2011 (7) TMI 1017 - AT - Income Tax

Tonnage tax scheme under Chapter XII-G - Qualifying Ship u/s 115VD- The main activity of this ship was to transport thermal coal from one location to another location within the country. Revenue stated, such ship would not come within the ambit of a qualifying ship for availing of the tonnage tax scheme - HELD THAT - Order of Accountant Member - Just because a seagoing ship was used to transport coal between the ports which were connected by rail/road, would not be sufficient enough a reason to say that it was not qualified under section 115VD. Clause (i) of section 115VD was not intended for that purpose but only to ensure that profits, from services and sale of goods which could be effected on land did not get any unintended benefits by shifting the business to a seagoing ship, just to get the benefit of tonnage tax scheme. We are therefore of the opinion that the Commissioner of Income-tax (Appeals) was very well justified in directing the Assessing Officer to give the benefit of tonnage tax scheme under section 115VD of the Act to the assessee - Decided against revenue. Order of Judicial Member - Since the language employed in the relevant provision here is plain and simple, without any ambiguity or flaw, natural grammatical meaning has to be given, therefore, in my considered view, if a ship, the main purpose for which it is used is the provision of goods or services of a kind normally provided in land it would disqualify that ship for the purpose of tonnage tax scheme as specifically mentioned in clause (i) of section 115VD. Action of the Assessing Officer is proper and justified to hold that the ship is not a qualified ship for the benefit of tonnage tax scheme as envisaged under the relevant provisions of law - Decided in favour of revenue. Order of Third Member - Theoretically speaking, even transport planes can carry coal from one destination to another destination. These kinds of extreme views are not at all called for in interpreting a beneficial provision couched in simple language. The AO is trying to bring in additional conditions which have never been contemplated in drafting the law. On the facts and circumstances of the case agree with the view of the learned Accountant Member to hold that the ship operated by the assessee Ship in question is transporting thermal coal from one location to another location within the country, is a qualifying ship under section 115VD of the Income-tax Act, 1961 and the assessee is entitled for the benefit of tonnage tax scheme provided under Chapter XII-G. I agree with the view of the learned Accountant Member that the appeal of the Revenue is liable to be dismissed. Matter will be placed before the regular Bench for the passing orders, to finally dispose of the appeal on the majority view.

Issues Involved:
1. Whether the ship "M.V. Gem of Ennore" qualifies for the tonnage tax scheme under Chapter XII-G of the Income-tax Act, 1961.
2. Interpretation of Section 115VD of the Income-tax Act regarding the definition of a "qualifying ship."

Issue-wise Detailed Analysis:

1. Qualification of "M.V. Gem of Ennore" for the Tonnage Tax Scheme:

The Revenue's grievance was that the Commissioner of Income-tax (Appeals) directed the Assessing Officer to treat the ship "M.V. Gem of Ennore" as qualifying for the tonnage tax scheme under Chapter XII-G of the Income-tax Act, 1961. The Revenue contended that the ship's main activity was transporting thermal coal between locations within India, where ports were connected by road and rail, thus not fitting the definition of a "qualifying ship."

The Assessing Officer noted that the ship was transporting coal from ports like Haldia, Paradip, and Vizag to Ennore and Tuticorin, which could also be transported by land. Therefore, he concluded that the ship did not qualify under Section 115VD of the Act, which excludes ships used mainly for the provision of goods or services normally provided on land.

The Commissioner of Income-tax (Appeals) disagreed, pointing out that the tonnage tax scheme was based on the UK model, and there was no disabling provision in Chapter XII-G of the Act that disqualified ships transporting cargo between Indian ports. The Commissioner held that the ship did qualify under Section 115VD and directed the Assessing Officer to allow the tonnage tax benefit.

2. Interpretation of Section 115VD of the Income-tax Act:

Section 115VD defines a "qualifying ship" and includes exclusions such as ships used mainly for the provision of goods or services normally provided on land. The Assessing Officer relied on this clause to deny the tonnage tax benefit, arguing that coal could be transported by road or rail.

The Commissioner of Income-tax (Appeals) interpreted the clause differently, stating that the exclusion was meant for services like retail selling, restaurants, hotels, etc., which could be easily shifted to a ship to gain tax benefits. The Commissioner emphasized that the purpose of the tonnage tax scheme was to simplify tax computation for shipping companies and should not be complicated by excluding ships based on the availability of land transport routes.

Separate Judgments Delivered:

Accountant Member's Judgment:
The Accountant Member upheld the Commissioner of Income-tax (Appeals)'s decision, stating that the ship "M.V. Gem of Ennore" qualified for the tonnage tax scheme. The Member emphasized that the exclusion in Section 115VD was not intended to disqualify ships transporting goods like coal, which could also be transported by land. The interpretation should support the scheme's purpose of providing a simplified tax regime for shipping companies.

Judicial Member's Judgment:
The Judicial Member disagreed, arguing that the exclusion in Section 115VD was clear and unambiguous. The Member emphasized that the statutory language should be given its natural meaning, and since the ship transported goods that could be provided on land, it did not qualify for the tonnage tax scheme. The Member criticized the reliance on the UK model and other foreign legislations, stating that the Indian law should be interpreted based on its clear language.

Third Member's Judgment:
The Third Member agreed with the Accountant Member, stating that the ship "M.V. Gem of Ennore" qualified for the tonnage tax scheme. The Member emphasized that the exclusion in Section 115VD was meant to prevent misuse of the scheme by businesses providing land-based services on ships, not to exclude ships performing core shipping activities like transporting bulk cargo. The Member highlighted that the law did not distinguish between coastal and international shipping for the tonnage tax scheme.

Conclusion:
The majority view held that the ship "M.V. Gem of Ennore" qualified for the tonnage tax scheme under Chapter XII-G of the Income-tax Act, 1961. The appeal of the Revenue was dismissed, and the benefit of the tonnage tax scheme was allowed to the assessee.

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