2011 (6) TMI 395 - AT - Income Tax

MAT - Site restoration expenditure - treatment of allowance while computing the book profits u/s 115JB - assessee is a company incorporated in USA and which has established project office in India - assessee had entered into a Production Sharing Contract ( PSC ) with the Government of India along with ONGC and others for exploration, development and production of oil and gas in the east coast of India - Held that - It is found that site restoration expenditure is a claim in line with Article 12 of the PSC, the same is clearly an ascertained liability and not a contingent liability. Therefore, it is an allowable expenditure when computing the book profit u/s 115JB - Decided in favor of assessee Treatment of depletion while computing the total depreciation loss u/s 115JB - Held that - As it is noticed that the decision in the case of Enron Oil & Gas India Ltd. (2008 - TMI - 30581 - SUPREME COURT - Income Tax), has not been considered by any of the lower authorities and has also not been verified by the lower authorities that the claim of depletion by the assessee is in fact depreciation to the fixed asset representing exploration and development expenditure, we are of the view that this issue is liable to be restored to the file of the Assessing Officer for re-adjudication and we do so - Decided in favor of assessee for statistical purposes. Re-opening of the assessment u/s 148 beyond the period of 4 years from relevant AY - assessee contended change of opinion by Revenue - Held that - Original assessments were made u/s 143(1) and as it is noticed that the Assessing Officer has recorded his reasons for reopening of the assessment, in view of the decision in the case of Rajesh Jhaveri Stock Brokers (P.) Ltd. (2007 - TMI - 6563 - SUPREME Court - Income Tax), we are of the view that the re-opening for the assessment year 2002-03 is valid - Decided in favor of Revenue Validity of Revisionary powers u/s 263 - AY 05-06 - Held that -It is noticed that the assessment order passed by the AO does not discuss any of the issues which have been raised by the DIT in his SCN u/s 263 or his order passed u/s 263. In these circumstances, in view of the decision of the in the case of Malabar Industrial Co. Ltd. (2000 - TMI - 5786 - SUPREME Court - Income Tax), we find no error in the invocation of the revisionary powers u/s 263 - Decided in favor of Revenue

Summary

Issues Involved:
1. Depletion as Depreciation under Section 115JB.
2. Provision for Site Restoration as an Ascertained Liability.
3. Reopening of Assessment under Section 147.
4. Revision of Assessment under Section 263.
5. Applicability of Section 115JB to the Appellant.
6. Validity of Reopening of Assessment for AY 2002-03 and 2003-04.

Detailed Analysis:

1. Depletion as Depreciation under Section 115JB:
The primary issue is whether depletion should be considered as depreciation for computing book profits under Section 115JB. The assessee argued that depletion is a form of depreciation in the oil and gas industry, based on the Guidance Note of the ICAI and international accounting standards. The Tribunal noted that the PSC (Production Sharing Contract) is a code in itself, and as per the decision of the Supreme Court in the case of Enron Oil & Gas India Ltd., the PSC should be the guiding document for accounting practices. The Tribunal directed the Assessing Officer to verify whether the depletion claimed by the assessee represents a reduction in the value of capital expenditure on exploration and development, which should be treated as depreciation.

2. Provision for Site Restoration as an Ascertained Liability:
The assessee contended that the provision for site restoration is an ascertained liability mandated by the PSC, P&NG Rules, and DGH, and should be allowed as a deduction. The Tribunal agreed with the assessee, noting that the site restoration expenditure is a mandatory obligation and is scientifically estimated. The Tribunal held that the site restoration expenditure is an allowable expenditure when computing book profits under Section 115JB.

3. Reopening of Assessment under Section 147:
The Tribunal upheld the reopening of the assessment for AY 2002-03 and 2003-04, noting that the original assessments were made under Section 143(1) and the Assessing Officer had recorded reasons for reopening. The Tribunal relied on the decision of the Supreme Court in the case of Rajesh Jhaveri Stock Brokers (P.) Ltd., which allows for reopening of assessments even if the original assessment was completed under Section 143(1).

4. Revision of Assessment under Section 263:
The Tribunal upheld the revision of the assessment for AY 2005-06 by the learned DIT under Section 263, noting that the assessment order did not discuss the issues raised by the DIT. The Tribunal relied on the decision of the Supreme Court in the case of Malabar Industrial Co. Ltd., which allows for revision of assessment orders that are erroneous and prejudicial to the interests of the revenue.

5. Applicability of Section 115JB to the Appellant:
The assessee argued that the provisions of Section 115JB are not applicable to it based on the PSC entered with the Government of India. The Tribunal, however, noted that the PSC is subject to all fiscal legislation in India, including Section 115JB. The Tribunal dismissed the assessee's contention, relying on the decision of the AAR in the case of Niko Resources Ltd.

6. Validity of Reopening of Assessment for AY 2002-03 and 2003-04:
The Tribunal upheld the validity of the reopening of the assessment for AY 2002-03 and 2003-04, noting that the original assessments were made under Section 143(1) and the Assessing Officer had recorded reasons for reopening. The Tribunal relied on the decision of the Supreme Court in the case of Rajesh Jhaveri Stock Brokers (P.) Ltd.

Conclusion:
The Tribunal partly allowed the appeals of the assessee for AY 2002-03, 2003-04, 2005-06, and 2006-07, directing the Assessing Officer to re-adjudicate the issues in line with the decision of the Supreme Court in the case of Enron Oil & Gas India Ltd. The appeal of the revenue for AY 2006-07 was dismissed. The Tribunal upheld the reopening of assessments for AY 2002-03 and 2003-04 and the revision of the assessment for AY 2005-06 under Section 263.