2013 (6) TMI 46 - HC - Income Tax

Set off of carried forward losses before claiming deduction under chapter VI - Deduction u/s 80HHC - computation of deduction under section 80HHC - held that - We reject the contention that computation of business profits for the purpose of section 80HHC(3) of the Act can only be in terms of Chapter IV and as set off or carried forward losses occurring in section 72 is in Chapter VI of the Act, cannot be factored, for the reason that computation should be in the first instance as per the provisions of the Act and, secondly, though section 72 of the Act does occur in Chapter VI, it qualifies for computation in a situation where there is carried forward unabsorbed depreciation allowance not absorbed for earlier years in terms of section 72(2) of the Act and such is the present situation. This exercise is not because of any provisions of Chapter VI-A, but by the operation of the provisions of the Act itself. Section 72(2) of the Act also contemplates that allowance which are brought forward shall be first given effect to, i.e., whatever brought forward unabsorbed depreciation allowance was there, that should be first given effect to. There can be a situation where the amount which qualifies for deduction under section 80HHC of the Act may be more than the available profits of the assessee and in view of section 80A(2) of the Act that has to be limited to the available profits, but if the method suggested by Sri Shankar, learned counsel for the appellant, is to be employed, even in such situation if the depreciation is excluded and as was sought to be done, deduction under section 80HHC of the Act is first done, the amount left over may not be sufficient to give a set off against unabsorbed depreciation of earlier years, in which event, it only amounts that the assessee is being given a benefit much more than the ceiling contemplated under section 80A of the Act. If that is so, it is an indirect way of defeating the purpose and object of section 80A(2) of the Act and, therefore, also we cannot accept the argument as the argument if accepted, it runs contrary to section 80A(2) of the Act and can defeat the very purpose of section 80A(2) of the Act. - Decided against the assessee.

Issues Involved:

1. Deduction under section 80HHC after setting off unabsorbed depreciation.
2. Validity of the method of computation of deduction under section 80HHC.
3. Claiming the benefit of section 80HHC on total income after deduction of unabsorbed losses and depreciation.
4. Tribunal's failure to provide findings on specific grounds raised.
5. Consideration of notional duty benefit as cash assistance under section 28(iiib).

Issue-wise Detailed Analysis:

1. Deduction under section 80HHC after setting off unabsorbed depreciation:

The court addressed whether the Tribunal was justified in holding that the benefit of deduction under section 80HHC can only be availed after setting off unabsorbed depreciation from earlier years. This issue was covered by a prior decision of the court against the assessee, referencing J.K. Industries Ltd. v. Asst. CIT [2013] 351 ITR 434 (Karn). The court reaffirmed that the deduction under section 80HHC should be computed after setting off unabsorbed depreciation.

2. Validity of the method of computation of deduction under section 80HHC:

The court examined the method approved by the Tribunal for computing the deduction under section 80HHC. The assessee argued that the computation should not include the unabsorbed depreciation of earlier years as it would result in a duplicate deduction. The court, however, found that the computation should follow the provisions of the Act, including the adjustments for unabsorbed depreciation as per section 72(2), which is part of the gross total income computation. The court rejected the contention that there was a duplication of deduction and upheld the Tribunal's method.

3. Claiming the benefit of section 80HHC on total income after deduction of unabsorbed losses and depreciation:

The court considered whether the benefit of section 80HHC can be claimed on total income after deducting unabsorbed losses and depreciation. The court reiterated that the computation of profits for section 80HHC should factor in the unabsorbed depreciation as per the Act's provisions. The court emphasized that the total income must be computed in accordance with the Act before allowing deductions under Chapter VI-A, including section 80HHC. The court found no merit in the argument that the unabsorbed depreciation should not be factored into the computation.

4. Tribunal's failure to provide findings on specific grounds raised:

The court addressed the issue of the Tribunal not giving findings on specific grounds raised by the assessee. The court noted that the Tribunal had not dealt with certain aspects, such as the notional duty benefit claimed by the assessee. However, the court found that the Tribunal's overall findings were consistent with the legal framework and did not warrant a remand or further examination.

5. Consideration of notional duty benefit as cash assistance under section 28(iiib):

The court examined whether the notional duty benefit derived by the assessee amounts to cash assistance under section 28(iiib). The assessee contended that certain amounts, including excise duty on finished goods exported and duty on duty-free imports, should be considered as cash assistance. The court rejected this argument, stating that such amounts must be actual and not notional. The court emphasized that the amounts should be either received or receivable and not based on hypothetical or notional figures. The court upheld the Tribunal's decision to deny the additional benefits claimed by the assessee on a notional basis.

Conclusion:

The court answered all questions against the assessee and in favor of the Revenue. The appeal was dismissed, and the Tribunal's method of computation and findings were upheld. The court emphasized the importance of following the Act's provisions for computing total income and deductions, including factoring in unabsorbed depreciation and ensuring that claimed benefits are based on actual figures.

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