Gujarat High Court
The Commissioner Of Income Tax vs Torrent Pharmaceuticals ... on 21 June, 2016
Author: K.S.Jhaveri
Bench: Ks Jhaveri, G.R.Udhwani
O/TAXAP/787/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 787 of 2007
With
TAX APPEAL NO. 797 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI sd/-
and
HONOURABLE MR.JUSTICE G.R.UDHWANI sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE COMMISSIONER OF INCOME TAX....Appellant(s)
Versus
TORRENT PHARMACEUTICALS LTD....Opponent(s)
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1
MR B S SOPARKAR, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 21/06/2016
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O/TAXAP/787/2007 JUDGMENT
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) Since the issue raised in these appeals is common, they are heard and decided together by this common judgment.
2. The appellantrevenue has challenged the order dated 03/11/2016 made by the ITAT in ITA No.1044/Ahd/2001 for the assessment year 199798 by filing Tax Appeal No.787 of 2007; whereas the Tax Appeal No.797 of 2007 has been filed challenging the order dated 03/11/2016 made by the ITAT in ITA No.886/Ahd/2001 for the assessment year 199697.
3. Tax Appeal No.787 of 2007 was admitted on the following question of law:
"(C ) Whether the Appellate Tribunal is right in law and on facts in upholding the order passed by the CIT(A) in deleting the addition of Rs.2,97,65,150/ out of interest paid on non convertible portion of debentures, which according to the Assessing Officer gave an enduring benefit to the assessee?"
4. Whereas, Tax Appeal No.797 of 2007 was admitted on the following question of law:
"Whether the Appellate Tribunal is right in law and on facts in upholding the order passed by CIT (A) in deleting the addition of Rs.6,41,29,925/ out of interest paid on non convertible portion of debentures, which according to the Assessing Officer gave an Page 2 of 12 HC-NIC Page 2 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT enduring benefit to the assessee?"
5. Learned Counsel for the appellant has submitted that the learned Tribunal has committed serious error of law by not considering the issue of interest paid on nonconvertible debentures capitalized and debited in working capital in progress.
6. On the other hand, learned Counsel for the respondent has submitted that the issue involved in these two matters is squarely covered by a decision of this Hon'ble Court in case of Deputy CIT V. Core Health Care Ltd., [2001] 251 ITR 61 which has been confirmed by the Hon'ble Apex Court as reported in case of Deputy Commissioner of IncomeTax v. Core Health Care Ltd., [2008] 298 ITR 194 (SC) wherein the interest paid on the nonconvertible debentures portion has considered to be an expenditure and therefore the deletion made by the tribunal is just and proper.
7. Having heard the learned Counsel for the parties and having considered the decision as referred in earlier paragraph, this Court is of the view that issue is now squarely covered by not only the decision of this Court, but also confirmed by the Apex Court. Relevant discussion made in the said decision reads thus:
"7. We quote hereinbelow Section 36(1)(iii) and Explanation 8 to Section 43(1) of the 1961 Act which read as follow:Page 3 of 12
HC-NIC Page 3 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT "OTHER DEDUCTIONS
36. (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in Section 28
(iii) the amount of the interest paid in respect of capital borrowed for the purposes of the business or profession:
Provided that any amount of the interest paid, in respect of capital borrowed for acquisition of an asset for extension of existing business or profession (whether capitalised in the books of account or not); for any period beginning from the date on which the capital was borrowed for acquisition of the asset till the date on which such asset was first put to use, shall not be allowed as deduction.
Explanation : Recurring subscriptions paid periodically by shareholders, or subscribers in Mutual Benefit Societies which fulfill such conditions as may be prescribed, shall be deemed to be capital borrowed within the meaning of this clause;"
"43. Definitions of certain terms relevant to income from profits and gains of business or Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT profession.
43. In sections 28 to 41 and in this section, unless the context otherwise requires (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:
Provided that where the actual cost of an asset, being a motor car which is acquired by the assessee after the 31st day of March, 1967, but before the 1st day of March, 1975, and is used otherwise than in a business of running it on hire for tourists, exceeds twentyfive thousand rupees, the excess of the actual cost over such amount shall be ignored, and the actual cost thereof shall be taken to be twentyfive thousand rupees.
Explanation 8: For the removal of doubts, it is hereby declared that where any amount is paid or is payable as interest in connection with the acquisition of an asset, so much of such amount as is relatable to any period after such asset is first put to use shall not be included, and shall be deemed never to have been included, in the actual cost of such asset."
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O/TAXAP/787/2007 JUDGMENT
8. Interest on moneys borrowed for the purposes of business is a necessary item of expenditure in a business. For allowance of a claim for deduction of interest under the said section, all that is necessary is that # firstly, the money, i.e. capital, must have been borrowed by the assessee; secondly, it must have been borrowed for the purpose of business;
and, thirdly, the assessee must have paid interest on the borrowed amount [See: Calico Dyeing & Printing Works v. Commr. Of Incometax, Bombay CityII #(1958) 34 ITR 265]. All that is germane is : whether the borrowing was, or was not, for the purpose of business. The expression "for the purpose of business" occurring in Section 36(1)(iii) indicates that once the test of "for the purpose of business"
is satisfied in respect of the capital borrowed, the assessee would be entitled to deduction under Section 36(1)(iii) of the 1961 Act. This provision makes no distinction between money borrowed to acquire a capital asset or a revenue asset. All that the section requires is that the assessee must borrow capital and the purpose of the borrowing must be for business which is carried on by the assessee in the year of account. What subsection (iii) emphasizes is the user of the capital and not the user of the asset which comes into existence as a result of the borrowed capital unlike Section 37 which expressly excludes an expense of a capital nature. The legislature has, therefore, made no distinction in Section 36(1)(iii) between "capital borrowed for a revenue purpose" and "capital borrowed for a capital Page 6 of 12 HC-NIC Page 6 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT purpose". An assessee is entitled to claim interest paid on borrowed capital provided that capital is used for business purpose irrespective of what may be the result of using the capital which the assessee has borrowed. Further, the words "actual cost" do not find place in Section 36(1)(iii) of the 1961 Act which otherwise find place in Sections 32, 32A etc of the 1961 Act. The expression "actual cost" is defined in Section 43(1) of the 1961 Act which is essentially a definition section which is subject to the context to the contrary.
9. In the case of Commissioner of Incometax v. Associated Fibre and Rubber Industries (P) Ltd. # (1999) 236 ITR 471, the Division Bench of this Court held as follows:
"Even though the machinery has not been actually used in the business at the time when the assessment was made, the same has to be treated as a business asset as it was purchased only for business purposes. In the circumstances, the interest paid on the amount borrowed for purpose of such machinery is certainly a deductible amount."
10. As stated above, the Department contended before us that the judgments of this Court, prior to insertion of Explanation 8 in Section 43(1) of the 1961 Act, has no application to the present case. According to the Department, Section 36(1)(iii) of Page 7 of 12 HC-NIC Page 7 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT the 1961 Act being general in nature has to give way to special provisions contained in Explanation 8 to Section 43(1) of the 1961 Act. According to the Department, in none of the earlier judgments this Court has considered the true scope of Explanation 8 to Section 43(1) vis`vis Section 36(1)(iii) of the 1961 Act. We find no merit in this contention. Section 43 groups together all provisions in the nature of definitions or interpretations relevant to the computation of income under the head "Profits and Gains of Business". Section 43(1) defines "actual cost". The definition of "actual cost" has been amplified by excluding such portion of the cost as is met directly or indirectly by any other person or authority. Explanation 8 has been inserted in Section 43(1) by Finance Act, 1986 (23 of 1986), with retrospective effect from 1.4.74. It is important to note that the word "actual cost" would mean the whole cost and not the estimate of cost. "Actual cost"
means nothing more than the cost accurately ascertained. The determination of actual cost in Section 43(1) has relevancy in relation to Section 32(depreciation allowance), Section 32A(investment allowance), Section 33(development rebate allowance), and Section 41(balancing charge). "Actual cost" of an asset has no relevancy in relation to Section 36(1)(iii) of the 1961 Act. This reasoning flows from a bare reading of Section 43(1). Section 43 defines certain terms relevant to income from profits and gains of business and, therefore, the said section commences with the words "In Sections 28 to Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT 41 and unless the context otherwise requires" "actual cost" shall mean the actual cost of the assets to the assessee, reducing by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. In other words, Explanation 8 applies only to those Sections like Sections 32, 32A, 33 and 41 which deal with concepts like Depreciation. The concept of Depreciation is not there in Section 36(1)(iii). That is why the legislature has used the words "unless the context otherwise requires". Hence, Explanation 8 has no relevancy to Section 36(1)(iii). It has relevancy to the aforementioned enumerated sections. Therefore, in our view Explanation 8 has no application to the facts of the present case.
11. Before concluding on this point we may state that in this batch of civil appeals we are concerned with the assessment years 199293, 199394, 199596 and 199798. A proviso has since been inserted in Section 36(1)(iii) of the 1961 Act. That proviso has been inserted by Finance Act, 2003 w.e.f. 1.4.2004. Hence, the said proviso will not apply to the facts of the present case. Further, in our view the said proviso would operate prospectively. In this connection it may be noted that by the same Finance Act, 2003 insertions have been made by way of proviso in Section 36(1)(viia) by the same Finance Act which is also made with effect from 1.4.2004. Same is the position with regard to insertion of a subsection Page 9 of 12 HC-NIC Page 9 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT after Section 90(2) and before the Explanation. This insertion also operates w.e.f. 1.4.04. In short, the above amendments have been made by Finance Act, 2003 and all the said amendments have been made operational w.e.f. 1.4.04. Therefore, the proviso inserted in Section 36(1)(iii) has to be read as prospectively and w.e.f. 1.4.04. In this case, we are concerned with the law as it existed prior to 1.4.2004. As stated above, we are not concerned with the interpretation or applicability of the said proviso to Section 36(1)(iii) w.e.f. 1.4.04 in the present case.
12. In the case of Challapalli Sugars Ltd. (supra) this Court observed that interest paid on the borrowing utilized to bring into existence a fixed asset which has not gone into production, goes to add to the cost of installation of that asset. It was further observed that if the said borrowing was not "for the purpose of business" inasmuch as no business had come into existence, it must follow that it was made for the purpose of acquiring an asset which could be put to use for doing business, and hence interest paid on such borrowing would go to add to the cost of the assets so acquired.
13. In our view the above observations have to be confined to the facts in the case of Challapalli Sugars Ltd. (supra). It was a case where the company had not yet started production when it borrowed the amount in question. The more appropriate decision Page 10 of 12 HC-NIC Page 10 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT applicable to the present case would be the judgment of this court in the case of India Cements Ltd. v. Commissioner of Incometax, Madras # (1966) 60 ITR 52 in which it has been observed that, for considering whether payment of interest on borrowing is revenue expenditure or not, the purpose for which the borrowing is made is irrelevant. In our view, Section 36(1)(iii) of the 1961 Act has to be read on its own terms. It is a Code by itself. Section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because of that the section requires is that the assessee must borrow the capital for the purpose of his business. This dichotomy between the borrowing of a loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself bring any new asset of enduring nature into existence, and that it is the transaction of investment of the borrowed capital in the purchase of a new asset which brings that asset into existence. The transaction of borrowing is not the same as the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing & Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for Page 11 of 12 HC-NIC Page 11 of 12 Created On Tue Jun 28 00:05:20 IST 2016 O/TAXAP/787/2007 JUDGMENT the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the above decisions.
CONCLUSIONS
14. For the above reasons, we hold that A.O. was not justified in making disallowance of Rs.1,56,76,000/ in respect of borrowings utilized for purchase of machines. Accordingly, the above question is answered in favour of the assessee and against the Department."
8. In light of the aforesaid settled legal position, this Court does not deem it fit to discuss the issue any further and no elaborate reasons are required to be given. We, therefore, answer the issue in favour of the assessee and against the Department. Accordingly, both the appeals are dismissed.
(K.S.JHAVERI, J.) (G.R.UDHWANI, J.) sompura Page 12 of 12 HC-NIC Page 12 of 12 Created On Tue Jun 28 00:05:20 IST 2016