2012 (4) TMI 262 - AT - Income Tax

Profit on sale of ships - CIT(A) stated profit from sale not attributable to the core activities defined for a tonnage tax company and as such is not to be include in the Book Profit of a tonnage tax company u/s 115 V-0 which is to be excluded in determining the Book Profits u/s 115JB of Income Tax Act - Assessee contented that it is carrying on only one activity of operation of ships and the entire income relating to ships as recorded in the profit & loss account was to be taken as profit derived from the activities of tonnage tax company and the same was to be reduced from the book profit for the purpose of sec.115JB Held that - As per the provisions section 115VI(i)(2), core activities of a tonnage tax company mean, inter alia, its activities from operating qualifying ships - the activity of sale of old ships cannot be regarded as an activity from operating qualifying ships favour of revenue. Income from sale of ship - Held that - this issue is squarely covered against the assessee by the decision of Special Bench of ITAT at Hyderabad in the case of Rain Commodities Ltd. (2010 - TMI - 203366 - ITAT HYDERABAD) - provisions of section 115JB have an overriding effect upon other provisions of the Act and, therefore, the method of computation of book profit provided in the Explanation to section 115JB should be followed while computing the book profit and the normal provisions of computation of profit under any head of the Act shall not be applicable in favour of revenue.

Issues Involved:
1. Treatment of profit on the sale of ships in the computation of book profit under section 115JB of the Income Tax Act.
2. Whether income from the sale of ships is a capital receipt and its inclusion in the book profit computation under section 115JB.

Issue-wise Detailed Analysis:

Issue 1: Treatment of profit on the sale of ships in the computation of book profit under section 115JB of the Income Tax Act.

The assessee, a shipping company, filed its return of income declaring a total income, including tonnage income, and book profit under section 115JB. During assessment, the AO noticed that the assessee excluded book profit derived from tonnage tax activities, including profit from the sale of ships, while computing book profit under section 115JB. The AO contended that only profits attributable to core and incidental activities related to shipping should be included, and since the sale of ships did not qualify, the profit from the sale of ships was added to the book profit.

The CIT (A) upheld the AO's decision, stating that the profit from the sale of ships was not attributable to core activities as per section 115VI and should not be excluded while computing book profit under section 115JB. The CIT (A) referred to the provisions of section 115VN, which states that profit from the transfer of capital assets forming part of the block of qualifying assets should be taxed under sections 45 to 51, and thus, such profit should not be treated as part of the tonnage tax company's income under section 115VI.

The Tribunal agreed with the CIT (A), noting that the activity of selling old ships is not an activity from operating qualifying ships and does not form part of core activities as per section 115VI. The Tribunal concluded that profits from the sale of ships are not part of the relevant shipping income of a tonnage tax company and should not be excluded from book profit under section 115JB.

Issue 2: Whether income from the sale of ships is a capital receipt and its inclusion in the book profit computation under section 115JB.

The assessee alternatively argued that the profit from the sale of ships is a capital receipt and should not be included in the book profit under section 115JB. The CIT (A) dismissed this argument, referencing the Supreme Court's judgment in Apollo Tyres Ltd., which stated that the AO cannot adjust book profit beyond the permissible adjustments under section 115JB.

The Tribunal upheld this view, referencing the Special Bench decision in Rain Commodities Ltd., which held that capital gains are not excluded from book profit computation under section 115JB. The Tribunal reiterated that the provisions of section 115JB have an overriding effect, and the method of computation provided in the Explanation to section 115JB must be followed.

Conclusion:

The Tribunal dismissed the appeal, concluding that:
1. Profit from the sale of ships is not part of the core activities of a tonnage tax company under section 115VI and should not be excluded from book profit under section 115JB.
2. The profit from the sale of ships, being a capital receipt, is not excluded from book profit computation under section 115JB as per the overriding provisions of section 115JB.

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