🖨️ Print / Download PDF

Commissioner of Income Tax Vs Sri Krishna Drugs Ltd.

Case No: Income Tax Tribunal Appeal No. 3 of 2002

Date of Decision: Aug. 7, 2014

Acts Referred: Income Tax Act, 1961 — Section 2(24), 5, 6, 80AB, 80B

Citation: (2014) 369 ITR 365

Hon'ble Judges: L.N. Reddy, J; Challa Kodanda Ram, J

Bench: Division Bench

Advocate: J.V. Prasad, Standing Counsel, Advocate for the Appellant; A.V. Krishna Koundinya for A.V.A. Siva Karthikeya, Advocate for the Respondent

Translate: English | हिन्दी | தமிழ் | తెలుగు | ಕನ್ನಡ | मराठी

Judgement

L. Narasimha Reddy, J.@mdashThis appeal is filed by the Revenue feeling aggrieved by the order dated August 21, 2001, passed by the

Hyderabad B Bench of the Income-tax Appellate Tribunal in I.T.A. No. 349/Hyd/97 for the assessment year 1993-94. The following substantial

question of law has been framed.

Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the deduction under section 80HHC of the

Income-tax Act, 1961, be allowed on the gross total income and not on net total income?

The respondent is an industry and is assessed to income-tax. It undertakes export of manufactured goods. In the returns submitted for the

assessment year 1993-94, it claimed deduction under section 80HHC of the Income-tax Act, 1961 (for brevity the Act). The controversy was

about the stage of deduction.

2. According to the respondent, the deduction of the amount covered under section 80HHC of the Act can be done at the threshold, i.e., before

deduction of unabsorbed losses or carried forward depreciation are effected. The assessing authority did not agree for the same and by placing

reliance upon section 80HH of the Act directed the deduction under section 80HHC at a later stage. Aggrieved by that, the respondent filed an

appeal before the Commissioner of Income-tax (Appeals) III, Hyderabad. The said appeal was dismissed through order dated December 27,

1996. Thereupon, the respondent filed an appeal in I.T.A. No. 349/Hyd/97 and the Income-tax Appellate Tribunal, Hyderabad ""B"" Bench

allowed the said appeal by order dated August 21, 2001.

3. Sri J.V. Prasad, learned counsel for the appellant, submits that Chapter VI-A of the Act that provides for certain deductions, is almost a self-

contained code on the subject and from section 80AB of the Act, it is clear that the deductions referable to heading ""C"" under the Chapter are to

be effected from the corresponding gross total income and not otherwise. He submits that the Tribunal did not take into account the subtle

distinction in this regard and allowed the appeal simply by referring to the judgment of the Supreme Court in Commissioner of Income Tax, Pune

Vs. Shirke Construction Equipment Ltd., . He further submits that the judgment of the Supreme Court in Commissioner of Income Tax Vs.

Willamson Financial Services and Others, has no application to the facts of the case.

4. Sri A.V. Krishna Koundinya, learned counsel for the respondent-asses-see, on the other hand, submits that the Tribunal has taken the correct

view of the matter, duly taking into account the scheme under Chapter VI-A of the Act. He submits that the deduction provided for under section

80HHC is of a separate category and it is to be effected from the corresponding ""total income"" in contra distinction to the ""gross total income"".

5. One of the important steps in processing the returns of an assessee, where it is an industry, is the identification of deductions that are allowed

under Chapter VI-A of the Act. It can safely be observed that Chapter VI-A of the Act is one of the most oft amended part of the Act. Parliament

has to take into account the deductions of different categories to be allowed for various classes of assessees. Even while permitting deductions,

extreme care is to be taken to ensure that the assessees do not walk away with the uncovered amounts, by claiming them to be permissible

deductions. Obviously, for that reason, the length of some sections exceeds the whole text of certain enactments.

6. While identification of the amount deductible is an important step, equally important, is the identification of stage at which the deduction is to be

made. Deductions, by their very nature, are to be made from the income. However, under the Act, the connotation of the word ""income"" is not

uniform. It is ascribed different meanings, depending on the purpose. For example, the definition of the word ""income"", under section 2(24) of the

Act, is inclusive in nature. It takes in its fold, several components, like profits and gains, dividends, voluntary contributions, perquisites, special

allowances, and the like; mentioned in clauses (i) to (xvi).

7. Under section 5 of the Act, the scope of the expression ""total income"" is explained. The said section reads as under:

5. Scope of total income.--(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes

all income from whatever source derived which--

(a) is received or is deemed to be received in India in such year by or on behalf of such person; or

(b) accrues or arises or is deemed to accrue or arise to him in India during such year; or

(c) accrues or arises to him outside India during such year:

Provided that, in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6, the income which accrues

or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India.

(2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever

source derived which--

(a) is received or is deemed to be received in India in such year by or on behalf of such person; or

(b) accrues or arises or is deemed to accrue or arise to him in India during such year.

Explanation 1.--Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by reason

only of the fact that it is taken into account in a balance-sheet prepared in India.

Explanation 2.--For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis

that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed

to be received by him in India.

8. Coming to the expression ""gross total income"", it is indicated in subsection (5) of section 80B of the Act as under:

(5) ''gross total income'' means the total income computed in accordance with the provisions of this Act, before making any deduction under this

Chapter.

9. Section 80AB of the Act mandates that any deduction, that is required to be made or allowed under any provisions 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, shall be, from the income of that nature. The provision reads:

80AB. Deductions to be made with reference to the income included in the gross total income.--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.

10. The deductions in favour of an exporter of manufactured goods is provided under section 80HHC. It occurs under the heading ""C"". When the

respondent sought deduction of the amount referable to that section, at the threshold itself, from the corresponding income, the assessing authority

objected to it and insisted that it should be done only at the end. In a way, the question as to whether the deduction must be from the ""total

income"" or ""gross total income"" becomes relevant.

11. From a perusal of the definitions of the expressions ""gross total income"" and ""total income"", it becomes clear that the gross total income is

nothing but the total income, before any deductions under Chapter VI-A are made. If the Act provides for deduction of any amount from the gross

total income, it is axiomatic that the deduction of that nature must take place at the first instance and, thereafter, the other deductions can be made.

12. From the point of view of the assessee, the stage, at which the deduction is to be made, would make substantial difference. If the deduction

components, such as current or carried forward depreciation and whether fresh or unabsorbed losses are to be made at the threshold the assessee

would stand to lose. If, on the other hand, the deduction of such amounts is made after the other deductions, he would stand to benefit. In a given

case, he may be able to carry forward the unabsorbed loss or depreciation, if the deduction is made at a stage where the income gets down sized

on account of deduction of other amounts.

13. A close scrutiny of Part C of Chapter VI-A of the Act itself discloses that Parliament was clear in its mind as to the stage of deductions to be

made. For example, under section 80HHA deduction in respect of profits and gains from newly established small-scale industrial undertakings in

certain areas is to be made while determining the total income which is part of the gross total income. The language employed in section 80HHB of

the Act is somewhat different. No reference is made to the total income. All profits and gains from projects outside India are to be made from the

gross total income. So is the case with the deductions under section 80HHBA. In contrast, the deductions made under section 80HHC, which are

in respect of profits retained from export business, the deduction is required to be made from the total income. This distinction is worth being taken

note of.

14. Once the deductions under section 80HHC are to be made from total income, there may not be any justification to insist that it shall be the first

of all the deductions. If that were to be so, Parliament would have employed the expression ""gross total income"" under section 80HHC also,

instead of the expression ""total income"".

15. Even if one goes by the requirement under section 80AB of the Act, the emphasis is to ensure that the deduction, which is referable to a

particular source of income, must not cut into the other incomes. The use of the expression ""total income"" in section 80HHC of the Act adds

strength to that. When the law requires that the deduction of the amounts are required to be made from the corresponding total income, the

inescapable conclusion is that the deduction must take place at the threshold before the left over total income referable to that activity merges in the

other head, of the income of the assessee. It is, thereafter, that other deductions, such as depreciation and unabsorbed losses, are to be effected.

We derive support to this conclusion from the judgment of the Supreme Court in Shirke Construction''s case (supra) and Williamson Financial

Services'' case (supra).

16. Further, once the deduction is to be made from the total income, in contra distinction to ""gross total income"", the assessee must be given the

facility, as to the stage of deduction. Law provides the assessee, the freedom to arrange his affairs in a manner, which is beneficial to him, as long

as the same is not prohibited by or is contrary to any provision of an enactment.

17. For the aforesaid reasons, we find that this appeal is devoid of merits and is, accordingly, dismissed. There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this appeal shall stand closed.