil Industries Ltd. 92 ITD 557 (Kol.) has concluded that in view of Sub-section (7) of....
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....deduction Under Section 80IA on the basis of the profits earned in the respective year subject to the maximum of gross total income. On the other hand the A.O. reduced the claim of the assessee Under Section 80IA in view of the provisions of Section 80IA(7)/80IA(5) of the IT. Act holding that the deduction in these A.Y. 1997-98 and subsequent years would be allowable only on the income which is arrived after setting off of the carried forward losses on notional basis of the eligible business even though such losses of the eligible business were set off against other incomes' of the assessee in A.Y. 1996-97. The assessee challenged the order of the A.O. before the CIT(A) who primarily relied upon the judgment of High Court of Calcutta in the case of CIT v. Balmer Lawrie & Co. Ltd. 215 ITR 249 and decided the issue in favour of the assessee by observing as under: 10. From the various decisions discussed, the crystallized ratio appears to be: (i) The profits and gains of an IU should have been included in the Total Income and that such profits must be computed in accordance to the provisions of the Act. (ii) The percentage as prescribed is to be applied to such component of ....
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.... turnover. It is significant to note that the Sub-section 80IA(7) has not used the fiction " or as if the past years' depreciation or development rebate had not been set off against other income of the assessee" as is mentioned by the Hon'ble Supreme Court in the case of Rajapalayam Mills. In place the section has used the fiction mentioned in the aforesaid judgment "if the new IU were the only business of the assessee". Looking into the controversies, if the legislature intended to permit set off such absorbed loss and depreciation, against the current profit of the IU, it could have very well used the first fiction mentioned above. It appears more logical that the legislation chose the other fiction to clarify the issue that the profit of an IU is to be determined as if, such business was only source. By this, the legislation meant to clarify that the profit of each unit is to be determined as per provisions of Act but did not mean to introduce the fiction that the unabsorbed depreciation or unabsorbed loss of the unit set off earlier is required to be set off from current profits. 10.2 In case the other view that the fiction meant to permit two modes of computation and....
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....d the very objective of incentive is defeated. As is revealed by the statistics of the income generation by wind farm, the appellant will require at least 15 years to absorb the depreciation which had already been set off against other income i.e. the owner of wind farm will never get the benefit of deduction. 10.2.4 Further the reason advanced by the learned AR quoted in para 6(iii)(b) is also very valid. The benefit proposed to be given puts appellant in disadvantageous position if the interpretation of the department is accepted. 10.3 Considering the objective of the incentive section, ratios laid down by the higher courts, harmonious construction of various similar incentive provision related to new IU and the strict interpretation of the fiction in 80IA(7), I am of the opinion that the fiction cannot be extended to permit the set off of already absorbed depreciation of the IU against other income in earlier years from the current profit However, the unabsorbed depreciation is required to be set off from the business profit of the IU to determine such profit'. The balance depreciation out of unabsorbed depreciation that could not be set off against the profit of the IU,....
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....1.5 crore Profit of Rs. 2 crores Deduction U/S. 80-IA Nil On Rs. 0.5 Cr.=(2-1.5 Cr.) 'B' has Two activities - one of eligible business and other non-eligible business activity Yr. No. 1st year 2nd year Eligible business+ Non-eligible Eligible business+ Non-eligible Loss of 1.5 Cr. + Profit. 1.50 Cr. Profit Rs. 2 Cr.+ Profit Rs. 1.50 Cr. Deduction U/S. 80-IA NIL On Rs. 2 Cr. 9. He submitted that in the second year "A" would get deduction of Rs. 0.5 Cr. whereas, "B" gets deduction of Rs. 2 Cr. W would be at disadvantageous stage as compared to 'B' despite the fact that both "A" and "B" had similar eligible businesses earning similar profit/ losses in the first and second years and that 80IA deduction is allowable to the eligible business and not to the assessees- 'A' or 'B'. 10. It is further submitted that the words in Section 80IA(5) namely : "for the assessment year immediately succeeding the initial asstt. year or in subsequent asstt. year" would be construed as if the benefit Under Section 80IA is intended to be given only to an industrial undertakings or to an eligible business and not to an assessee as such. He ....
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....the gross total income of the assessee which has been held to be applicable by Bombay High Court in the case of the Bombay High Court in the case of Synco Industries Limited V.AO: 254 ITR 608 (Bom) upheld recently by the Supreme Court vide judgment dated 8th March, 2008. As these sections can be applicable only when there is other source(s) of income, there cannot be any reconciliation of this decision to restricting the deduction of the income from the industrial undertaking to the amount of income by the set off of losses under the heads "other heads of income". 15. We have heard the parties and considered the rival submissions of the respondent assessee. The deduction was originally provided under Sub-section (1) of Section 801 at 20% (25% in case of a company) of and from such profits and gains derived by an industrial undertaking or a ship or a hotel etc. as are included in the Gross Total Income of an assessee. It was on fulfillment of certain conditions. Notwithstanding anything contained in any other provision of this Act, a fiction was created by Sub-section (6) for determining quantum of deduction to be allowed by deeming that the profits and gains of an industrial under....
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....e derived from the new industrial unit, ship or approved hotel. In the case of companies, 25 percent of the profits derived from new industrial undertaking etc., will be exempted from tax for a period of seven years and in the case of other taxable entities 20 per cent. Of such profits will be exempted for a like period. In the case of cooperative societies, however, the exemption will be allowed for a period of ten years instead of seven year. (ii) The benefit of "tax holiday" under the new scheme would be admissible to all small-scale industrial undertakings even if they are engaged in the production of articles listed in the Eleventh Schedule to the Income-tax Act. In the case of other industrial undertakings, however, the deduction will be available, as at present, where the undertakings are engaged I the production of articles other than articles listed in the said Schedule. (iii) In computing the quantum of "tax holiday" profits in all cases, taxable income derived from the new industrial units, etc., will be determined as if such unit were an independent unit owned by a taxpayer who does not have any other source of income. In the result, the losses, depreciation and inv....
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....derived by ah undertaking or an enterprise from any business referred to in Sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. Under this section the deduction is to eligible business, as defined in Sub-section (4) thereof. 22. Sub-section (5) of Section 80IA of the newly replaced and inserted provisions of the Act reads as under: (5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of Sub-section (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year relevant to initial assessment year and to every subsequent assessme....
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....ion (2) of Section 80A specifically enacts that the aggregate of deductions under Chapter VI-A should not exceed the gross total income of the assessee. If the Gross Total Income is found to be a net Loss on account of the adjustment of loses of the earlier years or "nil", no deduction under this Chapter can be allowed. As noticed earlier Clause (5) of Section 80B defines the expression "gross total income" to mean the total income computed in accordance with the provisions of the act without making any deductions under chapter VI-A. The effect of Clause (5) of the Section 80B of the Act is that Gross Total Income will be arrived at after making the computation as follows: i) making deductions under the appropriate computation provisions; ii) including the incomes, if any, under Sections 60 to 64 in the total income of the individual; iii) adjusting intra-head and/or inter-head losses; and iv) setting off brought forward unabsorbed losses and unabsorbed depreciation, etc. 26. Decision of Kotagiri Industrial Co-op. Tea Factory Ltd., 224 ITR 604 (SC) was also noticed in the case of Synco Industries Ltd. (supra) wherein Supreme Court held that in view of express provision def....
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....Therefore whatever is stated in the other provision is to be ignored 29. The third sub-head provides that the profit and gains are computed on a fiction created to the effect that the eligible business is the only source of income. It is a deeming provision and a deeming provision is intended to enlarge/curtail the meaning of a particular word which includes or excludes matters which otherwise may or may not fall within the provision; it should therefore, be extended to the consequence and incidence which shall inevitably follow. The following off-quoted observations of Lord Asquith in East and Dwelling Co. Ltd. v. Finsburry Borough Council 1952 (AC) 109, may appropriately be referred to: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination ....
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....tion is to be granted only with respect of the profits of the eligible business, if the assessee was carrying many activities and having many sources of income. "As if that were the only source of income" means if there was no other source of income. If that be so the depreciation and loss could not be absorbed and be set off against any other source or head of income. It is because by virtue of deeming fiction one has to assume that there is no other source of income and consequently it has to be carried forward and set of against the income of this very source only for which the deduction is being computed. The argument that if the loss incurred by the assessee were set off and adjusted against profits of the earlier year, there is no mandate in the section to presume that it should be notionally carry forward and set of against the profits of the eligible business of the subsequent year has the effect of ignoring the fiction created in the provision and therefore has no force hence, cannot be accepted. 33. The words "as if such eligible business were the only source of income of the assessee" compel us to assume that the assessee is not having any other source of income except ....
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....e only source of income. 35. In a contrary situation the Mumbai Bench of the Tribunal in the case of Addl. CIT v. Ashok Alco Chem Ltd. 96 ITD 160 (Mum) similarly explained that for the purpose of applying the provisions contained in Section 80IA, the profits and gains of the eligible business are to be computed as if the eligible business were the only business of the assessee right from the initial year and the losses, depreciation or development rebate in respect of such eligible business for the past assessment years were not set off against the profits from other business; that there being no profit in respect of two units after set off of brought forward losses of these units, AO was therefore justified in denying deduction under Section 80IA, the Wordings of Section 80IA(7) are clear and unambiguous ; and that therefore, there is no scope for conferring the benefit upon the assessee by ignoring or misinterpreting the words of Section 80IA(7). To quote, the Bench held: The legislature by introducing subs. (7) of Section 80-IA, has created a legal fiction that for the purpose of applying the provisions contained in that subsection, the profits or gains of the eligible busine....
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....d by the other income of the assessee in the subsequent year or years during the tax holiday period, the said loss will have to be adjusted against the eligible profits and gains from industrial undertaking and tax holiday benefit under Section 80-I is to be computed only on the balance. 38. The Tribunal, Kolkata Benches, in the case of ITO v. Kanchan Oil Industries Ltd. 92 ITD 557 (Kol.) discussed both the situations of losses of other business and of the business of eligible business and concluded that in view of Sub-section (7) of Section 80IA, for computing deduction Under Section 80IA, brought forward losses and unabsorbed depreciation of ineligible business cannot be deducted from the income of eligible business and only the unabsorbed depreciation / brought forward losses of eligible business can be so deducted. It held: For the purpose of determining the quantum of deduction under subs. (5) of Section 80-IA, the eligible business is to be treated as the only source of income of the assessee during the relevant assessment year as provided under Sub-section (7) of Section 80-IA. A careful perusal of Section 80-IA(7) shows that Section 80-IA(7) enacts provisions of overridi....
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.... the court though the Assessing Officer has sought to compute the income of the new undertaking for the purpose of computing deductions permissible under that section by setting off the loss carried forward from the assessment year 1983-84 by treating the new undertaking as the only source of income against which such losses carried forward could be set off. He relied on the decision in Cambay Electric Supply Industrial Co. Ltd. v. CIT held that the carried forward un-absorbed loss of the priority industry was first to be reduced from the total income and before computing the income of the assessee for the purpose of deductions and it was not by reliance on and by forgetting the existence of Sub-section (6) to Section 80I further it was a case of rectification invoked the Assessing aforesaid case, the Tribunal confirmed the order of the CIT(A) on the ground that the aforesaid issue could not be subject matter of rectification under Section 154 of the Act and the High court upheld the order of the tribunal. 41. The second aspect of the matter is that the fiction is created for all the years eligible for the deduction i.e. the initial year (the first year of the deduction) and all s....
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....s reported in 299 ITR 444(SC). In this case the assessee was engaged in the business of oil and chemicals. It had a unit for oil division in Sirohi and a unit for chemical division in Jodhpur. For the assessment years 1990-91 and 1991-92 it had earned profits in both the units. But in the earlier years the assessee had suffered losses in the oil division. In relation to the deductions under Sections 80HH and 80-I of the Income-tax Act, 1961, it claimed that each unit should be treated separately and the losses suffered in the earlier years by the oil divisions were not adjustable against the profits of the chemical division. But since the gross total income was nil the Assessing Officer held that the assessee was not entitled to the benefit of deductions under chapter VI-A. The Appellate Tribunal and the High Court affirmed the view of the Assessing Officer. On appeal to the Supreme Court it is held affirming the decision of the High Court, that the High court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was "nil" the assessee was not entitled to claim deductions unde....
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....eduction under Chapter VI-A of the Act. 43. A specific contention was raised in this case as to the non obstante provisions of Section 80I(6) as was applicable in that case to contend that the fiction overrides all other provisions of the Act and the court held: 13. The contention that under Section 80I(6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be was the only source of income, has no merit. Section 80I(1) lays down that where the gross total income of the assessee includes any profits derived from the priority undertaking/ unit/division, then in computing the total income of the assessee, a deduction from such profits of an amount equal to 20 per cent, has to be made. Section 80-I(1) lays down the broad parameters indicating circumstances under which an assessee would be entitled to claim deduction. On the other hand, Section 80-I(6) deals with determination of the quantum of deduction. Section 80-I(6) lays down the manner in which the quantum of deduction has to be worked out. After such computation of the quantum of deduction, one has to go back to Section 80-I(1) which categorical....
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....(5). Therefore, this Court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was "nil" the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also. 14. The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses, etc., and if the gross total income of the assessee is "nil" the assessee would not be entitled to deductions under Chapter VI-A of the Act. 44. Therefore the submission that, had the intention was to presume that other business or source has not to be in existence, then in that case Section 80A(2)and 80B(5) also would/should be not applicable in restricting the deduction to the total income of the assessee is to be rejected. The contention that these sections can be applicable only when there is other source(s) of income, there cannot be any reconciliation to this decision of the restricting the deduction of the income from the industrial undertaking to the amount of income as receipt....
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.... clause in Section 80-I(6) cannot restrict Sections 80A(2) and 80B(5). They operate in different spheres. Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of an assessee and, therefore, while interpreting Section 80-I(1), which refers to gross total income, one has to read the expression "gross total income" in Section 80-I(1) as defined in Section 80B(5). 46. Reliance on the decision of the Supreme court in the case of Canara Workshops (P.) Ltd. [1986] 161 ITR 320 was also made before the Bombay High Court and it held to not applicable to in such a situation. The court held that: In our view the judgment of the Supreme Court, on the facts, does not apply to the present case. In that matter, the assessee was a public limited company engaged in the manufacture of automobile spares. During the assessment year 1966-67, the assessee commenced another activity, viz., manufacture of alloy steels. Both the activities fell within the Fifth Schedule to the Act. The assessee sustained a loss in the manufacture of alloy steel, whereas profits were earned from the....
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.... ITR 29 (Bom), even if the total amount of deduction under Sections 80HH and 80-I is Rs. 32, but the gross total income is Rs. 30, then to that extent, the amount of deduction shall stand reduced. That, while calculating the gross total income of the company, one has to adjust the losses from one priority unit against the profits of the other priority unit and if the resultant gross total income is "nil", then the assessee cannot claim deduction under Chapter VI-A. In the circumstances, the judgment of the Supreme Court in Canara Workshops (P.) Ltd.'s case [1986] 161 ITR 320 has no application to the facts of the present case. 47. In the decision of the Tribunal, Bombay Benches, in the case of M. Pallonji & Co. Pvt. Ltd. v. JOT 105 TTJ 136 (Bom.) which is claimed to be in favour of the assessee it was held as under: The lower authorities have erred in setting off of the unabsorbed depreciation of the earlier assessment year against the profit of the wind mill unit pertaining to the current assessment year and, thereby restricting the benefit of Section 80-IA to the assessee-company. As a matter of fact, it is to be seen that the assessee-company had income from various busin....
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....of eligible business, but this case has not noticed the non obstante provisions of Section 80I(6)/80IA(5) and, therefore, there is no discussion on this point in that decision. It would similarly, therefore, be not of any help to us. 50. The brief facts of the Joyco India (P) Limited, the intervener before the Special Bench, are that during the assessment year 1999-2000, the intervener was carrying on business in three different units, namely,- i) Bubble Gum unit, ii) Plain Toffee unit and iii) Trading unit. It has profit in Bubble Gum Unit of Rs. 6,84,51,624 and in Plain Toffee Unit Rs. 61,07,791 but loss in Trading Unit Rs. 17,92,646; Gross Total Income being Rs. 7,27,66,770. Since the Bubble Gum and Plain Toffee units were eligible for full tax holiday under Section 80IA of the Act, the assessee claimed full deduction but restricting it equivalent to the gross total income amounting to Rs. 7,27,66,770. The claim of the intervener was that the losses of the Plain Toffee unit were set off against income of those very years', namely,-profits of Bubble Gum unit and its claim for deduction under Section 80-IAof the Act in respect of profits derived from the Bubble Gum unit as re....
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....or computing deduction losses incurred in one eligible unit is required to be set-off against the profits of the other eligible undertaking or not; and that the aforesaid controversy came up for consideration before the apex Court in the case of CIT v. Canara Workshops Pvt. Ltd. : 161 ITR 320(SC), wherein it is held that in computing the profits for the purpose of deduction under Section 80-E of the Act, the losses incurred by the assessee in a priority industry could not be set-off against the profits of another priority industry, referring with approval the decision of the Calcutta High Court in the case of CIT v. Bellis & Corcom (I) Ltd 136 ITR 481 delivered in the context of Section 80-I of the Act wherein it was held that it is not permissible to compute the profits of the priority industry respecting which the relief is claimed by taking into account the depreciation losses from other industries; and that the provisions of Sub-section (5) of Section 80-IA merely give legislative sanction/ statutory recognition to the stand taken by the assessee and subsequently approved by the apex Court in the case of Canara Workshops (supra) to avoid any unnecessary controversy / debate on ....
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....orbed losses/depreciation relates to the eligible undertaking, such unabsorbed losses/depreciation must be set off against the profits of the eligible undertaking for computing such deduction. This has to be done, irrespective of the option available to the assessee under Sections 72/32 of the Act to adjust unabsorbed losses/ depreciation against profits of any other undertaking/ other incomes and not against the profit of the eligible undertaking. Again it is half true and the half is that even if the losses of the eligible business are set off against other sources income in earlier year, it is to carried forward and set of against profit of the year of claim because of the fiction that there was no other source existed in realty. 52. The set off of unabsorbed losses and depreciation are governed by Chapter VI and Section 32(2) of the Act. Once in accordance with the said provisions unabsorbed losses/ depreciation are set off against any income, under the provisions of the Act there was no provision for notionally carrying forward such absorbed losses. It was so held by the decision of the Supreme Court in Patiala Floor Mills (supra). But after insertion in 1.980 of the non obst....
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....as we are dealing with the decision of a High court and that too of a High Court having no jurisdiction over the case arising from a different State, which though has a high persuasive value is not binding in other jurisdiction. Secondly, the decision of Rajasthan High court has not dealt with and was also not addressed to deal with the controversy by noticing the non obstante provisions of Section 80I(6)/80IA(5) aforesaid. Thirdly, in any case the issue before Rajasthan High Court was whether Assessing Officer could be said to be justified to invoke Section 154 to rectify the mistake which on a contentious matter is not permitted. Fourthly, a decision without noticing an existing provision of law governing the very issue in dispute cannot shut the doors of the tribunal in considering and applying the provisions of law de hors the contrary decision of a High court. This is because a statutory provision supersedes the contrary decision of any court including that of a High court or even Supreme Court and has an ultimate force of law having greater force. Fifthly, in the first case it was not an actual non consideration of a provision but as the Supreme Court itself says in the under....
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.... are of no help in resolving the issue. The decision of Rajasthan High Court wherein provisions of Section 80I(6) were not specifically discussed nor brought to the notice of the High Court, cannot therefore be said to have concluded the issue, and consequently the same cannot be said to be a binding decision. 57. The contention of Mr. Vora that to read the legal fiction, namely, overriding Section 32(2), 70,71and 72 is also covered by the provisions of Sub-section (5) of Section 80-IA of the Act would clearly tantamount to reading words into the section at the cost of doing violence to the language of the provision, is not based on the correct interpretation of the fiction created. The statement of doing violence would, in our opinion, on the contrary would be more appropriate in a vice versa situation i.e., by not assuming the legal effect of the fiction and holding that it does not override the provisions of Sections 32(2), 70,71 and 72 would be tantamount to doing violence to the language used in the fiction created by the statute, which violence, we agree is not at all permissible in law. 58. There is also no force in the submission that a plain and simple interpretation of ....
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....? When you are bidden to assume a state of affairs you cannot boggle your mind and assume the putative state of affairs as not real. Therefore though losses were set off against other sources income, they are to assumed as not set off in absence of existence of another source and for computing the profit and gains for the purposes of determination of the quantum of deduction one has to once again notionally bring back already set off losses, etc. and set off the same against the profits and gains in a year in the deduction is claimed. Section 80-IA(5) of the Act seeks to regard the eligible unit as a separate source of income so as to separately determine the carry forward and set off of losses in the hands of that unit. Such an interpretation is not in our opinion contrary to the scheme of the Act whereby the aggregate profits and losses of all units owned by the assessee are pooled together and taxed in the hands of the assessee, if we keep in mind that the object of the fiction is only for determining the quantum of deduction and nothing beyond and therefore one cannot decry an assumption of multiple assessments for the same assessee owning numerous eligible units, by treating e....