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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’, NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI O.P. KANT
ORDER PER O.P. KANT, AM:
This appeal by the assessee is directed against order dated 28/02/2017 passed by the ld. Commissioner of Income-tax (Appeals)-7, New Delhi [in short the ‘ld. CIT(A)’ ], for assessment year 2012-13 raising following grounds: 1. That the order of the learned Commissioner of Income Tax (Appeals) is bad both on law and facts.
The part of impugned order is contrary to the evidence and material on record, contrary to the principles of law and binding judgments of the Court, contrary to the relevant provisions of the Act and deserves to be quashed and set aside.
3. That the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of learned assessing officer in restricting the claim of deduction u/s 80IA to Rs. 167,83,87,158/- against the appellant claim of deduction u/s 80IA of the Act of Rs. 187,58,66,703/- in complete disregard of the fact that in view of provisions of section 80-IA(5) of the Income Tax Act, 1961 the profit from the eligible business for the
2. Briefly stated facts of the case are that the assessee filed return of income on 28/09/2012, declaring total income at Nil, wherein it declared gross total income of Rs.1,87,58,66,703/- and thereafter claimed deduction under section 80IA of the Income-tax Act, 1961 (in short ‘the Act’) amounting to Rs.1,87,58,66,703/-. The case was selected for the scrutiny assessment. During the scrutiny assessment, the Assessing Officer observed that the gross total income of Rs.1,87,58,66,703/- of the assessee constituted of income under the head “profit and gains of business or profession” of Rs.1,67,83,87,158/- and income from other sources of Rs.19,74,79,545/-. According to the Assessing Officer, the assessee was entitled for deduction under section 80-IA of the Act in respect of the income under the head of ‘profits and gains of business or profession, amounting to Rs.1,67,83,87,158/- and not in respect of the ‘income from other sources’ of Rs.19,74,79,545/- and accordingly, he limited the deduction u/s 80IA to Rs.1,67,83,87,158/- and made addition of Rs.19,74,79,545/- to the total income. On further appeal, ld. CIT(A) held that the profit of the eligible unit which was computed by the assessee at Rs.203,36,83,278/-, was to be reduced by the loss of Rs.35,52,96,120/- of other unit for determination of allowable deduction of Rs.1,67,83,87,158/- under section 80IA of the Act. The finding of the ld. CIT(A) are reproduced as under: “4.4. I have carefully considered the order and written submissions filed by the Ld. AR. The scheme of computation of income, deduction as well as tax under the Income tax Act is clear No doubt, the appellant had profit of Rs.203.37 crores from the eligible unit which is more than the GTI of Rs. 187.59 crores and it claimed deduction to the extent of Rs 187.59 crores only. In my view, this is against the provisions of the Act. As per the scheme of computation, the income under each ‘source’ under a particular ‘head’ of income needs to be computed first. Then, the loss, if any, from any source needs to be set off against the profit from the other (Intra-head set off). Thus, income under a particular ‘head’ is computed. That income, again needs to be set off against the 'loss’, if any, under another ‘head’ as per law. Thus, GTI is computed. Against this, deductions permissible in Chapter-VIA are to be considered. In this connection, the provision of section 80AB of the Act is apposite and is reproduced below for ready reference: "80AB. Where any deduction is required to be made or allowed under any section included in this Chapter under the heading "C — Deductions in respect of certain incomes" in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income.” 4.5. In this case, the profit of the eligible unit which was included in the GTI is what had been left after the loss of the other unit had been set off. Hence, as per the provision of section 80AB, it is only the net amount of Rs. 167.84 crores which constitutes the profit ‘derived from' the eligible unit. Consequently, it is only that sum which is eligible for deduction u/s 80-lA of the Act. The appellant’s computation is amounting to setting off the loss of the other business unit against the Income from Other Sources (which is a different 'head’ altogether) and preserving the profit from the eligible unit for claiming deduction u/s 80-IA. This, manner is not sanctioned by the scheme of the Act as discussed above Another way of looking at it is that the appellant has by so manipulating the aggregation and set off in this manner, claimed deduction u/s 80-IA in respect of the Income from other Sources also (Rs. 19.75 crores) over and above the profit from business (Rs.168 crores). In so far as the deduction is available only in respect of profit derived from the eligible business, the deduction to the extent of Rs.19.75 crores claimed by the appellant is not allowable.
4.6. The overriding effect of section 80AB on the sections dealing with deductions in Chapter-VI A of the Act was emphatically clarified by the Hon. Supreme Court in the case of IPCA Laboratory Ltd. v Deputy Commissioner of Income-tax [2004] 266 ITR 521 (SC). The relevant part of the decision is reproduced below for ready reference:
"4.... It shows that even though section 80HHC has to be construed in the light of the object of giving incentives, it still has to be interpreted as per its language. An interpretation which leads to an absurd result or a result not contemplated by its language cannot be given...
12. Section 80AB is also in Chapter VI-A. It starts with the words “where any deduction is required to be made or allowed under any section of this Chapter". This would include section 80HHC Section 80AB further provides that “notwithstanding anything contained in that section" Thus section 80AB has been given an overriding effect over all oilier sections in Chapter VIA. Section 80HHC does not provide that its provisions are to prevail over section 80AB or over any other provision of the Act. Section 80HHC would thus be governed by section 80AB Decisions of the Bombay High Court and the Kerala High Court to the contrary cannot be said to be the correct law. Section 80AB makes it dear that the computation of income has to be m accordance with the provisions of the Act. If the income has to be computed in accordance with the provisions of the Act, then not only profits but also losses have to be taken into consideration."
4.7. In that case, the Apex Court was dealing with deduction u/s 80HHC of the Act. But the ratio applies to the deduction u/s 80-IA also because that section is also similarly governed by the overriding effect of section 80AB. The facts of this case are also on all fours with the case of IPCA Laboratory Ltd. (supra). In that case also, the company had profit from one and loss from other part of the business and wanted the loss to be ignored. The contention was emphatically rejected by the Hon. Court. The decision in the case of IPCA Laboratory Ltd. (supra) has been followed in a number of decisions by Courts. The principle that deduction under Chapter VI-A can be allowed only to the extent the eligible profit forms part of the Gross Total Income is too well established to allow any controversy Considering that only the sum of Rs.167.84 crores (out of the total profit of Rs.203.37 crores of the eligible unit) was included in the gross total income, the AO was correct in restricting deduction u/s 80-IA to that extent only and, consequently, in adding Rs.19.75 crores to the returned income. The addition made by the AO is confirmed. This ground of appeal is ruled against the appellant.”
Before us, the Ld. counsel of the assessee filed a paper-book containing pages 1 to 62 and submitted that the assessee has claimed deduction under section 80IA in respect of the profit of eligible unit to the extent of gross total income available as per section 80A(2) of the Act. The Ld. counsel in support of his contention relied on the decision of the Hon’ble Delhi High Court in the case of CIT versus Sona Koyo Steering Systems Ltd reported in (2010) 321 ITR 463 .
The Ld DR supported the order of the lower authorities and submitted that deduction under section 80IA has been rightly restricted to the net income under the profit and gains of the business of the assessee. 5. We have heard rival submissions and perused the relevant material on record. The assessee is a company of Government of National Capital Territory of Delhi. The assessee has been operating two separate undertakings termed as project GT-1 at Raj Ghat and another undertaking engaged in the business of generation and distribution of power located at Bawana. It is claimed by the assessee that commercial operations in respect of GT-1 Raj Ghat commenced in July, 2002 and as such the income arising out the business of generation and distribution of power by GT-1 Raj Ghat (undertaking) was eligible for deduction under section 80IA of the Act. The unit-wise profit allocation has been provided by the assessee in the computation of total income, which is reproduced as under:
5.1 The assessee has explained that it has claimed deduction under section 80-IA of the Act on the basis of the certificate issued by the Auditor in form No. 10CCB dated 28/08/2012, a copy of which has been placed at pages 35 to 41 of the paper book. According to the certificate, after making adjustment to the book profit of the eligible units, the eligible deduction has been computed at Rs.203,36,83,278/-. While working this deduction, the interest from bank of Rs.15,37,81,256/- has been reduced from the eligible profit for deduction. The assessee, then computed the gross total income at Rs.187,58,66,703/- as under and claimed the deduction limited to the gross total income: Profit from Eligible Unit Rs.203,36,83,278/- Loss from Other Unit Rs.35,52,96,120/- Income from other source Rs.19,74,79,545/- Gross Total Rs.187,58,66,703/- Less: Rs.187,58,66,703/- Taxable Income Nil 5.1 The claim of the assessee is that deduction under section 80IA has to be computed in respect of the profit of the eligible unit only in terms of section 80-IA(5) of the Act, which according to the assessee is Rs.203,36,83,278/-. But according to the section 80A(2), deduction under Chapter VIA has to be restricted to the extent of the gross total income. According to the assessee, the gross total income for the year under consideration, being Rs.187,58,66,703/-, the deduction under section 80-IA of the Act was accordingly restricted to Rs.187,58,66,703/- and net taxable income of nil was declared in the return of income. 5.2 But, according to the Revenue for computing eligible profit for deduction under section 80IA the Act, loss of non-eligible units should be first adjusted with the profit of the eligible unit and deduction should be allowed in respect of net profit under the head profit and gain of the business/profession of the assessee. 5.3 In view of the arguments raised before us, the dispute is whether any loss of non-eligible unit should be adjusted with the profit of the eligible unit for determining profit eligible for deduction under section 80IA of the Act. The Section 80IA(1) prescribe for deduction for an amount equal to 100% of the profit and gains derived from the eligible business undertaking. Further, section (5) of the section 80-IA prescribe that while computing the profit in gains of the eligible business under sub- section (1), the source of income of the eligible business has only to be considered for deduction. For ready reference, the subsection (5) of section 80-IA is reproduced as under: “80-IA (5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.”
5.4 Thus, section 80-IA(5) prescribe maximum deduction which could be claimed under section 80-IA, but the section 80A(2) restrict the aggregate amount of deduction under chapter VIA (the deduction under Section 80-IA is in the chapter VIA), which reads as under: “Deductions to be made in computing total income. 80A. (1) …………………………………………………………….. (2) The aggregate amount of the deductions under this Chapter shall not, in any case, exceed the gross total income of the assessee.”
5.5 The gross total income has been further defined in section 80B(5) as under: “Definitions.
80B. (5) "gross total income" means the total income computed in accordance with the provisions of this Act, before making any deduction under this Chapter; 5.6 The identical question of quantum of deduction which could be claimed under section 80-IA subject to the limit prescribed under section 80A has been decided in the case of Sono Koyo Steering Systems Ltd. (supra) by the Hon’ble Delhi High Court as under:
“4. After hearing the counsel for the parties, we feel that the following substantial question of law arises for our consideration.
Whether, in the facts and circumstances of the case, the Income-tax Appellate Tribunal erred in law in holding that the loss of one unit could not be set off against the other unit in view of the provisions of Section 80-I(1)(6) and 80-B (5) of the Income-tax Act, 1961 ?
Since the issue involved is purely legal, the counsel for the parties agreed that the matter may be disposed of at this stage itself without the requirement of filing any paper book. We have, therefore, heard the counsel for the parties at length on the aforesaid question.
6. The learned counsel for the appellant submitted that the question of adjustment / setting off of the loss of one unit as against the profit of the other unit stands covered by the decision of the Supreme Court in the case of Synco Industries Ltd v. Assessing Officer (Income-tax) and Another: 299 ITR 444 (SC). The learned counsel for the appellant, however, fairly submitted that there is a decision of a Division Bench of this court in the case of Commissioner of Income- tax v. Dewan Kraft Systems P. Ltd: 297 416/09, 761/09 & 788/09 Page No.4 of 11 ITR 305 (Delhi) which has considered the pari materia provisions of Section 80-IA(7) of the said Act and has held against the revenue. The learned counsel submits that though the decision of the Delhi High Court is against him, the latter decision of the Supreme Court in the case of Synco Industries Ltd. (supra) is clearly in his favour and, therefore, the question ought to be answered in favour of the revenue and against the assessee.
On the other hand, the learned counsel appearing on behalf of the assessee, submitted that the decision of this court in C.I.T. v. Dewan Kraft Systems (supra) is clearly in favour of the assessee and there is nothing in the Supreme Court decision in Synco Industries Ltd. (supra) which would enable us to detract from that position. Consequently, he submitted that the question be answered in favour of the assessee and against the revenue.
Section 80-I(1) reads as under:-
80-I. Deduction in respect of profits and gains from industrial undertakings after a certain date, etc. - (1) Where the gross total income of an assessee includes any profits and gains derived from an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to twenty per cent thereof: Provided that in the case of an assessee, being a company, the provisions of this sub-section shall have effect in relation to profits and gains derived from an industrial undertaking or a ship or the business of a hotel as if for the words twenty per cent", the words "twenty- five per cent" had been substituted."
Section 80-I (6) reads as under:-
(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub-section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.
Section 80-B (5), which defines gross total income, is as follows:-
"(5) "gross total income means the total income computed in accordance with the provisions of this Act, before making any deduction under this Chapter.
A plain reading of the said provisions makes it clear that gross total income referred to in Section 80-I has to be computed in accordance with the provisions of the said Act before making any deduction under Chapter VI- A. It is, therefore, clear that while computing gross total income, the deductions referred to in Chapter VI-A, which includes Section 80-I, are not to be considered. The gross total income of the assessee has to be computed after making all other adjustments of losses and carry forward losses ignoring the deductions available under Chapter VI-A. There is no dispute with this proposition.
It is further clear from a plain reading of the aforesaid provisions that the deduction under Section 80-I is to be made in case the gross total income includes any profits and gains derived from an industrial 416/09, 761/09 & 788/09 Page No.6 of 11 undertaking, etc.., in case such profits and gains are included in the gross total income of the assessee. The deduction in the case of a company, in view of the proviso to Section 80-I (1), is to be given to the extent of 25% of such profits and gains of such an industrial undertaking. It is also clear that in view of Section 80-I (6), which begins with a non-obstante clause, the quantum of deduction is to be computed as if the industrial undertaking were the only source of income of the assessee during the relevant years. In other words, each industrial undertaking or unit is to be treated separately and independently. It is only those industrial undertakings, which have a profit or gain, which would be considered for computing the deduction. The loss making industrial undertaking would not come into the picture at all. The plain reading of the provision suggests that the loss of one such industrial undertaking cannot be set off against the profit of another such industrial undertaking to arrive at a computation of the quantum of deduction that is to be allowed to the assessee under Section 80-I (1) of the said Act.
In this regard, we may refer to the decision of this court in the case of Dewan Kraft Systems (supra), which considered the pari materia provisions of Section 80-IA(7) of the said Act. In that case, the question arose with respect to computation of the deduction in relation to three units - the Kalamb Unit, the Delhi Unit and the Noida Unit. This court held that while computing the deduction under Section 80-IA of the said Act, the profits and gains of the Kalamb unit for the purposes of determining the quantum of deduction under Section 80-IA(5) was to be computed as if such 416/09, 761/09 & 788/09 Page No.7 of 11 eligible business of the said unit was the only source of income of the assessee. This court observed that the Assessing Officer had erroneously mixed the profits of the Delhi and Noida units and had thereby restricted the deduction to the extent of business income and that such an exercise was in total disregard of the provisions of sub-section (7) of Section 80-IA of the said Act. It was held that the Kalamb unit, being the only unit of the assessee eligible for deduction under Section 80-IA of the said Act, was to be treated as an independent unit and the same was to be treated as the only source of income of the assessee for the purposes of computing deduction under Section 80-IA.
14. We now came to the decision of the Supreme Court in the case of Synco Industries Ltd (supra) which was strongly relied upon by the learned counsel for the appellant. On going through the entire decision, we find that the Supreme Court was primarily concerned with the question as to whether any deduction could be allowed under Chapter VI-A if the gross total income was „Nil‟. It is in that context that the Supreme Court considered the concept of gross total income and came to the conclusion, following its earlier decision in CIT v. Kotagiri Industrial Co-operative Tea Factory Ltd: 224 ITR 605, that the gross total income has to be computed in accordance with the Act after adjusting the losses, etc. and that, if the gross total income so determined is positive, then the question of allowing deductions under Chapter VI-A would arise, but not otherwise. While doing so, the Supreme Court further made it clear that the gross total income must be determined by setting off business losses of earlier years before 416/09, 761/09 & 788/09 Page No.8 of 11 allowing deduction under Chapter VI-A and that if the resultant income is „Nil‟, then the assessee cannot claim any deduction under Chapter VI-A. While coming to the aforesaid conclusion, the Supreme Court was also confronted with an argument which had been raised on the basis of the provisions of Section 80-I(6) that the profits of one industrial undertaking cannot be set off against the losses suffered by the other industrial undertaking. The Supreme Court was of the view that the provisions of Section 80-I (6) were only for the purposes of computing the quantum of deduction, whereas the gross total income was to be computed in terms of the Act as provided in Section 80-B(5). It is apparent that the Supreme Court distinguished the provisions of Section 80-I(6) which was for the purposes of computing the quantum of deduction from the provisions of Section 80-I (1) and Section 80-B(5) which deal with the manner in which the gross total income is to be considered. The Supreme court observed as under:-
"13. ...While computing the quantum of deduction under Section 80- I(6), the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income in order to arrive at the deduction under Chapter VI-A. However, this court finds that the non obstante clause appearing in Section 80-I(6) of the Act, is applicable only to the quantum of deduction, whereas, the gross total income under Section 80B(5) which is also referred to in section 80-I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking. If the interpretation as suggested by the appellant is accepted it would almost render the provisions of Section 80A(2) of the Act nugatory and, therefore, the interpretation canvassed on behalf of the appellant cannot be accepted. It is true that under Section 80-I(6) for the purpose of calculating the deduction, the loss sustained in one of the units, cannot be taken into account because Sub-section (6) contemplates that 416/09, 761/09 & 788/09 Page No.9 of 11 only the profits shall be taken into account as if it was the only source of income. However, Section 80A(2) and Section 80B(5) are declaratory in nature. They apply to all the sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and, therefore, the non obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier, Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and, therefore, while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression "gross total income" as defined in Section 80B(5). Therefore, this court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was "nil" the assessee was not entitled to claim deduction under Chapter VI- A which includes Section 80-I also.
The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses, etc., and if the gross total income of the assessee is "nil" the assessee would not be entitled to deductions under Chapter VI-A of the Act." (underlining added) 15. From the above extract, it is apparent that the Supreme Court did not at all hold that while computing the deduction under Section 80-I(6), the loss of one eligible industrial undertaking is to be set off against the profit of another eligible industrial undertaking. All that the Supreme Court said was that in computing the gross total income of the assessee, the same has to be determined after adjusting the losses and that, if the gross total income of the assessee so determined turns out to be „Nil‟, then the assessee would not be entitled to deduction under Chapter VI-A of the said Act.
We agree with the submissions made by the learned counsel for the assessee that there is nothing in the decision in the case of Synco 416/09, 761/09 & 788/09 Page No.10 of 11 Industries Ltd (supra) which would enable us to detract from the position indicated by this court in Dewan Kraft Systems (supra) and, as indicated by us above. In fact, the Supreme Court clearly held that while computing the quantum of deduction under Section 80-I(6), the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income of the assessee in order to arrive at a deduction under Chapter VI-A. The Supreme Court also held that under Section 80- I(6), for the purposes of calculating the deduction, the loss sustained in one of the units is not to be taken into account because sub- section (6) contemplates that only the profits shall be taken into account as if it was the only source of income.”
5.7 Thus, for computing deduction u/s 80IA of the Act, profit of the eligible units have only to be considered subject to the upper limit of Gross total income. In view of the decision of the Hon’ble Delhi High Court, we set aside finding of the Ld. CIT(A) in the instant case to set off the loss of the other non-eligible unit against the profit of the eligible unit for computation of the deduction eligible under section 80-IA of the Act. 5.8 But in the instant case, on perusal of Certificate No.10CCB available on Page 35 to 41 of the paper book, we find that two/three undertakings have been mentioned as eligible at point No. 8 as under: “PPCL-I Plant : GT-1 on July 2002 , GT-II on Dec 2002 & STG on May 2003.” 5.9 In Point No. 9 two initial assessment years i.e. 2003-04 and 2004-05 have been mentioned. 5.10 In view of the facts appearing in the form No.10CCB, it needs verification, whether the loss making unit was also eligible for deduction under section 80-IA of the Act and if so the claim of deduction under section 80-IA of the Act has to be computed for both eligible units. We also find that the Ld. CIT(A) has not adjudicated on the addition made by the AO in respect of the interest income which was not derived from the business of the eligible undertaking. In view of the complete financial information in respect of the two units of the assessee not available before us, in interest of the Justice, we feel it appropriate to set aside the order of the ld. CIT(A) and restore the issue back to him for deciding afresh in accordance with law, after verification of financial statements of both the units of the assessee. It is needless to mention that both the parties, i.e., the assessee as well as the Assessee Officer shall be afforded adequate opportunity of being heard. The grounds of the appeal of the assessee are accordingly allowed for statistical purposes.
In the result the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 10th January, 2020.