2007 (5) TMI 236 - HC - Income Tax

Engineering fees - Payment made by the assessee to the foreign company for setting up of a float glass plant payment was not in connection with information or technique likely to assist in the manufacture or processing collaboration agreement did not relate to the manufacture or processing of goods by the assessee. Consequently, it must be held that the assessee is entitled to depreciation u/s 32 and not for deduction u/s 35AB for the expenditure incurred

Summary

Issues:
1. Entitlement to depreciation on engineering service fees paid to a foreign company.
2. Determining if the assessee is entitled to claim depreciation under Section 32 of the Income Tax Act or deduction under Section 35AB of the Act.

Analysis:
1. The primary issue in this case was whether the assessee is entitled to depreciation on engineering service fees paid to a foreign company or if a deduction under Section 35AB of the Income Tax Act is applicable. The Tribunal concluded that the payment made by the assessee was for setting up the float glass plant, not for the manufacture or production of float glass. The collaboration agreement clearly outlined the purpose of the payment as being for the setting up of the plant. The Tribunal found that the fees paid were towards setting up the plant and not for the manufacture of goods, leading to the assessee being entitled to claim depreciation.

2. The second issue revolved around whether the assessee is entitled to claim depreciation under Section 32 of the Act or deduction under Section 35AB. The Tribunal analyzed the Explanation to Section 35AB, which defines "know-how" as industrial information or technique assisting in the manufacture or processing of goods. As the payment was for setting up the plant and not for manufacturing goods, the Tribunal held that the collaboration agreement did not pertain to the manufacture or processing of goods. Therefore, the assessee was entitled to depreciation under Section 32 and not deduction under Section 35AB for the expenditure incurred.

3. Additionally, the Tribunal clarified that the word "plant" in Section 43(3) of the Act has a broad definition, including technical know-how like drawings, designs, and plans, making it a depreciable asset. The Tribunal's decision was upheld, stating that no substantial question of law arose for consideration, and the appeal was dismissed.

This judgment highlights the importance of interpreting collaboration agreements accurately to determine the nature of expenses incurred and the corresponding tax treatment under the Income Tax Act. The detailed analysis provided by the Tribunal regarding the purpose of payments and the applicability of depreciation provisions demonstrates a thorough examination of the facts and legal provisions involved in the case.