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2016 DIGILAW 1348 (GUJ)

Commissioner of Income Tax v. Nirma Limited

2016-07-18

G.R.UDHWANI, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal, the appellant - Department has challenged the order passed by the ITAT in ITA No. 232/Ahd/2005 whereby the Tribunal has reversed the order passed by the CIT(A) and allowed the order of the AO. 2. While admitting this appeal, following questions are framed for our consideration: "[A] Whether on the facts and in the circumstances of the case, Appellate Tribunal is justified in law in directing to exclude the net interest income for the purpose of deduction u/s. 80HHC of the Act? [B] Whether on the facts and in the circumstances of the case, Appellate Tribunal is justified in law in holding that provisions of section 80IA(9) do not restrict the deduction under other sections of chapter VIA to the extent of eligible income for deduction u/s. 80IA?" 3. Learned Counsel for the assessee has submitted that so far as the issue No. (A) is concerned, the same is squarely covered by a decision in case of ACG Associated Capsules Pvt. Ltd. v. Commissioner of Income-Tax & Commissioner of Income-Tax v. Bharat Rasayan Ltd., [2012] 343 ITR 89 (SC). 4. Learned Counsel for the appellant does not dispute the aforesaid proposition of law and while adopting the same view, without giving any elaborate reasons, issue No. (A) raised in the present Tax Appeal is answered in favour of the assessee and against the Department. 5. Now, so far as the issue (B) is concerned, the issue is covered by a decision of this Court rendered in Tax Appeal No. 763 of 2009 whereby the issue raised is answered in favour of the assessee and against the Department. Relevant observations made in paragraph No. 3 reads thus: "3. At the time of hearing of this appeal, it is submitted that the issue involved in this appeal is covered by the decision of this Court rendered in the case of Commissioner of Income-tax v. Atul Intermediates reported in [2014] 45 taxmann.com 275 (Gujarat), wherein it was observed as under:- 24. We have noticed that Chapter VI of the Act pertains to deductions of certain incomes. Part-A thereof contains provisions of general applicability. Under sub-section (2) of section 80A, it is provided that the aggregate amount of deductions under Chapter VI shall not in any case exceed the gross total income of an assessee. We have noticed that Chapter VI of the Act pertains to deductions of certain incomes. Part-A thereof contains provisions of general applicability. Under sub-section (2) of section 80A, it is provided that the aggregate amount of deductions under Chapter VI shall not in any case exceed the gross total income of an assessee. However, the reference in this section is to the gross total income of an assessee, and not the business income. The situation, therefore, would arise as is apparent from the decision of Madhya Pradesh High Court in case of J.P. Tobacco Products Private Limited (supra) that an assessee may claim full deduction for the same gross profit under two different deduction provisions contained in Chapter VI of the Act, and such deduction would be allowed. In some cases, thus, such total deduction would exceed the income of the business of an assessee. In case of Mandideep Eng. And Pag. Ind. P. Ltd. (supra), the Supreme Court did not permit the Revenue to challenge the judgment of the Madhya Pradesh High Court in view of earlier decisions of different High Courts, which were not questioned. It was in this backdrop that sub-section (9) of section 80IA was introduced with effect from 1st April 1999. In this context, we may peruse more closely the language used in sub-section (9) of section 80IA. In plain terms it provides that where any amount of profits and gains of an undertaking or enterprise in case of an assessee is claimed and allowed under section 80IA, deduction to the extent of such profits and gains shall not be allowed under any other provisions of this Chapter under the heading 'C' Deductions in respect of certain incomes', and in no case exceed the profits of gains of such eligible business of the undertaking or enterprise. It can thus be seen that sub-section (9) is divided into two clear parts. First part pertains to non-allowability of deduction under any other provision contained in Part-C of Chapter VI to the extent of profits and gains of an enterprise or undertaking with respect to which deduction under section 80IA is claimed and allowed. The second part provides that in any case, such deduction shall not exceed the profits and gains of eligible business of an undertaking or enterprise. The second part provides that in any case, such deduction shall not exceed the profits and gains of eligible business of an undertaking or enterprise. If we accept the interpretation of the assessee that only effect of sub-section (9) of section 80IA would be to limit the maximum permissible deduction under section 80HHC to the profits and gains of the eligible business, we would be completely ignoring the first part of the sub-section. In other words, the earlier part of sub-section would be rendered completely redundant, purposeless and otiose. It is well settled that the Legislature cannot be expected to have used words and expressions, which have no meaning or effect. Limiting the scope of application of sub-section (9) of section 80IA only to restricting the claim of deduction under section 80HHC or for that matter under the provisions of sub-chapter C to Chapter VI would amount to giving no effect to the earlier portion of the sub-section, which specifically provides for making a disallowance of deduction claimed by the assessee under various provisions contained in sub-chapter C profit or gain of an undertaking or enterprise which has already been claimed and allowed under section 80IA. In case of Aswini Kumar Khose v. Aravinda Bose reported in AIR 1952 SC 369 the Supreme Court observed that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application. In case of Rao Shiv Bahadur Singh v. State of Uttar Pradesh reported in AIR 1953 SC 369 the Court observed that it is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of statute devoid of any meaning or application. In our understanding, therefore, sub-section (9) of section 80IA has two implications. First part would operate as to denying an assessee's claim of deduction under other provisions of sub-chapter C of Chapter VI when a certain profit or gain has already been granted deduction under section 80IA. Under such situation, to the extent specified in first part of sub-section (9), the assessee's claim of deduction under other provisions, including section 80HHC, would be restricted. Under such situation, to the extent specified in first part of sub-section (9), the assessee's claim of deduction under other provisions, including section 80HHC, would be restricted. Second implication of sub-section (9) of section 80IA is that under no circumstances, once deduction has been granted under section 80IA, deduction under any other provision combined together would exceed the total amount of profits and gains of eligible business of an undertaking or enterprise. This much is plain, and requires neither any imagination nor any interpretative process. Any other view would amount to obliterating the first part of sub-section (9) of section 80IA, and would, thus, be wholly impermissible to do. We wonder, if the sole intention of the Legislature was to limit various deductions to the maximum limit of the profit of the eligible business, why was such long and somewhat complex expression was used in sub-section (9) of section 80IA? The same purpose could have been easily achieved by far briefer and more simple expression of providing maximum limit of deduction, for example, as was done in sub-section (2) of section 80A. We, therefore, refuse to accept the theory that the Legislature has in far more complex and detailed expression desired to bring about the same result, though in plain terms, when the sub-section read as a whole, conveys entirely different connotation. 25. Having said so, we are actually conscious of the fact that sub-section (9) of section 80IA does not contain a non-obstante clause. Two things thus emerge in our understanding of the said provision. First in plain terms when read as a whole sub-section (9) of section 80IA does not limit its effect only to disallowing deduction over and above the profit or gain of an enterprise or undertaking. Second aspect is that such provision does not have a non-obstante clause. What would be the effect of these two forces emerging from sub-section (9) of section 80IA needs to be appreciated. In our opinion, the combined effect of these two factors would be that sub-section (9) of section 80IA of the Act would operate as along as there is nothing contrary contained in any other provisions of sub-chapter C of Chapter VI. In the present case, our enquiry would be limited to finding out if there is anything contrary provided in section 80HHC of the Act. In the present case, our enquiry would be limited to finding out if there is anything contrary provided in section 80HHC of the Act. Thus, if there is any indication of legislative intent to allow the full deduction under section 80HHC of the Act irrespective of the provision contained in sub-section (9) of section 80IA, such legislative intent must prevail. On the other hand, if we find that section 80HHC of the Act is not immune to outside influence, full play of the provision of sub-section (9) of section 80IA must be allowed, even if it means restricting the claim of an assessee for deduction under section 80HHC of the Act. In other words, merely because sub-section (9) of section 80IA does not contain non-obstante clause would not by itself mean that it can have no effect on the deduction under section 80HHC of the Act. As is well known, the Legislature uses the non-obstante clause typically using expression 'notwithstanding anything contained in any other provision, Act or law for the time being in force'. Ordinarily, such expression would be equivalent to saying that inspite of the provision of the Act mentioned in non-obstante clause, the enactment following any such provision have full operation. Thus, often times, non-obstante clause is used to override other statutory provisions specified in such a section in specified circumstances. It can thus be seen that a provision containing non-obstante clause would prevail irrespective of anything contrary contained in any other provision referred to in such non-obstante clause. This, however, could not mean that in absence of a non-obstante clause, even if there is no conflict between the two statutory provisions, the provision restricting the ambit of a benefit must yield in absence of such non-obstante expression. 26. In this context, we have perused the provisions of section 80HHC of the Act. Though previously as held and observed by Madhya Pradesh High Court in J.P. Tobacco Products Private Limited (supra), the deduction provisions contained in Chapter VI were seen as independent stand-alone provisions, such views were expressed prior to introduction of sub-section (9) of section 80IA and sub-section (13) of section 80B of the Act. Though previously as held and observed by Madhya Pradesh High Court in J.P. Tobacco Products Private Limited (supra), the deduction provisions contained in Chapter VI were seen as independent stand-alone provisions, such views were expressed prior to introduction of sub-section (9) of section 80IA and sub-section (13) of section 80B of the Act. In case of Commissioner of Income-Tax v. K. Ravindranathan Nair reported in 295 ITR 228, the Supreme Court observed that, At the outset, we may state that, in the present case, we are dealing with the law as it stood during assessment year 1993-94. At that time Section 80HHC(3) of the I.T. Act constituted a Code by itself. Subsequent amendments have imposed restrictions/qualifications by which the said provision has ceased to be a code by itself. 27. Sub-section (9) of section 80IA was aimed at restricting the successive claims of deduction of the same profit or gain under different provisions contained in sub-chapter C of Chapter VI of the Act. This provision, therefore, necessarily impacts other deduction provisions including section 80HHC of the Act. Nothing contained in section 80HHC suggests that the deduction provided therein was immune from any outside influence or that the provision was impregnable by any other statute or enactment. Accepting any such theory would lead to incongruous results. Even the assessee concedes that sub-section (9) of section 80IA would operate as to limiting the combined deductions to a maximum of the profits and gains from an eligible business of the undertaking or enterprise. If section 80HHC contained a protective shell making it immune from any outside influence, even this effect of sub-section (9) of section 80IA could not be applied. This would completely render the provisions of sub-section (9) of section 80IA redundant and meaningless. 28. It is true, as pointed out by the counsel for the assessee that in different provisions the Legislature has used different language for restricting or limiting the claim of deductions. The use of language in statutory provisions in such complex situations must be peculiar to every situation the Legislature may seek to meet with. Merely because in some of the provisions certain disallowances are expressed in different language would not by itself mean that sub-section (9) of section 80IA was aimed to have restricted and limited scope of application. 29. The use of language in statutory provisions in such complex situations must be peculiar to every situation the Legislature may seek to meet with. Merely because in some of the provisions certain disallowances are expressed in different language would not by itself mean that sub-section (9) of section 80IA was aimed to have restricted and limited scope of application. 29. The contention that no such matching provision was made in section 80HHC of the Act would clearly indicate the Legislative intent also, in our opinion, is not a valid argument. Sub-section (9) of section 80IA was enacted to have universal application to all deductions under sub-chapter C of Chapter VI. It was neither possible nor expected of the Legislature to make individual matching provisions in large number of statutory provisions recognizing deductions under various situations. Such provisions are often times made for a limited period, new deductions are introduced from time to time and old deductions withdrawn. 30. Reference to the circular No. 772 dated of 23rd December 1998 also would not resolve this controversy. In the said circular, it is merely amplified that it was noticed that certain assessees claimed more than hundred per cent deduction of profits and gains of same undertaking, where they were entitled for deduction under more sections than one. It was, therefore, to prevent the tax payers from taking undue advantage of the existing provisions of claiming repeated deductions in respect of the same amount of eligible income, even in cases where it exceeds such eligible profits, inbuilt restrictions under section 80HHC and section 80IA have been provided. This explanation nowhere restricts the scope of sub-section (9) of section 80IA. It only provides that the provision was made because under the existing provisions the assessees were claiming double deductions, and in some cases such deduction would exceed hundred per cent of the profits and gains of the same undertaking. The clarification does not provide that sub-section (9) would apply and operate only when such claim exceeds the profits and gains of the undertaking. 31. We are unable to follow the line of logic adopted by the Bombay High Court in case of Associated Capsules P. Ltd. (supra) that section 80IA(9) of the Act in the context of section 80HHC would operate not at the stage of computation but at the stage of allowing the deduction. 31. We are unable to follow the line of logic adopted by the Bombay High Court in case of Associated Capsules P. Ltd. (supra) that section 80IA(9) of the Act in the context of section 80HHC would operate not at the stage of computation but at the stage of allowing the deduction. In plain terms sub-section (9) of section 80IA disentitles an assessee from claiming deduction under any other provision of sub-chapter C to the extent deduction is already claimed and allowed for certain profit or gain of an undertaking or enterprise under section 80IA. Such provision, therefore, would have to be applied at the very stage to assessee's claim for deduction under section 80HHC of the Act is considered. While computing such deduction the effect of sub-section (9) of section 80IA would have to be given. We do not think that in the process we are tinkering with the formula for computation of eligible profit for deduction under section 80HHC of the Act. We have noticed that different formulae have been provided for manufacturing exporter and trader and in case of an assessee whose exports comprise of both the sources. It is, therefore, at the stage of sub-section (3) of section 80HHC effect of sub-section (9) of section 80IA would apply. It is true that clause (baa) to explanation to section 80HHC defines a term 'profits of the business'. While working out the business profits as specified therein, in terms of sub-section (9) of section 80IA the profit or gain which had already been allowed deduction to the extent mentioned therein would have to be ignored. 32. This interpretation, which we have adopted, would not be disturbed by reference to section 80AB of the Act. The said section only provides that while computing a deduction under any other provisions contained in sub-chapter C of Chapter VI in respect of any income specified in such section, then, notwithstanding anything contained in that section, for the purpose of computing deduction, the amount of income of that nature as computed in accordance with the provisions of the Act shall alone be deemed to be the amount of income of that nature, which is derived or received by the assess, and which is included in his gross total income. The non-obstante expression used in this section is notwithstanding contained in 'that section' namely, the section under which the claim of deduction is to be examined. By no means this provision of expression 'notwithstanding anything contained in that section' can be used to interpret that section 80HHC of the Act can have no effect of sub-section (9) of section 80IA. As noted earlier, if this were so, the second part of sub-section (9) limiting the total deductions to the profit and gain from the eligible business also could not be applied. 33. In case of IPCA Laboratory Ltd. v. Deputy Commissioner of Income-Tax reported in 266 ITR 521 the Supreme Court observed as under: 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 other 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 clear that the computation of income has to be in 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. 34. In the result, we side with the view of Delhi High Court following by Kerala and Punjab and Haryana High Courts. The question is answered in favour of the Revenue. Tax appeal is allowed. Judgment of the Tribunal is reversed to that extent. Appeal is disposed of accordingly. 4. Since there is no dispute with regard to the fact that the issue involved in this appeal is covered by the aforesaid decision of this Court, we allow this appeal and the question posed for our consideration are answered in favour of the revenue and against the assessee". 6. Similar issue as decided in Tax Appeal No. 763 of 2009 is before the Hon'ble Apex Court which is pending for adjudication. 6. Similar issue as decided in Tax Appeal No. 763 of 2009 is before the Hon'ble Apex Court which is pending for adjudication. Accordingly, issue No. (B) raised in this appeal is presently answered in favour of the assessee in view of decision of this Court in Tax Appeal No. 763 of 2009 subject to the final outcome of the aforesaid appeal pending before the Hon'ble Apex Court which shall be binding to the assessee and the AO will give effect accordingly.