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Assessee, a wholly owned subsidiary of the Japanese company, had debited a certain amount being reimbursement of expenses to its parent company. Assessing officer (AO) found that one part of the said payment was classified as salary for providing services in India through certain employees of the parent company for rendering managerial services.
AO concluded that the parent company had seconded its employees for rendering managerial services to the assessee. Therefore, the fee paid to them was in nature of FTS, requiring the withholding of the tax under section 195. Since the assessee had not deducted tax at source on such payment, AO made disallowance under section 40(a)(i).
On appeal, the CIT(A) upheld the disallowance. Aggrieved-assessee filed the instant appeal before the Tribunal.
The Delhi Tribunal held that the terms of the assignment agreement make it clear that assigned employees, in respect of whom, the assessee has made disputed payments, were under complete control and supervision of the assessee during the tenure of the assignment agreement. In other words, there was an employer-employee relationship between the assessee and assigned employees.
Payments made to assigned employees, either directly or through the parent company, have been treated as salary and tax at the appropriate rate had been duly deducted under section 192 by the assessee, which was evident from TDS certificates issued in Form No. 16. Even assigned employees have filed their Income-tax Returns in India offering salary received from the assessee.
Thus, facts and materials placed on record, including terms of the assignment agreement, clearly establish that for all practical purposes, concerned persons assigned by the parent company to the assessee were working as employees of the assessee and receiving salary income.
Since reimbursement of expenses made by the assessee was in nature of salary cost and was subjected to TDS under section 192, such reimbursement could not be treated as FTS under section 9(1)(vii) and article 12 of India Japan DTAA.
Background
As per the section?32(1)(iia)?of the Income Tax Act, 1961 ('IT Act'), an assessee engaged in the business of manufacture or production of any article or thing is allowed an additional depreciation at the rate of twenty percent on the actual cost of plant or machinery acquired and installed after the 31.03.2005. However, the bare provision does not indicate whether additional depreciation is allowable only in the first year when the asset was initially put to use or is it allowed in subsequent years as well.
Recently, the Mumbai tribunal in?ACC Ltd.,?relying on its earlier decision in?Ambuja Cement Ltd.?and a decision of the Kolkata tribunal in the?Gloster Jute Mills Ltd.,?held that the provision for additional depreciation under section 32(1)(iia) would be available even in subsequent years and not just in the year when it was first put to use. This is in contrast with the decision of the Mumbai tribunal in?Everest Industries Ltd.?and the Chennai tribunal in?CRI Pumps (P.) Ltd., wherein the sub-section was interpreted in a manner to restrict the availability of additional depreciation to only the first year in which the new plant or machinery is initially put to use.
These contradictory decisions of tribunals have given rise to differing opinions on whether additional depreciation is a one-time or recurring benefit. This article attempts to analyze the provision of section 32(1)(iia) to gain some insight into the controversy.
Analysis
Currently, the clause can be interpreted to provide two different views, each of which has been discussed along with references to relevant case laws in the following paragraphs.
View 1: Additional depreciation would be available only in the year when the asset was put to use.
(i) The usage of the word "new" in clause (iia) of section 32(1) means the asset should be "new" in the year of the claim.
The clause (iia) provides that additional depreciation would be available to "any new machinery or plant", this can be interpreted to mean that the clause would only be attracted in the year of first put to use when the machinery or plant is still new. Once the plant or machinery has been put to use, it cannot be said that the machinery is new. Hence, additional depreciation would only be allowed on the year of put to use and not in subsequent years, as the plant or machinery would no longer be "new".
Reference can be made to the decision of the Chennai Tribunal in?CRI Pumps (P.) Ltd.,?wherein the claim of the assessee for additional depreciation was disallowed based on the above reasoning.
(ii) Actual cost vs. Written down value.
Additional depreciation is calculated on the actual cost of the plant and machinery, while in the case of a block of assets, the depreciation is calculated on the written-down value. Once an asset becomes a part of the block, it loses its individual identity. If additional depreciation is allowed every year, even after the asset becomes a part of the block of assets, the same would result in absurdity. While normal depreciation under Section 32(1)(ii) would be calculated on the written down value of the block, the additional depreciation under Section 32(1)(iia) will have to be calculated on the actual cost of the asset which would be higher than the written down value. Further, the concept of block of assets was introduced to overcome the difficulty of maintaining and arriving at the written down value of each and every individual asset. Allowance of additional depreciation in subsequent years as well would militate against the basic purpose of the concept of block of assets.
Reference can be made to the case of?Everest Industries Ltd.,?wherein the Mumbai tribunal disallowed the claim of additional depreciation in a subsequent year by adopting the above reasoning.
(iii) The insertion of the 3rd?proviso vide the Finance Act, 2015.
The third proviso to section 32 was inserted vide the Finance Act, 2015, with effect from 01.04.2016. It provides that if an asset eligible for additional depreciation under section 32(1)(iia) has been put to use for less than 180 days in the year of acquisition, then in that year, the assessee would be eligible to avail only 50% of the prescribed rate of depreciation, however, in the subsequent year, the assessee can claim the remaining depreciation. This proviso seems to imply that additional depreciation can be claimed only once.
In the case of?Everest Industries Ltd.,?the Tribunal relied heavily on this point and concluded that the third proviso makes it very clear that the additional depreciation is allowed only once.
View 2: Additional depreciation would be available in subsequent years as well.
(i)?Legislative history: Deliberate omission of the restriction from the Finance Act, 2005 onwards
Clause (iia) for additional depreciation was initially introduced in 1980 and existed in statue books till 1988. The said clause specifically provided that the additional depreciation would be allowable only in respect of the previous year in which the machinery or plant was installed or if the machinery or plant was first put to use in the immediately succeeding previous year, then in respect of that previous year, i.e. the additional depreciation was admissible?only in one year.
A similar clause was reinserted in 2002 to provide for additional depreciation of fifteen per cent of the actual cost of a new plant or machinery. The sub-section also restricted the additional depreciation allowance to?only in one year, i.e. a year of commencement of manufacture or substantial expansion.
Thereafter, the said clause was amended vide the Finance Act, 2005. The rate of additional depreciation was increased from fifteen percent to twenty percent on new machinery or plant acquired or installed after 31.03.2005. Most pertinently, the amendment did away with the specific restriction of allowability of additional depreciation in the year of commencement of new industrial undertaking or substantial expansion of existing undertaking.
On a perusal of the legislative history, it can be contended that since the legislature has, in its wisdom, removed the restriction of allowability of claim of additional depreciation in a specific year only, additional depreciation should be allowed in subsequent years as well.
Reference can be made to the decision of the Kolkata Tribunal in the matter of?Gloster Jute Mills Ltd.?wherein the Tribunal noting the legislative history of the clause (iia) of section 32(1), observed that from the AY 2005-06, on a plain and literal construction of the statutory provision, it can be seen that, the restriction with regard to the year in which additional depreciation should be allowed, was effectively removed. Hence, the Tribunal allowed additional depreciation in the subsequent years as well.
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(ii) The usage of the word "new" in clause (iia) does not mean the asset has to be "new" every year
The word "new" in clause (iia) of section 32(1) can be alternatively interpreted to mean that the plant and machinery must be new at the time of installation to be eligible for additional depreciation.
Reference can again be made to the decision of?Gloster Jute Mills Ltd.?wherein the Tribunal noted that the usage of the word "new" was to impose the condition that the plant and machinery must be new at the time of installation. It does not indicate that the plant and machinery must be new even in subsequent years for the assessee to avail the benefit of additional depreciation.
Conclusion
The clause (iia) of section 32(1) dealing with additional depreciation went through several amendments, ultimately leading to the current clause (iia), which does not provide explicitly when the additional depreciation would be allowable- every year or only in the first year when the new asset is initially put to use. Despite several decisions of different tribunals, there is no finality.
In light of the dissenting views, it appears that there remains a fair amount of confusion with respect to how the clause (iia) should be interpreted. Judgement of higher courts or clarification from the department would help reduce the said ambiguity and give a clear way forward to the taxpayers.
That’s it from us for today! Stay Tuned for more updates from Taxmann.com.
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