High Court Of Bombay
Protos Engineering Co. (P) Ltd. vs. DCIT
Sections 32AB, 37(1)
V.C. Daga & J.P. Devadhar, JJ.
IT Appeal No. 654 of 2000
3rd October, 2005
Counsel Appeared
F.V. Irani with A.R. Jasani, for the Appellant : Ashok Kotangale, for the Respondent
JUDGMENT
By the court :
Heard.
2. This appeal was admitted on two substantial questions of law which read as under :
“1. Whether the Tribunal failed to appreciate that assuming while denying that the above sum of Rs. 3,36,148 represented a contingent liability, the same having been determined scientifically and accurately was a legitimate deduction in the computation of the appellant’s business income? Whether the Tribunal erred in its interpretation of s. 32AB of the Act and particularly sub-ss. (1) and (3) thereof ?”
Learned counsel appearing for the Revenue does not dispute that so far as the first question is concerned, the same is covered by the judgment of the apex Court in the case of Bharat Earth Movers vs. CIT (2000) 162 CTR (SC) 325 : (2000) 245 ITR 428 (SC). In this view of the matter, the first question is answered in the affirmative, i.e., in favour of the assessee and against the Revenue.
So far as the second question is concerned, the said question is also covered by the judgment of this Court in the case of CIT vs. Parle Biscuits Ltd. in IT Appeal No. 215 of 2002, decided on 23rd Aug., 2004 (unreported) [since reported at (2006) 203 CTR (Bom) 237—Ed.] to which one of us (J.P. Devadhar, J.) was a party. This Court while answering the second question relied upon the judgment of the Supreme Court in the case of Apollo Tyres Ltd. vs. CIT (2002) 174 CTR (SC) 521 : (2002) 255 ITR 273 (SC) wherein the Supreme Court has observed as under :
“A perusal of s. 32AB, as it stood at the relevant time, shows that if an assessee has a total income including income chargeable to tax under the head ‘Profits and gains of business or profession’ and if the income from such business is derived from an ‘eligible business’ and if the assessee has out of such income utilised any amount during the previous year for the purchase of new plant or machinery then it is entitled to a set off of a sum equal to 20 per cent of the profit of such eligible business as computed in the accounts of the assessee which account has been audited in accordance with sub-s. (5) of s. 32AB.
The dispute in the present case is in regard to the question whether the assessee’s investment in the UTI is business, and if so, is it a business which qualifies to be an ‘eligible business’ under s. 32AB ? In regard to the first aspect, we must note that the Tribunal as a question of fact based on material on record has come to the conclusion that the investment in the UTI by the assesseecompany is in the course of its business and its business of manufacture and sale of tyres and sale and purchase of units of the UTI are common in nature and both the businesses are intertwined and interlaced. This finding is accepted by the High Court also. We also find that this business of the assessee-company of buying and selling of units is a business as contemplated under s. 32AB of the Act. The question then is : is it an eligible business under the said section ?
The term ‘eligible business’ is defined under sub-s. (2) of s. 32AB. As per that definition, all business of an assessee-company will be an eligible business unless it falls under the type of business enumerated in sub-cls. (a) and (b) of s. 32AB(2). It is nobody’s case that this business of the assesseecompany is one of those businesses which fall under business enumerated in sub-cls. (a) and (b) of sub-s. (2) of s. 32AB. Therefore, there is no doubt that the business of the assessee-company is an eligible business. The fact that it is shown under a different head of income would not deprive the company of its benefit under s. 32AB so long as it is held that the investment in the units of the UTI by the assessee- company is in the course of its ‘eligible business’. Therefore, in our opinion, the dividend income earned by the assessee-company from its investment in the UTI should be included in computing the profits of eligible business under s. 32AB of the Act.”
No contrary view has been brought to our notice. Since this Court has relied upon the observations of the Supreme Court and held that the view taken by the Tribunal relating to deduction under s. 32AB with regard to income from interest, rent and dividend would fall within the meaning of “eligible business” was correct, following the ratio of the said judgment, we hold that business income earned by the appellant forming part of interest, rent and dividend would fall in “eligible business” under s. 32AB. In this view of the matter, the second question is also answered in favour of the assessee.
Appeal is accordingly allowed with no order as to costs.
[Citation : 282 ITR 550]
