2012 (8) TMI 447 - AT - Income Tax

Depreciation - asset concerned was not actually used for the purpose of business during the relevant previous year Held that - Depreciation is an allowance towards wear and tear of plant and machinery and it spreads over to a useable life for which depreciation rates have been provided under the rules. Once the asset has been purchased and is ready for use, the same is entitled to depreciation - The individual asset looses its identity and for allowing depreciation the entire block has to be considered. The ownership and the user of block of assets are the criteria for claim for depreciation. The user criteria gets fulfilled at the time when the assets form part of the block of assets and once the assets are part of block of assets, they loose their individual cost or written down value. The depreciation is allowable in the entire block of asset - depreciation on dredgers is to be allowed. Disallowance of lay up cost - assessee was unable to get a contract or a business after the agreement was terminated in the year 2003 Held that - Expenditure which has been incurred on maintenance of plant and machinery or asset so that it is ready for use, cannot be disallowed on the ground that no business was actually done and no income has been earned. Such an expenditure has to be treated as incurred wholly and exclusively for the purpose of business

Issues Involved:
1. Admissibility of depreciation on dredger Gemini and Multicat Coby.
2. Allowability of lay-up costs on dredger Gemini and Multicat Coby.
3. Transfer pricing adjustment on lease rentals of dredger Multicat Coby.

Detailed Analysis:

1. Admissibility of Depreciation on Dredger Gemini and Multicat Coby:
The primary issue was whether the assessee was entitled to claim depreciation on dredger Gemini and Multicat Coby, which were not actively used during the relevant assessment years but were kept ready for use. The assessee argued that the assets should be considered in passive use as they were maintained and kept ready for potential contracts. The CIT(A) accepted this contention, citing various judicial precedents that passive use qualifies for depreciation. The Tribunal upheld this view, emphasizing that the assets were part of the "block of assets" and the depreciation should be allowed on the entire block, not on individual assets. The Tribunal referenced cases such as CIT v. Nahar Exports Ltd. and G.R. Shipping Ltd. to support its decision, concluding that the depreciation was allowable since the assets were maintained in a ready-to-use state.

2. Allowability of Lay-Up Costs on Dredger Gemini and Multicat Coby:
The second issue was whether the lay-up costs incurred on maintaining the dredgers in a ready-to-use condition were deductible. The assessee claimed these costs under Section 37(1) of the Income-tax Act, 1961, arguing that the expenses were necessary to keep the business operational. The CIT(A) allowed the deduction, reasoning that the business was still active and the expenses were incurred out of commercial expediency. The Tribunal agreed, noting that the lay-up costs were essential for maintaining the assets and ensuring they were ready for use when new contracts were obtained. The Tribunal referenced decisions such as Lve Vairvavan Chettiar v. CIT and United Liner Agency of India (P) Ltd. v. CIT to support the conclusion that such expenses are allowable deductions.

3. Transfer Pricing Adjustment on Lease Rentals of Dredger Multicat Coby:
The third issue concerned the transfer pricing adjustment related to the lease rentals of dredger Multicat Coby. The Assessing Officer had contested the exclusion of maintenance and repair (M+R) costs from the lease rental rate. The CIT(A) examined the lease agreement and the VG Bouw valuation norms, which specified that certain M+R costs were to be borne by the charterer and not included in the lease rental rate. The CIT(A) also noted that the Transfer Pricing Officer (TPO) had previously ruled that no addition was necessary for the lease rentals in the assessment year 2003-2004. The Tribunal upheld the CIT(A)'s decision, finding no basis for the transfer pricing adjustment, as the agreement clearly delineated the responsibilities for M+R costs.

Conclusion:
The Tribunal dismissed both appeals filed by the revenue for the assessment years 2005-2006 and 2004-2005, upholding the CIT(A)'s decisions on all grounds. The judgments emphasized the principles of passive use for depreciation, the necessity of lay-up costs for maintaining business operations, and the proper application of transfer pricing norms.

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