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Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI R.S.SYAL, VP & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER PER BENCH : These three appeals preferred by the Revenue emanates from the common order of the Ld. CIT(Appeal)-2, Kolhapur dated 03.10.2017 for the assessment years 2010-11, 2011-12 and 2014-15 as per the following common grounds of appeal on record:
“1.The CIT(A) has erred in allowing deduction u/s. 80IA(4)(iv) on gross total income which in assessee's case includes income from capital gain and income from other sources whereas as per sec. 80IA(1), the said deduction is envisaged out of profit and gains from the eligible business only.
2. On the facts and in circumstances of the case and in law, the CIT(A) has erred in concluding that gross total income of eligible business includes also income from capital gain and Income from other sources.
3. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in ignoring the non-obstente clause appearing in section 80IA(5) of the Act, which supersedes all other provisions of the Act.
4. The appellant prays that the order of the CIT(A) be vacated and that of the Assessing Officer be restored.
5. The appellant craves, leave to add, alter, amend, modify any of above ground(s) or raise, any other ground(s) at the time of proceedings before the Hon. Tribunal which may please be granted.”
Since facts and circumstances involved in all these appeals are similar and grounds of appeal are common in respect of the issues involved for all the appeals before us, these appeals were heard together and disposed of vide this consolidated order.
That on perusal of the grounds of appeals in appeal memo filed by the Revenue for each of the assessment years, broadly the grievance of the Revenue is in allowing deduction u/s.80IA(4)(iv) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) on gross total income by the Ld. CIT(Appeal), which in assessee's case includes income from capital gain and income from other sources whereas as per Section 80IA(1) of the Act, the said deduction is envisaged out of profit and gains from the eligible business only.
4. For illustrating the issue in question and related facts therein, we would take up for the assessment year 2010-11 as lead case for adjudication.
ITA No.2734/PUN/2017 A.Y.2010-11
The brief facts in this case are that on perusal of the computation of income filed by the assessee, it was noticed by the Assessing Officer that deduction u/s.80IA(4)(iv) of the Act was claimed at Rs.13,52,92,190/- however, the assessee has income from business at Rs.10,08,60,993/- only. The assessee has extended its claim of deduction against income from Long Term Capital gain and income from other sources also which was not allowable u/s.80IA(5) of the Act. Thereafter, the Assessing Officer discussed section 80IA of the Act and after considering the principles laid down in JB Boda & Co. Pvt. Ltd., Mumbai Vs. ACIT, Central Circle of the ITAT, Mumbai Bench held that the assessee claiming deduction u/s.80IA of the Act on long term capital gain, income from other sources against which assessee was seeking deduction is nothing but independent activity and therefore, principles laid down in the decision of the Mumbai Bench of the Tribunal (supra.) does not apply to the case of the assessee.
5.1 The Assessing Officer vide Para 13 of his order has held that the claim of deduction u/s.80IA of the Act extended to the gross total income which would also include long term capital gain, income from other source is not acceptable and therefore, these incomes are separately taxed and no deduction u/s.80IA of the Act was adjusted against it. Accordingly, with regard to the assessee‟s income, the Assessing Officer was of the view that long term capital gain and income from other sources has to be computed and added to the total income of the assessee without allowing deduction u/s.80IA of the act and deduction u/s.80IA of the Act was restricted to Rs.10,08,60,993/-.
That before the Ld. CIT(Appeal), in the detailed written submissions filed by the assessee, strong reliance was placed on the decision of the Hon‟ble Bombay High Court in the case of CIT Vs. Tridoss Laboratories Ltd., 328 ITR 448 ( Bom.) wherein it has been held that “in computing the total income of the assessee, there is no basis in the provisions of section 80IA to restrict the expression to total income derived from an eligible business. Having regard to the provisions noted above, the submission urged on behalf of the revenue could not accepted.” In this scenario, it was held by the Ld. CIT(Appeals) placing reliance on the referred decision of the Hon‟ble Bombay High Court as follows :
“ 5………….The appellant claimed before me that the issue is covered in his case by the decision of the Hon’ble Bombay High Court in the case of Tridoss Laboratoreis Ltd. 328 ITR 448 ( Bom.). It has been held in Tridoss as under: Section 80IA provides that where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (the eligible business), 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 of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. The section contemplates a deduction of an amount representing hundred per cent of the profits and gains derived from the eligible business in computing the total income of the assessee. The expression gross total income is defined by section 80B(5), for the purposes of Chapter VIA., to mean the total income computed in accordance with the provisions of the Act before making any deduction under the Chapter. The expression total income has been defined in section 2(45) to mean that total amount of income referred to in Section (5), computed in the manner laid down in the Act. Section 5(1) enunciates that subject to the provisions of the Act, the total income of any previous year of a person who is a resident, includes all income from whatever source derived. In computing the total income of the assessee, there is no basis in the provisions of section 80IA to restrict the expression to total income derived from an eligible business. Having regard to the provisions noted above, the submission which has been urged on behalf of the revenue could not be accepted. In Synco Industries Ltd. Vs. Assessing Officer [2002] 254 ITR 608/[2001] 119 Taxman 503, Bombay High Court held that gross total income must be determined by setting off against the income, the business loss of earlier years before allowing a deduction under Chapter VI-A and if the resultant income is Nil, then the assessee cannot claim a deduction under Chapter VI-A. In the present case, the Tribunal has noted that the gross total income of the assessee, after setting off the losses from all other sources of income is Rs.14.57 lakhs, while the profit of the eligible unit was computed at Rs.98.43 lakhs. The Tribunal has restricted the deduction to the extent of the gross total income, namely, Rs.14.57 lakhs. The decision of the Tribunal is in accordance with the provisions of the Act. In the circumstances, the appeal does not raise any substantial question of law and is accordingly, dismissed.” 5.1 I also find that there is a latest decision of the Hon’ble Bombay High Court directly on the issue at hand in the case of V M Salgaocar & Brothers (P) Ltd. (2017) 81 taxmann.com 357. Therein it has been held as under : Where the Assessing Officer determined quantum of deduction under section 80HHC which the assessee was entitled to be a sum of Rs.19,92,39,981 but restricted such amount to Rs.17,40,33,719 which according to him was profit of the business, it was held that once the income had been determined by applying the methodology as provided in section 80HHC (3), the question of restricting the deduction in terms of section 80AB would not arise. This is so in terms of section 80AB as the assessee was claiming deductions on its export profits alone, which was included in computing its gross total income. Section 80HHC(3) was introduced when the provisions of Section 80AB were already on the statute. Even upon reading the provisions of section 80AB, the determination of the amount as provided therein would have to be effected for the purpose of computing the deductions under each of the respective sections specified in Part C. As such, while computing the deduction under section 80HHB, 80 HHC, 80 HHD, 80-IA and 80 IB etc. once would have to apply section 80AB. In terms of section 80AB(2), the restriction of the deduction is on the gross total income and in such circumstances, the restriction on the total profit of business is not at all justified. From the above it is evident that the restriction of deduction on total profits of business is not justified. Both the decisions of the Hon’ble Bombay High Court have held the same and cover the issue squarely in favour of the appellant. The decision of V M Salgaocar is directly on the issue at hand as Section 80HHC is pari material with Section 80IA. Respectfully following the decision of the Hon’ble Bombay High Court in the decisions cited supra, the AO is directed to allow the deduction u/s.80IA to the appellant on the gross total income and not restrict it to the income from business alone. The appellant therefore succeeds on merits of this case. The AO will however restrict the deduction u/s.80IA to the gross total income in each year.”
The Ld. CIT(Appeal) has also referred to the decision of the Hon‟ble Bombay High Court in the case of V M Salgaocar & Brothers (P) Ltd. 81 taxmann.com 357 wherein it was the question of deduction u/s.80HHC which is pari material with Section 80IA and in that case, the assessee though was entitled for deduction of Rs.19,92,39,981/- u/s.80HHC of the Act, it was restricted by the Revenue at Rs.17,40,33,719/-. It was held by the Hon‟ble Bombay High Court that once income had been determined by applying the methodology as provided in Section 80HHC(3), the question of restricting the deduction in terms of Section 80AB would not arise. That in Section 80AB(2) of the Act, the restriction of deduction is on gross total income and in such circumstances, restriction on the total profit of business was not at all justified. This decision of the Hon‟ble Bombay High Court squarely covers the issue in favour of the assessee and in view thereof, the Ld. CIT(Appeal) has provided relief to the assessee. That even before us, the Ld. DR fairly conceded that the issue is covered by the aforesaid decisions of the Hon‟ble Bombay High Court (supra.) in favour of the assessee.
Having heard the parties herein, we are of the considered view that there is no reason to interfere with the findings of the Ld. CIT(Appeal) and the relief provided to the assessee by the Ld. CIT(Appeal) is hereby sustained. Thus, grounds of appeal raised by the Revenue for the assessment year 2010-11 are dismissed.
In the result, appeal of the Revenue in is dismissed. & 2736/PUN/2017 A.Ys. 2011-12 & 2014-15
Since parties herein have agreed that in & 2736 /PUN/2017 for assessment years 2011-12 & 2014-15, the facts are absolutely similar, issues common as with the facts and issues appearing in ITA No.2734/PUN/2017 for assessment year 2010-11, therefore, our decision rendered in ITA No.2734/PUN/2017 shall apply mutatis-mutandis to ITA Nos.2735 & 2736/PUN/2017 for the assessment years 2011-12 and 2014-15. In these appeals also, grounds raised by the Revenue are dismissed.
In the result, appeals of the Revenue in & 2736/PUN/2017 for the assessment years 2011-12 and 2014-15 are dismissed.
In the combined result, all the appeals of the Revenue are dismissed.
Order pronounced on 08th day of October, 2021.
Sd/- Sd/- R.S.SYAL PARTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; ददनांक / Dated : 08th October, 2021. SB आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to : अपीलाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2.
3. The CIT(Appeal)-2, Kolhapur.