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| DATE: | February 9, 2012 (Date of publication) |
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| Click here to download the judgement (topman_80HHC_DEPB.pdf) |
s. 80HHC/ 28(iiid): DEPB sale proceeds is not “profits”
The assessee sold the Duty Entitlement Pass Book (“DEPB”) which had accrued on export of its products. S. 28 (iiid) provides that “any profit on the transfer” of the DEPB shall be business profits. Under Explanation (baa) to s. 80HHC, 90% of “the sum referred to in s. 28(iiid)” has to be reduced from the business profits. Under the third Proviso to s. 80HHC (3), in the case of an assessee having an export turnover exceeding Rs. 10 crores, the profits referred to in s. 80HHC (3) can be increased by 90% of “the sum referred to in s. 28 (iiid)” only if two conditions are satisfied. If the said conditions are not satisfied, no relief on account of DEPB can be granted u/s 80HHC. In Topman Exports vs. ITO 318 ITR 87 (Mum)(SB)(AT) the Special Bench of the Tribunal held that “the sum referred to in s. 28(iiid)” meant only the “profits” on transfer of the DEPB and not the entire sale proceeds. The Tribunal held that the amount received on account of DEPB had to be bifurcated into the “face value” of the DEPB and the “profit” and that while the “face value” was assessable u/s 28(iiib), the “profit” was assessable u/s 28(iiid). The consequence was that only the “profit” suffered the rigors of the third Proviso to s. 80HHC (3) and not the “face value“. On appeal by the revenue, the High Court (CIT vs. Kalpataru Colours and Chemicals 328 ITR 421 (Bom)) reversed the Tribunal and held that the sale proceeds could not be bifurcated into “profits” and “face value” and the entire sale proceeds was “profits” for s. 80HHC r.w.s. 28(iiid). On appeal by the assessee, HELD reversing the High Court:
DEPB is “cash assistance” receivable against exports under the scheme of the Government. While the face value of the DEPB falls under clause (iiib) of s. 28, the difference between the sale value and the face value of the DEPB (the “profit”) will fall under clause (iiid) of s. 28. The High Court was not right in taking the view that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB. DEPB represents part of the cost incurred by a person for manufacture of the export product and hence even where the DEPB is not utilized by the exporter but is transferred to another person, the DEPB continues to remain as a cost to the exporter. When DEPB is transferred, the entire sum received on such transfer does not become his profits. It is only the amount that he receives in excess of the DEPB which represents his profits on transfer of the DEPB.
those assessees who did not prefer an appeal in the light of adverse decision in kalapataru bombay high court decison have every right tp prefer an appeal or revision or rectification petition with consonation request on the support of AP High Court ruling in 159ITR59.
Topman decision has come at a time when the budget is round the corner and amendments are planned. I don’t know whether this ruling is in favour of the assesee or in favour of the government looking at the timing of the ruling. It is most likely that the Government will tinker with the section language to subside the revenue impact of the judgement. Till then one need to keep the fingers crossed. Under the proposed Direct Tax Code Bill in the Government has already set in motion a course correction by drafting clause (iv) in section 33 (2) as under:
“Any consideration on sale of a licence, not being business capital assets, obtained in connection with the business;”