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2012 (10) TMI 178 - HC - Income TaxScrap sales - whether included in the total turnover while computing deduction u/s 80HHC - Held that - As decided in COMMISSIONER OF INCOME-TAX Versus SHIVA DISTILLERIES LTD. 2007 (2) TMI 103 - HIGH COURT, MADRAS scrap sales could not be taken as a part of turnover & should be excluded on the computation of the total turnover for the purpose of Section 80 HHC - in favour of assessee. Computation of deduction u/s 80HHC - whether 90% of gross interest without deducting expenses incurred in earning the interest income has to be excluded from the business profits - Held that - As decided in ACG Associates Capsules Pvt. Ltd. vs. CIT 2012 (2) TMI 101 - SUPREME COURT OF INDIA Ninety per cent of not the gross interest/rent but only the net interest/rent, which has been included in the profits of the business of the assessee as computed under the heads PGBP is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business - in favor of assessee. Disallowance of depreciation - assessee claimed deduction u/s 35AB - Held that - The expenditure incurred by the assessee was for the purpose of getting the technical knowhow by the assessee on manufacturing and processing of goods. Going by the provisions of Section 35AB and the Explanation on technical knowhow no hesitation in holding that the assessee is entitled to the relief under Section 35AB only, and not to the claim of depreciation under Section 32 relying on decision in case Godrej Soaps Limited, Escorts And Another Versus Union of India And Others 1992 (10) TMI 1 - SUPREME COURT - against assessee. Non-compete fee paid to Sri.U.Mohan Rao - revenue expenditure v/s capital expenditure - Held that - It is not denied by the Revenue that U.Mohanrao was the Chairman and Managing Director of some of the companies which got merged with the assessee company. The said U.Mohanrao had access to all information starting from manufacturing process, knowhow to the clientele and the products, including the pricing of the products. By a process of amalgamation, the assessee had acquired the business of the amalgamating companies. However, for the fruitful exercise of its business as a business proposition, the assessee thought it fit to enter into a non-compete agreement with a person who had the knowledge of the entire operations, so as to get the full yield of the amalgamated company s business. In that context the assessee took a commercial decision to pay non-compete fee to U.Mohanrao and going by decision reported in CIT vs. Coal Shipments P. Ltd (1971 (10) TMI 6 - SUPREME COURT) that the payment was in respect of the performing of the business of the assessee, hence no hesitation in holding that the expenditure is only on revenue account and not on capital account - in favour of assessee.
Issues Involved:
1. Inclusion of scrap sales in total turnover for Section 80HHC deduction. 2. Exclusion of 90% of gross interest from business profits for Section 80HHC deduction. 3. Classification of non-compete fee as capital expenditure. 4. Eligibility for depreciation under Section 32 versus deduction under Section 35AB. Detailed Analysis: Issue 1: Inclusion of Scrap Sales in Total Turnover for Section 80HHC Deduction The first issue pertains to whether scrap sales should be included in the total turnover while computing the deduction under Section 80HHC. The court referenced previous decisions, specifically [2007] 293 ITR 108 (Commissioner of Income Tax vs. Shiva Distilleries Limited) and [2008] 297 ITR 107 (CIT vs. Ashok Leyland Ltd.), which were in favor of the assessee. Consequently, the court held that scrap sales should be included in the total turnover, and the Tribunal's order to the contrary was incorrect. Issue 2: Exclusion of 90% of Gross Interest from Business Profits for Section 80HHC Deduction The second issue involved whether 90% of gross interest or net interest should be excluded from business profits while computing the deduction under Section 80HHC. The court referred to the decision in [2012] 343 ITR 89 (ACG Associates Capsules Pvt. Ltd. vs. CIT), which established that only net interest should be considered for the 90% exclusion. Therefore, the court ruled in favor of the assessee, determining that only after netting, the interest for the 90% exclusion should be considered. Issue 3: Classification of Non-Compete Fee as Capital Expenditure The third issue was whether the non-compete fee paid to U.Mohanrao should be classified as capital expenditure. The court examined the nature of the non-compete agreements, which were aimed at preventing U.Mohanrao from engaging in competing activities that could harm the assessee's business. The court noted that the expenditure was intended to facilitate the assessee's business operations more effectively and profitably, without affecting the fixed capital. Citing principles from [1980] 124 ITR 1 (Empire Jute Co. Ltd. vs. Commissioner of Income Tax) and [1989] 177 ITR 377 (Alembic Chemical Works Co. Ltd.), the court concluded that the expenditure was revenue in nature, not capital. Thus, the court set aside the Tribunal's order and allowed the assessee's claim. Issue 4: Eligibility for Depreciation under Section 32 versus Deduction under Section 35AB The fourth issue concerned whether the assessee was entitled to depreciation under Section 32 or a deduction under Section 35AB for expenditure on technical knowhow. The court reviewed the documents and found that the expenditure was for obtaining technical knowhow related to manufacturing and processing goods. According to the provisions of Section 35AB and the explanation on technical knowhow, the court held that the assessee was entitled to relief under Section 35AB only, not to the claim of depreciation under Section 32. Therefore, the Tribunal's decision on this matter was confirmed. Conclusion: The court ruled in favor of the assessee on the first and second issues, holding that scrap sales should be included in total turnover and only net interest should be considered for the 90% exclusion under Section 80HHC. On the third issue, the court determined that the non-compete fee was a revenue expenditure, not a capital expenditure. However, on the fourth issue, the court upheld the Tribunal's decision that the assessee was entitled to a deduction under Section 35AB, not depreciation under Section 32. The Tax Case Appeal was disposed of accordingly, with no costs.
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