2003 (7) TMI 68 - HC - Income Tax

1. Whether the Tribunal was right in holding that even if there is no positive average adjusted total income under Explanation (ii) to section 44C, the provisions of clause (a) of section 44C are applicable and, consequently, no deduction was allowable? - 2. Whether in the absence of positive income under clause (a) of section 44C, head office expenses would be allowed in accordance with the lower limits under clauses (b) and (c) of section 44C of the Income-tax Act ignoring clause (a)? - Question No.1 is answered in the affirmative, i.e., in favour of the Department and against the assessee. In this case, we have held that the adjusted total income for the assessment year in question was nil and, therefore, the Income-tax Officer was right in allowing nil expense as the least of the three parameters mentioned in clauses (a), (b) and (c) of section 44e. This finding is based on the facts of this case. Consequently, question No.2 need not be answered.

Summary

Issues Involved:
1. Applicability of clause (a) of section 44C of the Income-tax Act, 1961, when there is no positive 'average adjusted total income'.
2. Allowance of head office expenses under clauses (b) and (c) of section 44C in the absence of positive income under clause (a).

Issue-Wise Detailed Analysis:

Issue 1: Applicability of Clause (a) of Section 44C

Facts:
The assessee, a shipping consultant and ship repair supervisor, faced losses during the assessment year 1977-78. The Assessing Officer noted that the adjusted total income was nil due to these losses. The assessee argued that clause (a) of section 44C should be ignored because of the negative adjusted total income and that only clauses (b) and (c) should apply, allowing a deduction of Rs. 8.47 lakhs.

Arguments:
The assessee's counsel argued that section 44C should be read liberally, emphasizing expenditure rather than the positive or negative figure of adjusted total income. He contended that clause (a) should be ignored as it contemplates a positive figure, not applicable in this case of negative income.

Scope of Section 44C:
Section 44C, dealing with non-residents, restricts the deduction of head office expenditure to the least of three alternatives:
(a) Five percent of adjusted total income or, in case of loss, five percent of the average adjusted total income.
(b) Average head office expenditure.
(c) Actual head office expenditure attributable to business in India.

Judgment:
The court held that all three parameters (a), (b), and (c) apply. Section 44C starts with a non obstante clause, overriding sections 28 to 43A, aiming to restrict inflated claims of head office expenses. The court noted that the adjusted total income was nil due to losses, invoking the proviso to section 44C. Thus, five percent of the average adjusted total income, which was also nil, applied. Therefore, the least of the three parameters was nil under clause (a), making the deduction not allowable.

Conclusion:
Question No.1 was answered affirmatively, in favor of the Department. The court held that the adjusted total income was nil, justifying the Assessing Officer's decision to allow nil expense as the least of the three parameters under section 44C(a).

Issue 2: Allowance of Head Office Expenses under Clauses (b) and (c)

Facts:
The assessee claimed head office expenses under clause (b) amounting to Rs. 8.47 lakhs and under clause (c) amounting to Rs. 8.69 lakhs, arguing that clause (a) should be ignored due to the negative adjusted total income.

Arguments:
The assessee's counsel argued that if clause (a) is ignored, the least of clauses (b) and (c) should apply, allowing a deduction of Rs. 8.47 lakhs.

Judgment:
The court found that all three parameters (a), (b), and (c) are applicable. Ignoring clause (a) would defeat the object of section 44C, which aims to restrict head office expenditure. Allowing a deduction based on clause (b) would increase the assessee's loss, contrary to the section's intent.

Conclusion:
The court did not need to answer Question No.2, as it was contingent on the outcome of Question No.1. The reference was disposed of with no order as to costs.

Summary:
The High Court of Bombay addressed two key issues regarding the applicability of section 44C of the Income-tax Act, 1961, concerning the deduction of head office expenses for non-residents. The court upheld that all three parameters under section 44C (a), (b), and (c) apply, and the least of these, which was nil under clause (a) due to the assessee's losses, was correctly applied by the Assessing Officer. Consequently, the court ruled in favor of the Department, rendering the second issue moot.