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2017 (10) TMI 1578 - AT - Income TaxDisallowance of deduction u/s 80IAB - income derived from Operation and Maintenance Activities of SEZ are not eligible for such deduction - HELD THAT - As decided in own case 2016 (8) TMI 696 - ITAT AHMEDABAD from going through the proviso (2) of section 80-IAB of the Act as referred above which says that if the work of operation and maintenance of SEZ is transferred from one developer to another then the deduction allowable in subsec. (1) of sec. 80-IAB will be allowed to transferee developer for the remaining period of the remaining of consecutive 10 years. This proviso gives a very clear picture that when the transferee is eligible for deduction u/s 80-IAB for the income from operation and maintenance of SEZ then certainly transferor i.e. developer is eligible for deduction u/s 80-IAB from operation and maintenance. From going through the letter issued by Government of India Ministry of Commerce Industries dated 21st June 2006 to the assessee for setting up of a sector specific Special Economic Zone for Pharmaceuticals at Ahmedabad we find that in clause (ii) under the main clause (III) referring to general condition it reads that operation and maintenance of the facilities will be met as per the standard in the specific manner and proposition of the user. Thus we are of the view that assessee being a developer of SEZ is eligible for deduction u/s 80-IAB for income earned from operation and maintenance of SEZ. - Decided in favour of the assessee. Depreciation on computer software licence - @60% instead of @25% allowed by the AO - HELD THAT - It is almost a settled issue that software application which are having validity for long term period are basically system software on which computer hardware runs and it is impossible to use computer without having such software installed on it and therefore such licensed software are subject to depreciation @ 60% and Id. CIT(A) has done so. We find no reason to interfere with the order of Id. CIT(A) on this issue.
Issues Involved:
1. Depreciation rate on computer software licenses. 2. Deduction under Section 80-IAB of the Income Tax Act for income from operation and maintenance of Special Economic Zones (SEZ) and income from the sale of scrap. Issue 1: Depreciation Rate on Computer Software Licenses The primary contention of the Revenue was that the Ld. Commissioner of Income-Tax (Appeals)-XIV, Ahmedabad erred in allowing depreciation at 60% on computer software licenses instead of the 25% allowed by the Assessing Officer (AO). The AO had treated the software as an intangible asset eligible for a 25% depreciation rate as per part-'B' of the New Appendix-1 of Income-Tax Rules. Upon appeal, the Ld. CIT(A) followed the order of his predecessor for A.Y. 2009-10, which stated that computer software, due to its rapid obsolescence, should be eligible for a 60% depreciation rate. The Ld. CIT(A) directed the AO to verify the period for which the software was put to use and to allow depreciation at 60% accordingly. This decision was upheld by the Tribunal, which found no reason to interfere with the Ld. CIT(A)'s order, stating that software applications with long-term validity are essential for running computer hardware and thus qualify for a 60% depreciation rate. Issue 2: Deduction under Section 80-IAB for Income from Operation and Maintenance of SEZ and Income from Sale of Scrap The Revenue also contested the Ld. CIT(A)'s decision to allow deductions under Section 80-IAB of the Income Tax Act for ?3,25,07,625 from income related to the operation and maintenance of SEZ and ?18,250 from the sale of scrap. The AO had denied these deductions, interpreting that Section 80-IAB only applied to income from developing SEZs, not from their operation and maintenance. The Ld. CIT(A) referred to the appellant's case for A.Y. 2009-10, which had allowed such deductions. The CIT(A) reasoned that the term "developer" under Section 80-IAB includes the activities of operating and maintaining SEZs, as per the letter of approval granted to the appellant by the Central Government. This interpretation was based on a combined reading of Section 80-IAB of the Income Tax Act and Sections 2(g) and 3(10) of the Special Economic Zones Act, which define a developer as a person approved for developing, operating, and maintaining an SEZ. The Tribunal upheld this view, stating that the activities of development, operation, and maintenance are continuous and integral. The Tribunal noted that the second proviso to Section 80-IAB, which allows deductions for transferee developers, implies that the original developer is also eligible for such deductions. The Tribunal also confirmed that income from the sale of scrap related to SEZ development qualifies for deduction under Section 80-IAB, as supported by the Hon'ble Gujarat High Court's decision in DCIT Vs. Core Healthcare Ltd. Conclusion The Tribunal dismissed the Revenue's appeal, affirming the Ld. CIT(A)'s decisions on both issues. The Tribunal found that the depreciation rate for computer software licenses should be 60% and that the deductions under Section 80-IAB for income from operation and maintenance of SEZ and the sale of scrap were justified. The Tribunal also clarified that the reliance on the Hon'ble Supreme Court's judgment in Prakash Nath Khanna was misplaced, as the language of Section 80-IAB is clear and unambiguous.
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