DCIT,CIRCLE-5(1)(1), AAYAKAR BHAWAN vs. COFFER CONSTRUCTION TECHNOLOGY PVT. LTD., TARDEO

"Whether on the facts, in the circumstances of the case and in law, the CIT(A) has erred in ignoring the ratio laid down by the judgement of the Kerala High Court in the case of Commissioner Of Income-Tax Vs. Poulose And Mathen (Put.) Ltd. dated 03.02.1998, (1999) 236 ITR 416 Ker, wherein, the Hon'ble High Court has held that the “actual cost" contemplated under Section 43(1) means the actual cost of the assets to the assessee, reduced by that portion of the cast met by any other person or authority directly or indirectly."

"Whether on the facts, in the circumstances of the case and in law, the CIT(A) has erred in ignoring the ratio laid down by the Hon'ble Apex court judgment in the "Whether on the facts, in the circumstances of the case and in law, the CIT(A) has erred in ignoring the ratio of the decision of ITAT, Bangalore in the case of Sango BPL Put. Ltd, Vs. DCIT, (2016] 75 taxmann.com253 (Bangalore - Trib.), dated 04.11.2016 wherein it was held that the Legislature has prefixed the word 'actual' to the word cost' in section 43(1) which suggests that the intention of the Legislature was to curb the malpractices and tendencies to inflate capital costs for obtaining higher depreciation while not burdening the other with any material tax liability and to exclude collusive, inflated and fictitious cost."

Briefly stated the facts of the case are that the assessee is engaged in the business of manufacturing of construction panels and selling the same in domestic as well as international market. The assessee electronically filed its return of income on 28/09/2015, declaring total income at Rs. Nil, under the normal provision of the Act and also u/s 115JB of the Act. The return of income was selected for scrutiny assessment and accordingly statutory notices were issued and served upon the assessee.

During the course of scrutiny assessment proceedings, the AO found that the assessee has purchased plant and machinery on 11/08/2008, from a foreign company M/s. Coffor Intercacional Exploracao De Patentes, for US$ 33,00,000 (INR 16,61,16,683). Since the machines were purchased on credit, the suppliers were shown as creditors. Later on, on 27/03/2009, the supplier issued External Commercial Borrowing (ECB) to assessee in respect of loan. On 16/09/2010, the assessee paid US$ 400,000 (INR 2,01,20,000) and entered into an agreement with ECB holder for waiver of loan. The said waiver of loan was treated as capital receipt and shown as non-taxable.

The AO was of the opinion that the treatment of asset of the said waiver as capital receipt is not correct because as per Section 43(1) of the Act, actual cost of plant and machinery should be cost borne by the assessee and depreciation should be given on actual cost only. 4.1. 1. The AO further observed that till FY 2012-13, the assessee has not made any payment against ECB and only after 02/12/2013, the assessee entered into a loan waiver agreement with the borrower. The AO found that the assessee has claimed depreciation on cost of US$ 33,00,000 (INR 16,61,16,683) instead of cost US$ 400,000 (INR 2,01,20,000).

The assessee was asked to showcause as to why this capital receipt should not be treated as business receipt and why depreciation should not be computed on actual cost as per Section 43(1) of the Act. The assessee filed detailed reply which did not find any favour with the AO. Invoking provisions of Section 43(1) of the Act, the AO re-computed the depreciation at Rs. 9,91,93,491/- and added the same.

The assessee carried the matter before the ld. CIT(A) and reiterated its claim of depreciation. It was strongly contended that the waiver of loan being capital receipt is not taxable. Strong reliance was placed on the decision of the Hon'ble Supreme Court in the case of Mahindra & Mahindra (2018) 414 ITR 1 (SC).

After considering the facts and submission, the ld. CIT(A) was of the opinion that re-working of depreciation based on the re-worked cost of acquisition and adding the depreciation of earlier years in the current

Before us, the ld. D/R strongly supported the findings of the AO but could not point out any legal/factual error in the findings of the ld. CIT(A). Per contra, the ld. Counsel for the assessee reiterated what has been stated before the lower authorities.

It is an undisputed fact that while calculating the disallowance of depreciation, the AO has adjusted cost of plant and machinery by reducing the amount of ECB waived off during the year and has calculated the depreciation on the adjusted amount of cost of plant and machinery imported. The re-computation of depreciation has been done from AY 2009-10 to AY 2015-16 and the same has been disallowed. The disallowance has been made by invoking the provision of Section 43(1) and 41(1) of the Act.

It is also a fact that, purchase of capital asset is a different transaction from availing a loan in the form of ECB. The waiver of loan is on capital account and the ratio laid down by the Hon'ble Supreme Court in the case of Mahindra & Mahindra (supra) squarely applies wherein, the Hon'ble Supreme Court has held that waiver of loan in respect of capital equipment cannot be taxed u/s 41(1) of the Act. Since the assets were purchased in AY 2009-10, therefore provision of Section 43(1) of the Act are not applicable as in that year, the cost of asset was not directly or indirectly met by any other person.

On similar facts, the Co-ordinate Bench in the case of Akzo Nobel Coatings vs. DCIT [2012] 28 taxmann.com 82 (Bangalore) has held as under:- "

We have considered the rival submissions on the above issue. The facts are not in dispute. The assessee acquired plant & machinery for its Hoskote plant in April, 1996. The assessee did not make any payments for the purchase of plant & machinery, ultimately the CEL, UK, one of the group company made payments of the machinery to the suppliers. The assessee thereafter recognized this liability for payment for purchase of machinery as payable to CEL, UK. Later on, CEL, UK was taken over by Akzo International BV. Akzo International BV waived repayment of monies due on purchase of machinery. It is not in dispute that in April, 1996 when the machinery was purchased, the actual cost was recorded in the books of account including the monies payable to the supplier of machineries. Even today the Assessee has not made any adjustment in its books of accounts recognizing the write of amounts payable for purchase of machineries. The benefit as a result of waiver of the loan was shown in the books of accounts of the Assessee in the balance sheet as a capital receipt not chargeable to tax. The above claim of the Assessee has also been accepted by the Revenue. The assessee has claimed depreciation of those machineries from the A.Y. 1997-98. In April, 2000, Akzo International BV, the parent company waived the amounts payable by the assessee for purchase of machineries. This fact came to the knowledge of the AO in the course of assessment proceedings for the AY 2004-05. Thereafter action was initiated u/s. 148 to reduce the WD V of the relevant block of assets and withdraw the depreciation already granted to the assessee in the past. Such action was initiated only from A.Y. 2001-02 to 2006-07. A notice u/s. 148 for AY 2001-02 was issued by the AO on 01.02.2007. This is probably because the AO could not reopen the earlier assessment years as they could not be reopened in view of the limitation of time laid down in section 149 of the Act. The question now to be decided by the Tribunal is as to whether the action of the revenue could be justified. The relevant provisions of law in this regard have to be seen. The concept of "block of assets" was introduced with effect from 01.04.1988. Section 32 (1) of the Income Tax Act, 1961 (the Act) reads as follows:

Section 43(6) of the Act defines the expression "Written Down Value" and it reads as under:- (6) "written down value" means ** ** ** (c) in the case of any block of assets, - (i) in respect of any previous year relevant to the assessment year commencing on the 1st day of April, 1988, the aggregate of the written down values of all the assets falling within that block of assets at the beginning of the previous year and adjusted, - (A) by the increase by the actual cost of any asset falling within that block, acquired during the previous year; (B) by the reduction of the moneys payable in respect of any asset falling within that block, which is sold or discarded or demolished or destroyed during that previous year together with the amount of the scrap value, if any, so, however, that the amount of such reduction does not exceed the written down value as so increased; and 17. The term "block of assets" is defined in Section 2(11) of the Act as under: - "2(11) "block of assets" means a group of assets falling within a class of assets comprising (a) tangible assets, being buildings, machinery, plant or furniture; (b) intangible assets, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, in respect of which the same percentage of depreciation is prescribed;"

Prior to the introduction of new concept of block of assets with effect from 01.04.1988, depreciation used to be claimed separately on each asset. The Legislature found that this was a cumbersome procedure leading to various difficulties. This necessitated introduction of the concept of block assets and allowability of depreciation on such a block. The rationale behind such a provision is contained in Circular No.469 dated 23.09.1986 issued by the Central Board of Direct Taxes (CBDT). After referring to the Budget Speech of the Finance Minister wherein reference was made to the proposal to introduce a system of allowing depreciation in respect of block of assets instead of the present system of depreciation on individual assets at paragraph 6.3, the Board stated as follows: "As mentioned by the Economic Administration Reforms Commission (Report No. 12, para 20), the existing system in this regard requires the calculation of depreciation in respect of each capital asset separately and not in respect of block of assets. This requires elaborate book-keeping and the process of checking the Assessing Officer is time consuming. The greater differentiation in rates, according to the date of purchase, the type of asset, the intensity of use, etc., the more disaggregate has to be the record keeping. Moreover, the practice of granting the terminal allowance as per section 32(1)(iii) or taxing the balancing charge as per section 41(2) of the Income-tax Act, necessitate the keeping of records of depreciation already availed of by each asset eligible for depreciation. In order to simplify the existing cumbersome provisions, the Amending Act has introduced a system of allowing depreciation on block of assets. This will mean the calculation of lump-sum amount of depreciation for the entire block of depreciable assets in each of the four classes of assets namely, building, machinery, plant and machinery."

The rationale and purpose for which the concept of block asset was introduced, as reflected in the CBDT Circular dated 23.09.1988 is that once the various assets are clubbed together and become ‘block asset' within the meaning of s. 2(11), it becomes one asset. Every time, a new asset is acquired, it is to be thrown into the common hotchpotch, i.e., block asset on meeting the requirement of depreciation being allowable at the same rate. Individual assets lose their identity and become an inseparable part of block asset in so far as calculation of depreciation is concerned. The merger of various assets into the block asset can be altered only when the eventuality contained in clause (c) of s. 43(6) takes place, viz., when a particular asset is sold, discarded or destroyed in the previous year (other than the previous year in which first brought in use). Even in that event, the amount by which the moneys payable in respect of that particular building, machinery, etc. together with the amount of scrap value is to be deducted from total written down value of the ‘block asset'. It is thus clear from the aforesaid provisions that the only way by which the written down value on which depreciation is to be allowed as per the provisions of Sec.32(1) (ii) can be altered is as per the situation referred to in Sec.43(6)(c)(i) A and B. Neither was there purchase of the relevant assets during the previous year nor was there sale, discarding or demolishing or destruction of those assets during the previous year. Thus the recourse by the revenue to those provisions on the facts and circumstances of the present case, in our view, cannot be sustained.

We shall examine the issue from the provisions of Sec.43(1) of the Act and Explanation 10 thereto also. Section 43(1) of the Act is reproduced hereunder: - "(1) "actual cost" means the actual cost of the assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority:" By the Finance (2) Act, 1998, Explanation 10 to Section 43(1) was inserted with effect from 1.4.1999. It reads as under:- "Explanation 10 - Where a portion of the cost of an asset acquired by the assessee has been met directly or indirectly the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee: Provided that were such subsidy or grant or reimbursement is of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee."

The aforesaid Explanation was explained by the Board in Circular No.772 dated 23.12.1998 [reported in (1999) 235 ITR (St.)35]. The relevant part of the Circular is reproduced below:- "22.2 Explanation 10 provides that where a portion of the cost of an asset acquired by the assessee has been net directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. Cost incurred/payable by the assessee alone could be the basis for any tax allowance. This Explanation further provides that where such subsidy or grant or reimbursement is of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement so received, shall not be included in the actual cost of the asset to the assessee. The amendment made through Explanation 10 will take effect from 1st April, 1999, and will, accordingly, apply in relation to the assessment year 1999-2000 and subsequent years."

Even the aforesaid provisions of Expln. 10 will apply only when there is a subsidy or grant or reimbursement. In the present case there was no such subsidy or grant or reimbursement. There was only a waiver of the amounts due for purchase of machinery which cannot fall within the scope of any of the aforesaid expressions used in Expln.

Even otherwise Sec 43(1) is applicable only in the year of purchase of machinery and in the present case the purchase of the machinery in question was not in AY 01-02.

The AO has made a reference to the provisions of section 43(6)(b) of the Act. In our opinion, these provisions were not applicable to the present case. The applicable provisions to the present case are section 43(6)(c) of the Act. It is also noticed that the Hon'ble Supreme Court in the case of Tata Iron & Steel Co. Ltd. (supra) has taken a view that repayment of loan borrowed by an assessee for the purpose of acquiring asset has no relevance to the cost of assets on which depreciation has to be allowed. Similar view was also expressed by the Hon'ble Kerala High Court in the case of Cochin Co. (P.) Ltd's case (supra), as already stated, as follows:- "WDV as at the beginning of the preceding year as well as the depreciation actually allowed in that year have reached finality and cannot be changed in the assessment year under appeal. They could have been changed only if the assessment of that or earlier years could be re-opened. Such an action was barred by limitation. Further, as per section 43(6)(c)(ii) & (i), the only adjustments permitted in the WDV of the block with reference to the year in which depreciation is to be allowed are (a) addition actual cost of asset acquired during the year and (b) reduction of monies receivable on sale, discarding, demolition or destruction of the assets and its scrap value."

As far as the validity of initiation of reassessment proceedings are concerned, we find that there were no assessments u/s. 143(3) of the Act and only an intimation had been issued. In the circumstances, we have to view that the ld. CIT(Appeals) was right in coming to the conclusion that the reopening of assessment u/s. 148 was valid. We

On the merits of the addition made by the AO in all the assessment years, we are of the view that the disallowance of depreciation cannot be sustained. The CIT(A), in our view, ought to have deleted the disallowance of depreciation in full. We hold accordingly and allow the relevant grounds of appeal of the assessee.”

Similarly, the Hon'ble Supreme Court in the case of Tata Iron & Steel Co. (1998) 231 ITR 285 (SC), had the occasion to consider the appeal against the order of the Hon'ble High Court, wherein the Hon'ble High Court was considered with the following two questions:- "

Whether, on the facts and in the circumstances of the case, and having regard to the fact that the net gain of Rs. 48,984 was made by the assessee-company from fluctuations in the rate of foreign exchange while repaying the instalments of the foreign loan for the assessment year 1960-61, the appropriate part of the said gain (i.e., after excluding that portion of it which is attributable to the element of interest) was gain on capital account which went to reduce the 'actual cost' of the depreciable assets for computing depreciation for the assessment year 1960-61 ?

Whether, on the facts and in the circumstances of the case and having regard to the fact that the net loss of Rs. 29,063 and net loss of Rs. 58,28,839 accrued to the assessee-company from the fluctuations in the rate of foreign exchange for the assessment year 1961-62, the appropriate part of each of the said two amounts (i.e., after excluding that portion of it which is attributable to the element of interest) was loss on capital account which went to increase the 'actual cost' of the depreciable assets for computing depreciation for the assessment year 1961-62 ?"

And the Hon'ble Supreme Court interalia held as under:- "

Coming to the question raised, we find it difficult to follow how the manner of repayment of loan can affect the cost of the assets acquired by the assessee. What is the actual cost must depend on the amount paid by the assessee to acquire the asset. The amount may have been borrowed by the assessee, but even if the assessee did not repay the loan, it will not alter the cost of the asset. If the borrower defaults in repayment of a part of the loan, the cost of the asset will not change. What has to be borne in mind is that the cost of an asset and the cost of raising money for purchase of the asset are two different and independent transactions. Even if an asset is purchased with non-repayable subsidy received from the Government, the cost of the asset will be the price paid by the assessee for acquiring the asset. In the instant case, the allegation is that at the time of repayment of loan, there was a fluctuation in the rate of foreign exchange as a result of which, the assessee had to repay a much lesser amount than he would have otherwise paid. In our judgment, this is not a factor which can alter the cost incurred by the assessee for purchase of the asset. The assessee may have raised the funds to purchase the asset by borrowing but what the assessee has paid for it is the price of the asset. That price cannot change by any event subsequent to the acquisition of the asset. In our judgment, the manner or mode of repayment of the loan has nothing to do with the cost of an asset acquired by the assessee for the purpose of his business. We hold that the questions were rightly answered by the High Court. The appeals are dismissed. There will be no order as to costs."

Considering the facts of the case in totality, in light of the judicial decisions discussed hereinabove, we do not find any reason to interfere with the findings of the ld. CIT(A).

In the result, appeal of the revenue is dismissed. Order pronounced in the Court on 25th October, 2024 at Mumbai. (RAJ KUMAR CHAUHAN) ACCOUNTANT MEMBER Mumbai, Dated 25/10/2024 *SC SMPS", "summary": { "facts": "The Revenue filed an appeal against the CIT(A)'s order deleting the disallowance of depreciation. The assessee purchased plant and machinery for US$ 33,00,000, funded by an External Commercial Borrowing (ECB). Later, a portion of this loan was waived, which the assessee treated as a capital receipt. The AO disallowed depreciation on the full cost, arguing it should only be on the amount actually borne by the assessee.", "held": "The CIT(A) deleted the disallowance, holding that reworking depreciation based on a revised acquisition cost and adding prior years' depreciation in the current assessment year is not permissible. The Tribunal concurred, finding that the waiver of a loan for acquiring a capital asset is a capital receipt and not taxable under Section 41(1). Section 43(1) is applicable to the year of purchase, and subsequent adjustments due to loan waivers are not permissible for depreciation calculations in later years.", "result": "Dismissed", "sections": [ "43(1)", "41(1)", "32(1)", "43(6)(c)", "2(11)" ], "issues": "Whether the CIT(A) erred in deleting the disallowance of depreciation claimed on the full cost of plant and machinery when a portion of the loan used for acquisition was waived." } }