2015 (3) TMI 759 - AT - Income Tax

Reduction in claim for tax holiday under section 80-IA - assessee's power undertaking as a result of modification in the market price of the power captively consumed - Held that - The value adopted by the assessee be it value as per the independent third party trading transactions or as per power exchange (IEX etc.) or any other independent transaction (for the relevant period and which has taken place in the relevant area where the eligible unit is located) constitute market value in terms of the Explanation to section 80-IA(8). The value at which State grid has sold power to the cement unit of the assessee (average annual landed cost) also constitute market value in terms of the Explanation to section 80-IA(8) but the value at which State Grid or the third party has purchased power from the power unit of the asses see, which represents its power which is sold when not required by the cement unit, does not constitute market value in terms of the Explanation to section 80-IA(8). It is the principle and not the quantum which is deciding factor. Where a basket of market values are available for the relevant period and relevant geographical area where the eligible unit is situated, the assessee has discretion to adopt any one of them as market value and if the value adopted by the assessee is market value as explained above, it is not permissible for the Revenue to recompute the profits and gains of the eligible unit by substituting the said value (as adopted by the assessee) by any other market value . Thus delete the disallowance as made by the Assessing Officer in order under section 143(3) on account of deduction under section 80-IA of the Act - Decided in favour of assessee. Disallowance on account of expenditure incurred towards gifts - CIT(A) allowed part claim - Held that - CIT(Appeals) following the decision of the Tribunal vide order in the assessee's own case for the assessment year 2003-04 allowed relief of ₹ 31,11,876 and restricted the disallowance to ₹ 16,00,000. We find that facts for the year under consideration are similar with the facts of the earlier year. Following the decision of the Tribuna the disallowance confirmed by the Commissioner of Income-tax (Appeals) is reasoned one and hence we do not find any infirmity therein. - Decided against assessee. Disallowance of telephone expenses - Held that - Tribunal in the assessment year 2003-04 had set aside the issue to the file of the Assessing Officer to examine the contention of the assessee as there cannot be disallowance of personal expenditure in the hands of the company. Accordingly, following the order of the earlier year, we set aside this ground to the file of the Assessing Officer to verify the same after giving opportunity to the assessee before deciding the issue. - Decided in favour of assessee for staitistical purposes. Disallowance on account of sales tax subsidy - capital receipt v/s revenue receipt - CIT(A) deleted the disallowance - Held that - With the help of reasoning given in the orders by this Tribunal for the earlier years in the assessee's own case (assessment year 2004-05 to assessment year 2006-07) we reject the argument of the Department and hold that receipt on account of sales tax subsidy is capital in nature and not chargeable to tax. - Decided against revenue. Interest under section 244A on minimum alternate tax credit - Held that - Issue is covered in favour of the assessee by the decision of the hon'ble Bombay High Court in the case of Apar Industries Ltd. 2010 (4) TMI 151 - BOMBAY HIGH COURT wherein the hon'ble court has held that interest under section 244A is allowable on the refund of prepaid taxes after giving credit of brought forward minimum alternate tax under section 115JAA. Also in the case of CIT v. Bharat Aluminium Co. Ltd. 2011 (5) TMI 565 - DELHI HIGH COURT after considering the proviso to section 115JAA(2) observed that since the minimum alternate tax credit is available for adjustment and set off on the first date of the previous year even before the instalment of advance tax is due on the current income, the advance tax liability has to be worked out on the current income only after the adjustment and set off of minimum alternate tax credit brought forward from the earlier years and therefore interest under section 244A is payable to the assessee if refund arises from advance tax paid by it. - Decided in favour of assessee. Disallowance of carbon credit in computing book profit under section 115JB - Held that - In the present case, receipt on account of carbon credit, being purely capital in nature needs to be excluded in computation of the book profit. The Assessing Officer is accordingly directed to delete the addition made on account of carbon credit in computing book profit under section 115JB of the Act - Decided in favour of assessee.

Issues Involved:
1. Reduction in the claim for tax holiday under section 80-IA.
2. Disallowance of expenditure incurred towards gifts.
3. Disallowance of telephone expenses.
4. Treatment of sales tax subsidy as capital receipt.
5. Taxability of receipts from carbon credit.
6. Disallowance of profit on sale of fixed assets and investments in computing book profit under section 115JB.
7. Grant of interest under section 244A on minimum alternate tax credit.

Detailed Analysis:

1. Reduction in the claim for tax holiday under section 80-IA:
The primary issue was the reduction in the claim for tax holiday under section 80-IA due to the modification in the market price of the power captively consumed. The assessee had adopted the market value based on transactions between independent parties, while the Assessing Officer substituted this with the grid rate. The Tribunal held that as long as the assessee adopted a market value, the Revenue could not replace it with another market value. The Tribunal emphasized that the law does not restrict which market value to adopt, provided it represents the market value. The Tribunal deleted the disallowance made by the Assessing Officer.

2. Disallowance of expenditure incurred towards gifts:
The Assessing Officer disallowed Rs. 47,11,876 as expenditure on gifts, but the Commissioner of Income-tax (Appeals) allowed relief of Rs. 31,11,876 and restricted the disallowance to Rs. 16,00,000. The Tribunal upheld the decision of the Commissioner of Income-tax (Appeals), noting that the facts were similar to earlier years where similar disallowances were made.

3. Disallowance of telephone expenses:
The Tribunal addressed the disallowance of Rs. 1,00,000 as personal telephone expenses. Following the precedent set in the assessment year 2003-04, the Tribunal set aside this issue to the file of the Assessing Officer for verification, emphasizing that personal expenditure disallowance cannot be made in the hands of a company.

4. Treatment of sales tax subsidy as capital receipt:
The Tribunal held that the sales tax subsidy received under the Rajasthan Investment Promotion Scheme, 2003, was a capital receipt, not chargeable to tax. This decision was based on the purpose of the subsidy, which was to enable the assessee to set up a new unit or expand an existing unit, aligning with the principles laid down by the Supreme Court in CIT v. Ponni Sugars and Chemicals Ltd. The Tribunal rejected the Department's argument, emphasizing that the subsidy was not for running the business more profitably but for setting up or expanding the unit.

5. Taxability of receipts from carbon credit:
The Tribunal ruled that receipts from carbon credit are capital in nature and not chargeable to tax under sections 2(24), 28, 45, and 56 of the Act. This decision was in line with the Hyderabad Tribunal's decision in My Home Power Ltd. v. Deputy CIT and other similar cases. The Tribunal noted that carbon credits are entitlements for improving the environment and not generated from business activities, hence not taxable as business income or capital gains.

6. Disallowance of profit on sale of fixed assets and investments in computing book profit under section 115JB:
The Tribunal upheld the disallowance of profit on the sale of fixed assets and investments in computing book profit under section 115JB, following its earlier decision in the assessee's own case.

7. Grant of interest under section 244A on minimum alternate tax credit:
The Tribunal held that the assessee is entitled to interest under section 244A on the refund arising after giving credit for brought forward minimum alternate tax under section 115JAA. This decision was supported by the Bombay High Court's ruling in CIT v. Apar Industries Ltd. and the Delhi High Court's decision in CIT v. Bharat Aluminium Co. Ltd.

Conclusion:
- The Tribunal allowed the assessee's appeals partially, deleting disallowances related to section 80-IA, carbon credits, and adjustments in book profit under section 115JB.
- The Tribunal upheld the disallowances related to gifts and telephone expenses but remanded the latter for verification.
- The Department's appeals were dismissed, affirming the capital nature of sales tax subsidy and carbon credit receipts, and confirming the assessee's entitlement to interest under section 244A on minimum alternate tax credit.

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