Manner of computation of relief under section 10A of the Act- Ruling of the Karnataka High Court.

The Karnataka High Court (“KHC”) has recently pronounced an important decision enunciating the principles for computing relief under section 10A of the Income Tax Act, 1961 (“the Act”).

In a batch of appeals filed by the Revenue Authorities (“RA”) against Yokogawa India Limited and other related cases, the KHC has ruled that although section 10A has been amended to indicate the tax holiday to be a deduction from the total income as against the exemption, it would need to be read as being a deduction in the computation of total income.  Consequently, it continues to retain the character of an exemption.  Correspondingly, the profits eligible for relief under section 10A of the Act are to be computed, prior to giving effect to the carry forward and set off provisions under section 72 of the Act.

In this special edition of Tax Edge, we have summarised the facts of the case and the decision delivered by the KHC.

Facts of the case

Yokogawa India Limited (“the taxpayer” or “the Company”), had two separate business divisions, one of which was a unit registered under the Software Technology Park of India scheme (hereinafter referred to as “STPI Unit”).  The Company had claimed a relief under section 10A of the Act in respect of the said STPI unit, prior to setting off of brought forward losses and depreciation.

However, during the course of the assessment proceedings the Assessing Officer (“AO”) held that relief under section 10A of the Act is to be provided after setting off all brought forward losses within the context of section 32(1) read with section 72(2) of the Act.  Accordingly, the relief under section 10A was recomputed at Nil, after setting off the losses under section 72 of the Act.  

In appeals, the Commissioner of Income tax (Appeals) [CIT (A)] ruled in favour of the Company by holding that total income used in the provisions of section 10A refers to the global income of the Company and the income eligible for exemption has to be excluded at source even before arriving at the gross total income. Consequently, losses of non 10A unit cannot be set off against the income of the 10A Unit

On further appeals, the Income Tax Appellate Tribunal (“ITAT”), upheld the order passed by the CIT(A) and directed the AO to provide relief under section 10A of the Act without setting off losses from non 10A Units.

The RA preferred an appeal with KHC seeking a ruling on the following substantial question of law on the basis of the amended provisions of the Act with effect from April 1, 2001:

“Whether the ITAT was correct in holding that section 10A/10B deduction should be allowed in the current year without setting off unabsorbed depreciation/business losses, either brought forward from earlier years or pertaining to the current year, either in the case of a non-STP/EOU unit or in the case of the very same unit”

Contention of the Revenue

·         Section 10A [and Section 10B(1)] of the Act provides for profits and gains derived by an undertaking from exports shall be allowed as a deduction from the “total income of the assessee” in accordance with the computation formula laid down under section 10A(4). 

·         Subsequent to April 2001, based on a harmonious reading, the carry forward losses of business have to be set off against profits of the undertaking before arriving at total income of the assessee and consequently, the CIT(A) and ITAT’s interpretation is contrary to the statutory provisions. 

Taxpayer’s Contention

·         Section 10A of the Act finds a place in Chapter-III of the Act which deals with incomes which generally do not form part of the total income.

·         Under section 72(1), what could be set off against the profits earned is the carry forward losses or depreciation, which is to be taken into consideration at the stage of computation of income under Chapter VI of the Act.

·         Consequently, the order passed by the ITAT and the CIT(A) is in conformity with the scheme of the Act and does not call for interference.

Ruling of the KHC

The KHC has upheld the order of the ITAT in favour of the taxpayer, with the following observations:

   10A being an exemption vs Deduction section

·         Even subsequent to the amendment with effect from April 1, 2001, sections 10A/10B of the Act, providing a deduction of profits and gains of an eligible undertaking (as against exemption, pre amendment) are placed in Chapter III which pertain to “incomes which do not form part of total income”.

·         A literal reading requires a deduction from the total income.  The scheme of the Act provides for deduction in computing total income, but the Act does not contain any mechanism for any deduction from the “Total Income” as defined under the Act and the only next step envisaged at this stage is determination of the tax liability.

·         The phrase “total income” has been used in the Act in several places with different connotations and shades.  The relief under section 10A/10B is with reference to the STPI undertakings and not to the assessee.  The relief travels with the undertaking, irrespective of who owns the same and consequently the computation of relief is also with reference to the undertaking.  The phrase total income used in section 10A(1) is therefore to be understood as the total income of the STPI unit.

·         The placement, language and setting of section 10A cannot mean the total income computed in accordance with the provisions of the Act, and instead means profits and gains of the STPI undertaking as understood in its commercial sense.

·         The relief under section 10A of the Act, is in the nature of exemption, although termed as a deduction and the said relief is in respect of commercial profits. Such income is neither subject to charge of income tax nor is includible in the total income and accordingly such income is not liable to be computed under Chapter IV of the Act.  Hence, the correct view would be that relief under section 10A will have to be given prior to Chapter IV, dealing with computation of income under various heads

·         To summarise, income of the 10A unit has to be excluded before arriving at the gross total income and the said income of the Unit has to be deducted at source itself, and not after computing the gross total income.  Total income in context of section 10A means the global income, rather than the total income as defined under the Act.

On setting off the brought forward losses prior to tax holiday claim under section 10A /10B of the Act

·         On the second substantial question of law dealing with setting off the losses, the KHC observed that provisions of section 10A and 10B of the Act were amended with an intention of providing the benefit of carry forward of depreciation and business losses relating to any year of the tax holiday period to be set off against income of any year, post the tax holiday.  This has been also clarified vide Circular 7 of 2003 issued by the Central Board of Direct Taxes.

·         Consequently and in order to give effect to the legislative intention of allowing the carry forward of depreciation and loss suffered in respect of any year during the tax holiday period, for being set off against income post tax holiday, it is necessary that notional computation of business income and depreciation as per the Act be made for each of the tax holiday years.

·         While so computing, the amount of business loss and depreciation remaining unabsorbed at the end of the tax holiday period, needs to be determined to enable set off post tax holiday.

·         Reliance has been placed on the Mumbai High Court’s ruling in the case of Hindustan Unilever Ltd Vs Deputy Commissioner of Income tax and Others (325 ITR 102) and the Madras High Court in the case of Madras Machinery Tools Maintenance Ltd vs CIT ( 75 98 ITR 119) and the Forms listed in Income Tax Rules 1962 to conclude that where an assessee has more than one undertaking for the purposes of section 10A, it is the profit derived from exports from the business of the undertaking alone that has to be taken into consideration and such profit is not to be included in the total income.

·         As the income of the 10A unit has to be excluded at source itself, before arriving at the gross total income, the loss of non 10A unit cannot be set off against the income of the 10A unit under section 72 of the Act.  Similarly, the question of unabsorbed business loss being set off against profits and gains of the undertaking would not arise.

MANISH AGARWAL  comments and analysis The judgment of the Karnataka High Court will settle a protracted litigation on the manner of computation of the tax holiday when there are other business losses.  The judgment is also timely as it will give some finality to one of the important issue on tax holiday computation, at a time when the tax holiday period has ended.  The KHC has however not referred to or distinguished its earlier decision in the case of Himatsingike Seide Ltd (286 ITR 255) wherein it has been held that in granting exemption under section 10B, unabsorbed depreciation allowance and investment allowance of past years should be reduced.  This decision was rendered in the context of the law as it stood prior to the amendment (ie, when relief under section 10A/10B was an exemption). While the Revenue may still prefer to appeal to the Supreme Court (as this has a high revenue impact due to the industry-wide position), with two High Courts (Karnataka and Bombay) ruling favourably on this, should bring some relief to the IT industry. The judgment of the KHC will also have a high persuasive value in the SEZ tax holiday computations as the provisions are similar.