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2004 (10) TMI 59 - HC - Income TaxEntitlement to weighted deduction under section 35B in respect of expenses incurred on export levy and on carriage of goods while on transit - Entitlement of extra shift allowance in regard to machinery added during the year - Inclusion of the amount of depreciation and value of rent-free accommodation and its maintenance towards perquisite while working out disallowance under section 40A(5) Held that cash incentive received by the applicant under the Export Promotion Scheme is clearly chargeable to income-tax under the head Profits and gains of business or profession. Thus the Tribunal was justified in upholding the addition. - In respect of weighted deduction claimed under section 35B(iii) of the Act it may be mentioned there that the weighted deduction is allowable only if they are wholly exclusively incurred for any of the purposes men tioned in various sub-clauses of section 35B(1)(b) - applicant is not entitled for weighted deduction in respect of expenses incurred on export levy and on carriage of goods and insurance while on transit which has been incurred in India Held that Tribunal was not justified in restricting the allowance of extra shift to the number of days during which the new machinery or plant had actually worked. It was allowable on the basis of the number of days during which the applicant had actually worked double or triple shift.
Issues Involved:
1. Depreciation on assets provided to employees and its inclusion in disallowance under section 40A(5) of the Income-tax Act, 1961. 2. Entitlement to weighted deduction under section 35B of the Income-tax Act, 1961, for expenses on export levy, carriage of goods, and insurance. 3. Entitlement to extra shift allowance based on the actual use of machinery. 4. Taxability of cash incentives received under the Export Promotion Scheme. 5. Treatment of rent-free accommodation and its maintenance as perquisites for disallowance under section 40A(5). Detailed Analysis: 1. Depreciation on Assets Provided to Employees: The court examined whether depreciation on assets provided to employees should be included in computing disallowance under section 40A(5) of the Income-tax Act, 1961. The relevant provision, section 40A(5)(a) and (b), was discussed, which includes any expenditure resulting in the provision of any perquisite to an employee. The court referred to the case CIT v. Empire Dyeing and Manufacturing Co. Ltd. [1991] 192 ITR 245 (Bom) and C.W.S. (India) Ltd. v. CIT [1994] 208 ITR 649 (SC), which supported the inclusion of depreciation as an allowance. The Tribunal's decision to uphold the inclusion of the value of rent-free accommodation and depreciation allowance was justified. 2. Weighted Deduction under Section 35B: The court addressed whether the assessee is entitled to weighted deduction under section 35B for expenses incurred on export levy, carriage of goods, and insurance. The court referred to CIT v. Stepwell Industries Ltd. [1997] 228 ITR 171 (SC), which stated that the onus is on the assessee to prove that the expenditure falls under any sub-clauses of section 35B(1)(b). The expenditure must be incurred outside India for it to qualify. The court also cited CIT v. New Light Tannery [2000] 244 ITR 5 and Hamosons Export (P.) Ltd. v. CIT [1999] 238 ITR 773 (Mad), which ruled that expenses incurred in India do not qualify for weighted deduction. The Tribunal's decision to deny the weighted deduction was upheld. 3. Extra Shift Allowance: The court considered whether the assessee was entitled to extra shift allowance based on the actual use of machinery. Referring to South India Viscose Ltd. v. CIT [1997] 227 ITR 286 (SC), the court held that extra shift allowance should be calculated based on the number of days the concern worked double or triple shifts, not the days individual machinery worked. The Tribunal's restriction of the allowance to the days the new machinery worked was incorrect, and the allowance should be based on the actual working days of the concern. 4. Taxability of Cash Incentives: The court examined whether cash incentives received under the Export Promotion Scheme are taxable. Section 28(iiib) and 28(iiic) of the Act, inserted by the Finance Act, 1990, effective from April 1, 1967, were discussed. These sections state that cash assistance and duty drawbacks received against exports are chargeable to income-tax under "Profits and gains of business or profession." The Tribunal's decision to include the cash incentives in taxable income was justified. 5. Rent-Free Accommodation and Maintenance: The court addressed whether rent-free accommodation and its maintenance provided to employees should be treated as perquisites for disallowance under section 40A(5). The relevant provisions and the definition of "perquisite" under section 40A(5) were discussed. The court cited CIT v. Empire Dyeing and Manufacturing Co. Ltd. [1991] 192 ITR 245 (Bom) and C.W.S. (India) Ltd. v. CIT [1994] 208 ITR 649 (SC), which supported treating rent-free accommodation as a perquisite. The Tribunal's decision to include these expenses in disallowance calculations was upheld. Conclusion: - Depreciation on Assets Provided to Employees: Affirmed in favor of the Revenue. - Weighted Deduction under Section 35B: Denied in favor of the Revenue. - Extra Shift Allowance: Allowed in favor of the assessee. - Taxability of Cash Incentives: Affirmed in favor of the Revenue. - Rent-Free Accommodation and Maintenance: Affirmed in favor of the Revenue. The parties shall bear their own costs due to divided success.
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