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2013 (12) TMI 355 - AT - Income TaxDisallowance of depreciation of Rs. 36, 43, 57, 347 under section 32 The assessee has claimed depreciation of Rs.36, 43, 57, 347 on two dredgers namely Ta Lung and Ta Hsing - The aforesaid two dredgers were shown to have been purchased during the financial year 2007-08 relevant to the assessment year 2008-09 from M/s. Hung Huo Construction Co. Ltd. Taiwan and M/s. Jung Hsing Marine Construction Co. Ltd. Taiwan - Held that - The agreement to sale stipulates that till the payment of last instalment the seller was vested with exclusive charge over the dredger - In case of default in payment of instalments or extension of bank guarantee the seller had the authority to terminate the agreement take back possession of the dredger and forfeit the amount already paid - The assessee had no dominion over the dredger in exclusion of the seller before payment of the last instalment - The assessee not being the owner of the dredgers either wholly or partly is not entitled to claim depreciation on the dredgers Decided against assessee. Whether the instalment payment for purchase of asset be treated as hire charges - TDS u/s 195 Held that - There is nothing on record to suggest that the dredgers were given on hire and the assessee paid hire charges of USD 7, 00, 000 per month for each dredger - Payment of USD 7, 00, 000 commencing from January 2008 was towards monthly instalment of the purchase price payable for the dredgers Even assuming that USD 7, 00, 000 per month is towards hire charges the same cannot be allowed as deduction in view of section 40(a)(i) as the assessee has not deducted tax at source as per the provision contained under section 195 of the Act - Decided in favour of Revenue.
Issues Involved:
1. Disallowance of depreciation on dredgers. 2. Alternative claim for deduction of hire charges. Issue-Wise Detailed Analysis: 1. Disallowance of Depreciation on Dredgers: The primary issue was whether the assessee was entitled to claim depreciation on two dredgers, Ta Lung and Ta Hsing, under section 32 of the Income-tax Act, 1961. The Assessing Officer (AO) disallowed the depreciation claim of Rs. 36,43,57,347, arguing that the dredgers were not registered in India, and thus, the assessee could not be considered the owner. The assessee contended that registration was not legally required for "DUMB" dredgers and that ownership was established through agreements, protocols of delivery, and bills of sale. The Commissioner of Income-tax (Appeals) [CIT(A)] found that the agreements became effective only after Reserve Bank of India (RBI) approval, which was received on March 18, 2008, for Ta Lung and April 8, 2008, for Ta Hsing. The CIT(A) concluded that the seller retained exclusive charge over the dredgers until the final installment was paid and a no-due certificate was issued. Consequently, the CIT(A) held that the assessee could not claim depreciation as it was not the absolute owner of the dredgers. The Tribunal upheld the CIT(A)'s decision, emphasizing that the sale agreements were conditional and the seller retained exclusive rights until the final payment. The Tribunal noted that the assessee failed to provide evidence of ownership, such as customs declarations or proof of import duty payment. The Tribunal dismissed the assessee's appeal, concluding that the assessee was not the owner of the dredgers and thus not entitled to claim depreciation. 2. Alternative Claim for Deduction of Hire Charges: The assessee alternatively claimed that if depreciation was disallowed, the payments made towards leasing the dredgers should be allowed as an expenditure. The AO rejected this claim, stating that it must be made through a revised return and noting that no lease rentals were paid or included in the financial statements. The CIT(A) allowed the alternative claim, directing the AO to consider the payments as hire charges and allow them after examination. The Revenue appealed this decision, arguing that the CIT(A) erred in admitting the claim without evidence of payment or tax deduction at source (TDS). The Tribunal found the CIT(A)'s order to be lacking in detailed reasoning and evidence. It observed that there was no record of the dredgers being hired or hire charges being paid. The Tribunal also highlighted that even if the payments were considered hire charges, they could not be allowed as a deduction due to non-compliance with section 40(a)(i) of the Act, which mandates TDS on such payments. The Tribunal reversed the CIT(A)'s direction to allow deductions for hire charges, citing the lack of evidence and statutory non-compliance. The Tribunal allowed the Revenue's appeal, dismissing the assessee's claim for deduction of hire charges. Conclusion: The Tribunal dismissed the assessee's appeal concerning the disallowance of depreciation on the dredgers and allowed the Revenue's appeal against the CIT(A)'s direction to allow deductions for hire charges. The Tribunal held that the assessee was not the owner of the dredgers and thus not entitled to claim depreciation, and also found no basis for allowing the alternative claim for hire charges due to lack of evidence and non-compliance with TDS provisions.
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