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Income Tax Appellate Tribunal, KOLKATA BENCH (A
Before: Shri P.M. Jagtap(KZ) & Shri S.S. Viswanethra Ravi, JM]
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [Before Shri P.M. Jagtap, Vice President (KZ) & Shri S.S. Viswanethra Ravi, JM] I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 ACIT, Circle – 4(1) Kolkata...................................………………………….............................Appellant P-7, Chowringhee Square, Kolkata – 700 069. M/s. Apeejay Tea Ltd.....................…………………………..................................................Respondent ‘Apeejay House’, Block-A, 15, Park Street, Kolkata – 700 016. [PAN: AAECA 1925 D] Appearances by: Shri C.J. Singh, JCIT, Sr. DR appearing on behalf of the Revenue. Shri Manish Tiwari, FCA appearing on behalf of the Assessee. Date of concluding the hearing : March 20, 2019 Date of pronouncing the order : May 10, 2019 ORDER Per P.M. Jagtap, Vice President (KZ) This appeal is preferred by the revenue against the order of Ld. CIT(A) – 16, Kolkata dated 30.06.2016.
In ground no. 1, the revenue has challenged the action of the Ld. CIT(A) in deleting the disallowance of Rs. 31,64,411/- made by the AO on account of balance additional depreciation.
The assessee in the present case is a company which is engaged in the business of cultivation of green leaf as well as manufacturing and sale of black tea and packaged tea. The return of income for the year under consideration was filed by it on 30.09.2011 declaring a total income of Rs. 86,99,068/-. In the said return, additional depreciation of Rs. 31,21,842/- in bulk tea division and Rs. 42,569/- in package tea division was claimed by the assessee @10% on plant &
2 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. machinery which was purchased and put to use for less than 180 days in the immediately preceding year i.e. A.Y. 2010-11. Out of the total additional depreciation of 20% allowable u/s 32(iia), 10% was claimed in A.Y. 2011-12 while the balance 10% was claimed in the year under consideration. According to the AO, the assessee was entitled to claim additional depreciation only in the year in which plant and machinery was purchased and put to use and there was no provision to carry forward the unclaimed additional depreciation to the next year. He accordingly disallowed the claim of the assessee for additional depreciation by relying on the decision of Delhi Bench of ITAT in the case of DCIT vs Cosmo Films Ltd. 24 taxmann.com 189.
We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. It is observed that the issue relating to the assessee’s claim for additional depreciation of 10% as made in the year under consideration is squarely covered in favour of the assessee, besides various decisions of this Tribunal, by the decision of Hon’ble Madras High Court in the case of CIT vs Rittal India Pvt. Ltd. 380 ITR 423 wherein it was held that additional depreciation u/s 32(iia) is a onetime benefit given to encourage industrialisation and on the plant and machinery purchased and put to use in the 2nd half of the immediately preceding year, the assessee can claim half of the additional depreciation of 20% in the next assessment year. Respectfully following the said decision of Hon’ble Madras High Court, we uphold the impugned order of the Ld. CIT(A) allowing the claim of the assessee for additional depreciation of 10% in the year under consideration and dismiss ground no. 1 of the revenue’s appeal.
3 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd.
The issue involved in ground no. 2 relates to deleting the disallowance of Rs. 88,48,773/- made by the AO u/s 40(a)(ia) of the Income Tax Act, 1961 for not deducting TDS on the payment of Ocean Freight/Shipment Charges.
In the profit and loss account filed along with the return of income, the assessee company had debited a sum of Rs. 98,76,294/- on account of Ocean Freight/Shipment Charges. From the relevant details furnished by the assessee, the AO found that no tax at source was deducted by the assessee from the payment of Ocean Freight/Shipment Charges to the extent of Rs. 88,48,773/-. He, therefore, invoked section 40(a)(ia) and made a disallowance to that extent. On appeal, the Ld. CIT(A) deleted the said disallowance made by the AO keeping in view the submission made on behalf of the assessee before him that the amount of Rs. 88,48,773/- in question was paid to Shipping Corporation of India which had already paid the taxes on the said amount for A.Y. 2011-12.
We have heard the arguments of both the sides and also perused the relevant material available on record. The only contention raised by the learned DR is that the relief was allowed by the Ld. CIT(A) to the assessee on this issue without giving an opportunity to the AO to verify the claim made by the assessee for the first time before the Ld. CIT(A) that the amount in question was offered to tax by the Shipping Corporation of India and tax thereon was also paid by the said concern. The learned counsel for the assessee, on the other hand, has submitted that he has no objection if
4 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. the matter is sent back to the AO for such verification. We accordingly set aside the impugned order passed by the Ld. CIT(A) and restore the matter to the file of the AO for the limited purpose of verifying as to whether the amount in question was offered to tax by the Shipping Corporation of India and tax thereon was paid by them as claimed by the assessee. On such verification, the AO shall decide this issue in the light of the decision of the Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd. vs CIT 163 TAXMAN 355 (SC). Ground no. 2 of the revenue’s appeal is accordingly treated as allowed for statistical purpose.
The issue involved ground no. 3 relates to the deletion by the Ld. CIT(A) of the disallowance of Rs. 2,57,62,000/- made by the AO u/s 40(a)(ia) of the Act for not deducting tax at source from the payment of Royalty.
During the course of assessment proceedings, the AO found that an amount of Rs. 2,57,61,509/- was paid by the assessee to M/s. Apeejay Surrendra Management Services Pvt. Ltd. on account of Royalty during the year under consideration but tax at source on the said payment was deducted and deposited only in August, 2012. In this regard, the following explanation was offered by the assessee during the course of assessment proceedings: “The Corporate Business Division comprised of the business of providing consultancy services to various companies of the Apeejay Surrendra Group and owns the ‘Apeejay Surrendra’ Brand from which it earns royalty income from the various group companies for usage of the brand. The scheme came into effect (Effective Date) on 21st May 2012 i.e. after receipt of the order of Hon’ble High Court of Calcutta. Subsequently, the final accounts were drawn up and audited for FY 2010-11 giving effect to
5 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. the scheme as approved and directed by the Hon’ble High Courts on 26th June 2012. Accordingly, the accounts of Corporate Division or the financial year 2010-11 were separated from Apeejay Surrendra Corporate Services Ltd. While separating the accounts, the Royalty amount was charged for FY 2010-11 by Corporate Business Division (now part of Apeejay Surredra Management Services Pvt. Ltd.) to Apeejay Surrendra Corporate Services Ltd. (i.e. Tea Division) triggering the TDS provisions contained in Section 194J of the Income Tax Act, 1961. The assessee submitted that since till the scheme became effective on 21.05.2012 with Appointed Date as 1st April, 2010 there was no occasion for deduction of tax at source on royalty payments as explained hereinabove, it cannot be inferred that tax was deductible at source under Chapter XVII-B on 31.03.2011. There did not exist any liability to deduct TDS on payments of royalty to the corporate division of ASCSL prior to such demerger. Thus, any subsequent event cannot result in default for such deduction of TDS on the transaction date.”
The submission made by the assessee as above was not found tenable by the Assessing Officer. According to him, the assessee having debited the amount of Royalty paid to M/s. Apeejay Surrendra Management Services Pvt. Ltd. in the books of account for the year under consideration was liable to deduct tax at source on such payment u/s 194J in the year itself. He held that there was thus a default committed by the assessee in deducting and paying such tax in the month of August, 2012. He accordingly invoked the provision of u/s 40(a)(ia) and made a disallowance of Rs. 2,57,62,000/-.
The disallowance of Rs. 2,57,62,000/- made by the AO u/s 40(a)(ia) on account of Royalty payment was challenged by the assessee in the appeal filed before the Ld. CIT(A) and after considering the submission made by the assessee as well as material available on record, the Ld. CIT(A) deleted the said disallowance for the following reasons given in his impugned order:
6 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. “2.The clarification as furnished on record in its totality and for the sake of convenience and to come to a possible conclusion is reproduced as under: - ‘Apeejay Surrendra Corporate Services ILimited (ASCSL) had two distinct business divisions a) Tea Division and b) Corporate Business Division. Vide a Scheme of Arrangement under sections 391 to 394 read with Section 100 of the Companies Act between Apeejay Surrendra Corporate Services Limited (ASCSL), Apeejay Commodities Private Limited (ACPL), now known as Apeejay Surrendra Management Services Pvt. Ltd), Kharjan Tea Estates Private Limited (KTEPL) and their respective sharesholders snctioned by the Hon’ble High Court of Calcutta vide order dated 18th April. 2012 and the Hon’ble Guwahati High Court, vide order dated 17th November, 2011 the Corporate Business Division was demerged and transferred to and vested in Apeejay Commodities Private Limited (The Resulting Company)'as a going concern basis with effect from the opening of business on 1st April, 2010 (Appointed date). Please refer Part 4 in page 15 of the Scheme. The Corporate Business Division comprised of the business of providing consultancy services to various companies of the Apeejay Surrendra Group and owns the "Apeejay Surrendra" Brand from which it earns royalty income from the various group companies for usage of the brand. The Scheme came into effect (Effective Date) on 21'' May 2012 i.e after receipt of the order of Hon'ble High Court of Calcutta. Subsequently, the final accounts were drawn up and audited for FY 2010- 11 giving effect to the Scheme as approved and directed by the Hon'ble High Courts on 26 June 2012. Accordingly, the accounts of Corporate Division for the financial year 2010-11 were separated from Apeejay Surrendra Corporate Services Ltd. While separating the accounts, the Royalty amount was charged for FY 2010-11 by Corporate Business Division (now part of Apeejay Surrendra Management Services Pvt. Ltd.) to Apeejay Surrendra Corporate Services. Limited (i.e Tea Division) triggering the TDS. Since, till the scheme became effective on 21.05.2012 with Appointed Date as 1st April, 2010 there was no occasion for deduction of tax at source on royalty payments as explained hereinabove, it cannot be inferred that tax was deductible at source under Chapter XVII-B on 31.03.2011. There did not exist any liability to deduct TDS on payments of royalty to the corporate division of ASCSL prior to such demerger. 'Thus, any subsequent event cannot result in default for such deduction of TDS on the transaction date. Further, the resulting company, Apeejay Surrendra Management Services Pvt. Ltd. and assessed by you, comprising of the Corporate Division had paid taxes on its total income which includes royalty income received from the Tea Division. Accordingly, the same sum cannot be taxed again in the hands of the Tea
7 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. Division since the tax has already been paid by the recipient of such royalty income. A similar vie has been held by the Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. vs. Commissioner of Income-tax (2007) 163 TAXMAN 355 (SC) that ‘where the deductee, recipient of income, has already paid taxes on amount received from deductor, department once again cannot recover tax from deductor on the same income by treating deductor to be assessee-in-default for shortfall in its amount of tax deducted at source.’ 3. In view of the fact that the scheme of arrangement effective from 01.04.2010 Hon’ble Kolkata High Court on 18.04.2012 and the final accounts for the period 20.10.2011 were drawn and audited on 26th June 2012 by giving effect for the period 2010-11, the TDS provision can be made applicable only from the date of audit. Therefore, TDS deposited in Central Govt. A/c in August 2012 cannot be considered as violative. After due consideration of the factual matrix I am of considered opinion that there was no scope for obligation regarding TDS on Royalty payment prior to merger scheme which may approved by Kolkata High Court on 21.05.2012 only. Thereafter TDS deposited in Central Govt. A/c in August 2012 cannot be considered as violative. Accordingly, the disallowance of Rs. 2,57,62,000/- towards royalty payment is accordingly deleted.”
We have heard the arguments of both the sides and also perused the relevant material available on record. As explained on behalf of the assessee before the Ld. CIT(A) as well as before the us, the liability to deduct tax at source from the amount of Royalty payable by the assessee to M/s. Apeejay Surrendra Corporate Services Ltd. was actually not in existence during the year under consideration keeping in view all the facts of the case including especially the scheme of arrangement sanctioned by the Hon’ble Kolkata High Court only on 21st May, 2012. Moreover, the Royalty paid by the assessee was duly offered to tax by M/s. Apeejay Surrendra Group and tax thereon also having been paid by the said party, the assessee could not be held to be liable to deduct tax at source again as held by the Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd. vs CIT 163 TAXMAN 355.
8 I.T.A. No. 1736/Kol/2016 Assessment Year: 2011-12 M/s. Apeejay Tea Ltd. Keeping in view these facts of the case which have remained uncontroverted by the learned DR, we find no infirmity in the impugned order of the Ld. CIT (A) deleting the disallowance made by the AO on this issue u/s 40(a)(ia) and upholding the same, we dismiss ground no. 3 of the revenue’s appeal.
In the result, the appeal of the Revenue is treated partly allowed for statistical purpose. Order Pronounced in the Open Court on 10th May, 2019.
Sd/- Sd/- (S.S. Viswanethra Ravi) (P.M. Jagtap) JUDICIAL MEMBER VICE PRESIDENT Dated: 10/05/2019 Biswajit, Sr. PS Copy of order forwarded to: 1. M/s. Apeejay Tea Ltd., ‘Apeejay House’, Block-A, 15, Park Street, Kolkata – 700 016. 2. ACIT, Circle – 4(1), Kolkata. 3. The CIT(A) 4. The CIT 5. DR True Copy, By order, Assistant Registrar / H.O.O. ITAT, Kolkata