Continental
Construction Ltd. Vs. Commissioner of Income-Tax, Central [1992] INSC 8 (15 January 1992)
Rangnathan,
S. Rangnathan, S.
Ramaswami, V.
(J) Ii Ojha, N.D. (J)
CITATION:
1992 AIR 803 1992 SCR (1) 57 1992 SCC Supl. (2) 567 JT 1992 (1) 140 1992 SCALE
(1)65
ACT:
Income-tax
Act, 1961 : Ss. 9(1)(vi),(vii),119(1),80-0,80-HHB :
Assessee-Engineering
and Construction Company- Undertaking of foreign projects-Approval by Central
Board of Direct Taxes-payments in respect of consideration for supply of technical
information for use outside India and rendering Technical Services to foreign
Government Enterprise-Whether `similar' to `royalty', `Commission or `free'
etc.- Deductions-Scope of Assessee-Whether entitled to relief under S. 80-O for
assessment years earlier to 1983-84 - Whether eligible for deductions under s.
80-HHB for assessment years 1983-84 onwards.
Assessee
Company-Foreign contracts-Execution of- Construction of dam and irrigation
project, water supply project etc.-Services involving specialised knowledge,
experience and skill in constructional operations-Whether ar technical
services.
"Technical
Services"-Whether can be rendered through medium of employees, skilled and
unskilled.
Foreign
projects of `composite' activities-Activities falling partly under S.
80-HHB-Whether relief can be granted under each sections separately.
Activities
of foreign contract falling under S. 80-0 as well as Section
80-HHB-Deductions-Whether can be computed under s. 80-HHB only.
Central
Board of Direct Taxes-Circulars No. 187 dated 23.12.1975 & 253 dated
30.4.1979. Letters dated 28.10.83 and 31.7.1985-Board's power to grant approval
to foreign contracts-Purpose and scope of: Guidelines for approval nature of:
Approval once granted-Whether to continue for subsequent assessment years for
the same agreement.
58
Words and phrases :
`business
of execution of a foreign project', profits derived', `royalty', `similar',
`technical services'-Meaning of.
HEAD NOTE:
Section
80-O of the Income Tax Act, 1961 provides for a deduction in computing the
total income, in respect of royalty, commission, fees, or any similar payment
received by the assessee from the Government of a foreign State or a foreign
enterprise in consideration for the use outside India of any patent, invention,
model, design, secret formula or process, or similar property right or
information concerning industrial, commercial or scientific knowledge,
experience or skill made available or provided or agreed to be made available
or provided to such Government or enterprise by the assessee or in
consideration of technical services rendered or agreed to be rendered outside
India to such government or enterprise by the assessee under an agreement
approved by the Central Board of Direct Taxes in this behalf.
The
appellant-assessee, a civil construction company, describing itself as
Engineers, and contractors executed projects overseas and in India. It undertook certain contracts for
construction, inter alia, of a dam and irrigation project, a fibre-board
factory and a huge water supply project in foreign countries. One of its
projects, called the Karkh Project, which constituted a major portion of its
gross total income was with the Iraqi Government through the Baghdad Water
Supply Administration (BWSA). The contract was for the design, manufacture,
delivery, supply, construction and installation for the first stage of Karkh
Water Supply Scheme. Since tenders had been called for from consortia the assessee
associated with the State Contracting Company for Water and Sewerage Projects,
Baghdad (SCC) and formed a consortium and the said consortium entered into an
agreement on 17.12.1980 with the Iraqi Government. The terms of the consortium
between the assessee and SCC were set out in another agreement dated 18.12.1980
dividing the areas of responsibility (the packages) under the contract between
the two.
The assessee
applied to the Central Board of Direct Taxes (CBDT) for latter's approval to
the contracts "for the supply of Civil construction know-how to the
Government of Iraq" under Section 80-O of the Income-Tax Act, 1961. In para
5(a)(ii) of the proforma of the application prescribed for the purpose, the assessee
indicated that "information concerning industrial, commercial, or
scientific knowledge or skill" was being made available outside India; and
in Column 5(b) thereof it mentioned that technical services would be rendered
by the assessee to 59 BWSA, Government of Iraq through its Indian Engineers,
Scientists, technicians and semi-skilled labours to be inducted for that
purpose.
Meanwhile,
by the Finance Act, 1982, section 80-HHB was inserted to the Act with effect
from 1.4.1983, providing for 25% deduction from the profits and gains derived
from the business of execution of a foreign project undertaken by the assessee
with the government of a foreign State-enterprise.
Sub-section
(5) of section 80-HHB provided that not withstanding any provision in Chapter
VIA of the Act, no part of any consideration or of the income comprised in the
consideration payable to the assessee for execution of a foreign project shall
qualify for deduction for any assessment year under any such other provision.
The
CBDT accorded its approval on 28.10.1983. However, with respect to Karkh and Diwaniyah
projects, the approval was granted for the assessment year 1982-83, stating
that for the subsequent period section 80-HHB, which came into force w.e.f.
1.4.1983, would be operative.
The assessee
claimed and obtained deduction under section 80-0 in respect of some of the
contracts in some assessment year between 1976-77 to 1980-81.
For
the year 1983-84, the assessee returned a gross total income of Rs.
72,67,45,938 but as against this it claimed a deduction of Rs. 89,16,19,198 :
of this, the deduction claimed in respect of karkh and Diwaniyah projects came
to Rs. 77,84,29,446 and Rs. 6,36,85,436 respectively.
As
Board's approval under section 80-0 in respect of these two contracts was
limited to the assessment year 1982-83, the Inspecting Assistant Commissioner
(IAC) declined to grant the assessee any deduction under section 80-0 not only
in respect of these two projects but also for the others, holding that section
80-HHB, and not section 80-0, applied to the agreements. However, relief was
not granted even under section 80-HHB on the ground that conditions for
exemption specified thereunder were not fulfilled. The IAC determined assessee's
total income at Rs. 89,41,35,103 raising a tax demand of Rs. 66,07,72,982.
On
appeal, the Commissioner of Income Tax (Appeals) agreed with the IAC to the
extent that the assesse was not entitled to relief under section 80-0 because :
(1) the
approval of the CBDT for three of the contracts did not extend to assessment
year 1983-84;
(2) all
the contracts undertaken by the assessee were in the nature of `foreign
projects' within the meaning of section 80-HHB; and
(3) notwithstanding
the 60 approval of the CBDT section 80-HHB
(5) ruled
out the grant of relief under section 80-O for any of the projects.
He
however, set aside the assessment and directed the IAC to reappraise assessee's
claim for exemption under section 80- HHB holding that the assessee, being
under a bona-fide belief all through that it was entitled to relief under
section 80-O, did not have a proper opportunity of putting forth its claim for
relief under section 80-HHB.
The assessee
appealed to the Income Tax Appellate Tribunal (ITAT). During the pendency of
the appeal before ITAT, the CBDT, by its letter dated 31.7.1985 modified the
original letter of approval dated 28.10.1983 and made the approval operative
even for years subsequent to assessment year 1982-83.
The
ITAT affirmed the order of the C.I.T. but, at the request of the assessee, made
a reference to the High Court.
The
High Court answered the reference against the assessee holding that the
execution of the work by the assessee fell under section 80-HHB and not under
section 80-O; the receipts of the assessee from the contracts did not fall
within the category of receipts for which deduction is provided in section
80-O; that the Board's approval was a qualified one which fully authorised and
empowered the officer to determine whether all the conditions of the section
were fulfilled as well as the amount, if any, which could be deducted under
section 80-O, In the assessee's appeal to this Court, it was contended by the
Revenue that
(1)
the receipts of the assessee under the contract were profits and gains of its
business of execution of foreign projects under sub-clauses (i) and (ii) of
clause (b) of s. 80-HHB and did not qualify for deduction under section 80-O as
the receipts did not fall under any of the categories either of royalty,
commission, fees or `any similar payment', and the assessee either made any
information available nor rendered any technical service to its foreign clients;
(2)
the contract for Karkh Water Supply Project was in the nature of a turnkey
project as the client wanted the project to be executed by the consortium
complete in all respects and handed over to it, and the client was neither
interested in the details of the information possessed or the services rendered
by the contractor nor was the assessee as per consortium agreement, concerned
with any part of the contract other than the "civil works";
(3)
the assessee neither rendered any technical service nor made such information
available either to the consortium or to the foreign government, but the
information possessed by it and the services rendered in these respects by its
engineers and other employees were utilised by the 61 assessee itself;
(4) the
contract being an integral indivisible one, it was not permissible to the assessee
to dissect the consideration as attributable to its several ingredients and
apportion a part of it as being payment for information made available or
technical services rendered to the foreign government;
(5) even
assuming that the whole or atleast a part of the consideration payable to the assessee
falls under section 80-O, still as per sub-section (5)of section 80-HHB the assessee
would be eligible for deduction under section 80-HHB only; and
(6)
even if the assessee's case falls under section 80-O to will be entitled to
relief not on the entire profits derived by it but only to that portion of the
receipts as can be described as having the character enumerated in section 80-O
On behalf of the assessee it was contended that since the insertion of section
80-HHB has not resulted in the deletion of section 80-O, the two sections
should be read harmoniously and given effect to together restricting the
operation of section 80-HHB to contracts entered into on or after 1.4.1983 so
as not to effect the contracts entered into before that date and approved by
the Board; that even after the insertion of section 80-HHB there is room for
applicability of section 80-O in relation to a contract of composite activities
and section 80-HHB applies only to construction-installation activity simpliciter;
and that once an approval under section 80-O is granted (on whatever date it
be) the approval should ensure for the entire period of contract and connot be
restricted to any particular assessment year or years.
On the
question whether the assessee is entitled to a deduction under section 80-O or
section 80-HHB or partly under one or partly under the other or under neither
of the provisions.
Dismissing
the assessee's appeal, this Court,
HELD :
1.1
The assessee was entitled to the relief under section 80-O for assessment years
earlier to 1983-84 and the approval granted by the Board under that section was
right and proper. However, for the assessment year 1983-84, the assessee does
not qualify for deduction on the terms of that section as the contract receipts
are fully covered by the provisions of section 80-HHB and the deduction under
that section will prevail over the relief that might have been otherwise
available in view of the terms of section 80- HHB(5). [p.116AB]
1.2
The assessee's claim for exemption under section 80-HHB deserves to be
considered afresh after giving the assessee an opportunity of being heard, as
directed by the CIT (Appeals) and confirmed by the ITAT and the High Court. [p.
86BC] 62 Continental Construction Ltd. v. Commissioner of Income Tax. (1990)
185 ITR 230, affirmed.
2.1
Eligibility of an item to tax or deduction can hardly be made to depend on the
label given to it by the parties. An assessee cannot claim deduction under
section 80-O in respect of certain receipts merely on the basis that they are
described as royalty, fee or commission in the contract between the parties. By
the same token, the absence of a specific label cannot be destructive of the
right of an assessee to claim a deduction, if in fact, the consideration for
the receipts can be attributed to the sources indicated in the section. [p.
100BC]
2.2
The receipts by way of royalty, fees, commissions and `similar payments'
envisaged by section 80-O may be derived in the course of a business or
profession and constitute part of the profits and gains of such business or
profession. For instance, the fees received by a consulting scientist, an
architect or an engineer for providing technical services to others will
nevertheless be assessable as part of the profits and gains from such
profession. [p. 90DE]
2.3
The essence of the exemption under section 80-O lies, not in consigning the
receipt to one of the pigeonholes or `royalty', `commission' or `fees' but in
examining whether the receipt is a payment in consideration of one of the two
situations envisaged in the section : e.g., where the assessee is the owner of
a patent or invention, he may generally permit another to make use of patent or
invention, in consideration of a `royalty' payment; or, where the assessee is
in possession or technical know-how, he may be prepared to allow another to
make use thereof in consideration of a `fee' to the assessee; or he may
stipulate a consideration in the form of a commission based on the sales of the
products the other party is able to manufacture with the aid of such invention
or know-how, or an assessee may have achieved some speciality and he may agree
to lend his services to some other person and stipulate a consideration therefor
which may be variously described. [p. 92E-G] Gestetner Duplicators Pvt. Ltd. v.
C.I.T., (1979) 117 I.T.R. 1 (S.C.); Cloth Traders P. Ltd. v. C.I.T., (1979) 118
ITR 243 & Distributors (Baroda) P.
Ltd. v. Union, (1985) 155 ITR 120, referred to.
2.4
The word `similar' occurring in section 80-O connotes that the payment made to
the assessee need not be in the nature of royalty, commission or fees only; it
could be any payment of like nature, made in 63 consideration of the use or
supply of such an asset, knowledge or services in the same manner as royalty,
fees or consideration could be. Therefore, any type of payment received by an assessee
will qualify for deduction under the section so long as it is a payment made in
consideration of one of the two types of transaction referred to in the
section. [p. 93AB]
2.5 In
column 5 of the applications for approval under section 80-O the assessee
stated that the payments under the contracts did not come under category (a) (i)
but they did fall under categories a (ii) and (b) enumerated therein.
The
finding of the Tribunal in this regard is not one of fact based on an
admission; it proceeds on an incorrect appreciation of the contents of assessee's
application for approval. [pp. 93G; 94AB]
3.1
The expression "technical services" has a very broad connotation and
it has been used in section 9(1) (vii) of the Act also so widely as to
comprehend professional services. [p. 98CD]
3.2
Services involving specialised knowledge experience and skill in the field of
constructional operations are "technical services". The Board's
guidelines specifically say so. [p.98DE]
3.3
Any engineering contract involves technical services more so, a contract of the
nature and magnitude involved in the instant case. The contract executed by the
assessee was no ordinary contract; the activities thereunder involved technical
and expertise. It was executed jointly with an enterprise that was nothing but
an instrumentally of the foreign State. [p. 95B-F]
3.4
The assessee had made available technical information to the foreign Government
for use outside India and had also rendered technical
services to the foreign Government of the nature outlined in section 80-O.
[pp.98F; 100F]
4.1
The assessee is a company and any technical services rendered by it can only be
through the medium of its employees, skilled and unskilled. [p. 97E]
4.2 In
order to say that a person is rendering technical services to another, it is
not necessary that the service should be rendered by the former personally and
not through the medium of others. [p.98EF]
5.1
Section 80-HHB provides for an exemption in respect of profits from a
"foreign project" undertaken outside India in the course of 64 business. The expressions
"business of execution of a foreign project" or work forming part of
it or the `profits derived' from the business, take in all aspects of a
business involving than activities referred to in subsection (2) (b) of section
80-HHB together with all activities, commitments and obligation ancillary and
incidental thereto and the profits flowing therefrom. The definition cannot be
restricted to the mere physical activity or putting up the superstructure,
machinery or plant but should be understood to take within its fold all utilisation
of technical knowledge or rendering of technical services necessary to bring
about the construction, assembly and installation. [p. 102FG]
5.2
Section 80-HHB comes into force on 1.4.1983 and should be applicable for assessment
year 1983-84 onwards in all cases. It does not contain even a reference to
section 80-O and so its applicability cannot depend on the formation of the
contract subsequent to that date or to the date of its approval under the
latter section being after that date. [p. 115A]
5.3
Section 80-HHB does not confer an additional benefit; sub-section (5) in no
uncertain terms states that the benefit thereunder will take away the benefit,
if any, under any other provision. This has to be given effect to. [p. 115F]
5.4
The assessee is entitled to deduction under section 80-O on the terms of that
section even for 1983-84 and subsequent years. It becomes disentitled to the
relief not because it does not fulfil the requirements of section 80-O but only
because section 80-HHB(5) stands in the way and mandates that in cases to which
both provisions apply, relief under section 80-HHB will alone be available. [p.
114G]
5.5
The fact that the income in question may qualify for deduction under section
80-HHB does not necessarily exclude the applicability of the provisions of
section 80-O.
The
language of sub-section (5) of section 80-HHB which gives precedence to a claim
under section 80-HHB over one under any other provision, itself necessarily
postulates the possibility of the whole or part of the consideration payable to
an assessee for the execution of a foreign project qualifying for deduction
under any other provision as well. [pp.86G; 87A]
5.6
The statutory interdict cannot be frustrated by the terms of an approval of the
Board under section 80-O. Such approval, at its best, cannot overreach the
limitations imposed on the relief available under that section as a consequence
of section 80-HHB(5). [p.107BC] 65
5.7
The legislature has clearly envisaged the possibility of the same receipts
qualifying for deduction under section 80-HHB as well as under any other
provision of the Act and has specifically provided that, in such a case, the
terms of Section 80-HHB will prevail over the provisions of such other
provision. [p. 106FG]
5.8
One cannot decline to give effect to the applicability of a statutory provision
on the ground of hardship or on the ground that it restricts the relief which,
but for the insertion of the section, would have been available to the assessee,
particularly when the section itself envisages the possibility of the assessee
being also eligible for relief under another section and makes special
provision for that eventuality. [p. 115BC]
5.9
The assessee was able to get 100% relief in earlier years only because the
contract is of such nature that it consists only of the rendering or technical
services so that the fields of the two exemptions completely overlap. On the
other hand, it is possible to conceive of foreign projects wherein the
construction and installation aspect and information or technical services
aspect are kept separate.
Equally,
there can be cases falling under section 80-O which do not at all relate to a
"foreign project" as defined under section 80-HHB. In such cases the
two provisions will continue to operate independently. [p.115F-H]
6.1
The Board was fully justified in considering the receipts of the assessee as
falling under section 80-O and in granting approval to the contract. [p. 105BC]
6.2
Board's approval for the purpose of section 80-O cannot be tentative or
provisional or qualified. The Board can neither limit the relief to certain
assessment years only nor can it restrict or enlarge the scope of the relief
that can be granted under the section. [p. 106AB]
6.3
Once a contract stands approved under section 80-O in relation to the first
assessment year, the approval enures for the entire duration of the contract.
Section 80- O does not envisage an application for approval of the contract
every assessment year or the limitation of the approval granted by the Board to
any particular assessment year. [p. 105DE] C.I.T. v. Institute of Public Opinion, (1982) 134 I.T.R. 23 (Del.),
referred to.
6.4
The Board's approval in respect of assessment years earlier to 66 1983-84 will
enable the assessee to claim like relief under section 80-O for all subsequent
years too. But, after the insertion of Section 80-HHB, in the matter of
receipts government both by Section 80-HHB and Section 80-O, the former and not
the latter will prevail. [p. 106BC]
6.5
The Board's decision of 31.7.1985 extending the approval beyond 1982-83 cannot
be given effect to in the same way as its earlier approval letter of 28.10.1983
for the reasons : (1) the jurisdiction of the Board is to grant approval to a
contract cannot only for the purpose of section 80-O, it has no jurisdiction to
pronounce on the availability or otherwise of an exemption under section 80-
HHB and the Board's opinion as to this, even if expressly stated, cannot bind
the Officer, (2) the relief under section 80-HHB is not dependent on the
approval of the Board and is for a totally different type of transaction; (3)
the letter of 31.7.1985 is also a decision in an individual case and cannot be
treated as a general circular incorporating a policy decision by the Board that
in all cases of a particular type government by both sections relief may be
given under section 80-O; (4) the Board in the 1985 letter only stated, and
rightly, that the approval under section 80-O would enure for 1982-83 onwards,
for the approval of the Board is to the contract and so long as the contract
subsists the relief should be granted on the terms of section 80-O; and (5) the
approval which otherwise qualifies the assessee for relief is no doubt still
effective but its power to qualify for relief if taken away by the new
statutory provision. [pp.114DG; 115B]
6.6
The reasons to vest power of approval in the Board are that it is considered
better equipped, both on considerations of times as well as the technical
knowledge needed to examine the ramifications of technical international
contracts and decide how far the relevant contract and the receipts there under
are of the nature intended to be covered by the exemption clause and that the
applicant is sure to take steps to obtain necessary approval at a state earlier
to the implementation of the contract and he can know well before-hand where he
stands in the matter of tax exemption. [p. 110C-F]
6.7
After the power of approval was vested in the Board, elaborate guidelines, as
provided, inter alia, in Board's Circular NO. 187 dated 23.12.1975 and Circular
No.
253
dated 30.4.79, were drawn up which clearly envisage a detailed examination, by
the Board, of the terms of the contract submitted to it for scrutiny from all
angles relevant for a decision as to eligibility for exemption under section
80-O. These guidelines have also since attained statutory recognition as the proforma
earlier prescribed by the Board has virtually been incorporated in Rule 67 11E
and Form prescribed thereunder. The proforma calls for details of the analysis
of the receipts under the contract.
[pp.
111AB; 113BC]
6.8
The Board has chalked out for itself, quite legitimately and properly, a very
detailed and dominant rule as to the availability of exemptions under section
80-O.
The
guidelines are of general nature, fully sanctioned by the provisions of section
119(1) of the Act and, being instructions enuring to the benefit of the assessee,
cannot be gone back upon by the Department Officers subordinate to the Board,
particularly in a case where no steps have been taken - or even suggested as
necessary to be taken - to revoke the approval already accorded. [p.112 FG] Navnitlal
Javeri's case (1965) 56 I.T.R. 198(SC), relied on.
6.9
While granting the approval under Section 80-O, the Board has not only the
jurisdiction but also the responsibility of examining the agreement submitted
for approval from all angles relevant to the deduction provided for under
section 80-O and it is not competent to the Department to question the
maintainability of the claim for deduction under section 80-O in respect of the
aspects gone into and decided upon by the Board. [p.113DE] 6.10 However, the
assessing officer is not deprived of his functions. He has to satisfy himself that
(i) the amounts in respect of which the relief is claimed are amounts arrived
at in accordance with the formula, principle or basis explained in the assessee's
application and approved by the Board; (ii) the deduction claimed in the
relevant assessment year relates to the items and is referable to the basis on
which application for exemption was asked for and granted by the Board; (iii)
the receipts (before the 1975 amendment) were duly certified by an accountant
or that, thereafter, the amounts have been received in or brought into India in
convertible foreign exchange within the specified period. The second of these
functions is particularly important as the approval for exemption granted in
principle has to be translated into concrete figures for the purposes of each
assessment.
Neither
the introduction of the words "in accordance with and subject to the
provisions of this section" nor the various "conditions"
outlined in the letter of approval add anything to or detract anything from the
scope of the approval. [p.113E-H]
7.1
For purposes of income tax, a principle of apportionment has always been
applied in different contexts.
Consolidated
receipts and expenses have always been considered apportionable in the
contexts; (a) of the capital and revenue constituents comprised in them; (b)
portions 68 of expenditure attributable to business and non-business purposes;
(c) of places of accrual or arisal and (d) of agricultural and non-agricultural
elements in such receipts or payments. [p.100DE] Kanga & Palkhivala on the
Law and Practice of Income- Tax (Vol. I Eighth Edition), referred to.
7.2
Contracts of the type envisaged by section 80-O are usually very complex ones
and cover a multitude of obligations and responsibilities. It is not always
possible or worthwhile for the parties to dissect the consideration and
apportion it to the various ingredients or elements comprised in the contract.
[p. 100CD]
7.3
If, a contract obliges the assessee to make available information and render
services to the foreign Government of the nature outlined in section 80-O, it
is the duty of the Revenue and the right of the assessee to see that the
consideration paid under the contract legitimately attributable to such
information and services is apportioned and the assessee given the benefit of
the deduction available under the section to the extent of such consideration.
[p.100FG]
CIVIL
APPELLATE JURISDICTION : Civil Appeal NO. 3458 of 1990.
Appeal
by certificate from the Judgment and Order dated 24.5.1990 of the Delhi High Court
in I.T.R. No. 110 of 1987.
F.S. Nariman,
Srinivasan, Bishamber Lal Khanna, Harsh Salve, Subhash Sharma, D.N. Sawhney,
Ms. Geetanjali Mohan and Vineet Kumar for the Appellant.
S.C. Manchanda,
Ms. A. Subhashini and B.B. Ahuja for the Respondents.
The
Judgment of the Court was delivered by RANGANATHAN, J. This is an appeal
preferred by M/S. Continental Construction Ltd. (hereinafter called `the assessee')
from the judgment of the Delhi High Court in I.T.R. 110 to 112 of 1987
(reported in 1990-185 I.T.R.178) answering, against the assessee, the following
questions of law referred to it under section 256 of the Income Tax Act, 1961
(`the Act') :
1.
"Whether on the facts and in the circumstances of the case the Tribunal is
right in holding that the income arising from the 69 activities pursuant to the
seven agreement with foreign governments /enterprises, etc. are governed by the
provisions of section 80-HHB of the Income-Tax Act, 1961 and not of section
80-O of that Act?
2.
"Whether on the facts and in the circumstances of the case, the Tribunal
was right in holding that notwithstanding the approvals granted by the Board to
the seven agreements for the purpose of section 80-O, for the purpose of
assessment for assessment year 1983-84, the income arising from these contracts
have to be brought under section 80-HHB of the Income-Tax Act, 1961?"
3."Whether on the facts of the case, the Tribunal is right in holding that
the income from the entire activities under the seven agreements cannot be bifurcated
and is wholly covered under section 80- HHB of the Income Tax Act, 1961?"
4."Whether on the facts and in the circumstances of the case, the Tribunal
is right in holding that the assessee company is not an `industrial company' as
defined in the Finance Act, 1982?" The first two Income-Tax References
were made to the High Court at the instance of the assessee which was
dissatisfied with the decision of the Income Tax Appellate Tribunal on these qestions
: there were two references because the above qestions arouse out of two
cross-appeals before the Tribunal - one by the assessee and the other by the
Department. This appeal by the assessee, CA. 3458 of 1990 is disposed by the
present judgment.
The
third reference (I.T.R. 112/87) was made by the Tribunal at the instance of the
Department on a totally different question which related to the interpretation
of sections 40(c) and 40A(5) of the Act. The High Court answered all the three
references in favour of the assessee and the aggrieved Commissioner of Income
Tax (C.I.T.)_ has preferred an appeal to this Court from that part of the
judgment being C.A. 3458-A of 1990. But that question has no connection with
the other four question set out earlier.
We
have, therefore, delinked the appeal by the C.I.T. for separate hearing. Also,
of the four questions posed above in the assessee's appeal, counsel for the
appellant has stated that he is not pressing question No. 4 before us. We,
therefore, do not express any opinion on it and merely dismiss the appeal in so
far as this question is concerned.
In the
result, we confine this judgemnt to the assessee's appeal and to the first
three of the four questions set out above.
The
questions arise out of the assessee's assessment to income tax for 70 the
assessment year 1983-84 (the calendar year 1982 being the relevant previous
year). Section 80-O of the Act, under which the assessee claimed deductions,
provides for a deduction, in computing the total income , in respect of
royalties etc. from certain foreign enterprises. This topic was originally
dealt with by section 85-C. Section 80-O was substituted in its place w.e.f.
April 1, 1968. The section has since undergone amendments from time to time. As
on 1.4.83, the provision, in so far as is relevant for our purposes, was in the
following terms :
Section
80-O Deduction in respect of royalties etc.
from
certain foreign enterprises.
"Where
the gross total income of an assessee, being an Indian company, includes any
income by way of royalty, commission, fees or any similar payment received by
the assessee from the Government of a foreign State or a foreign enterprise in
consideration for the use outside India of any patent, invention, model,
design, secret formula or process or similar property right, or information
concerning industrial, commercial or scientific knowledge, experience or skill
made available or provided or agreed to be made available or provided to such
Government or enterprise by the assessee, or in consideration of technical
services rendered or agreed to be rendered outside India to such Government or
enterprise by the assesse, under an agreement approved by the Board in this
behalf and such income is received in convertible foreign exchange in India, or
having been received in convertible foreign exchange outside India, or having
been converted into convertible foreign exchange outside India, is brought into
India, by or on behalf of the assessee in accordance with any law for the time
being in force for regulating payments and dealings in foreign exchange, there
shall be allowed, in accordance with and subject to the provisions of this
section, a deduction of the whole of such income so received in, or brought
into India in computing the total income of the assessee.
During
the currency of this provision, the Finance Act, 1982 introduced a new section
80-HHB w.e.f. 1.4.1983. This provision reads thus :
Section
80-HHB Deduction in respect of profits and gains from projects outside India -
(1) Where the gross total income of an assessee being an Indian company or a person
(other than a company) who is resident in India includes any profits and gains
derived from the business of 71 (a) the execution of a foreign project
undertaken by the assessee in pursuance of a contract entered into by him, or
(b) the execution of any work undertaken by him an forming part of a foreign
project undertaken by any other person in pursuance of a contract entered into
by such other person, with the Government of a foreign State or any statutory
or other public authority or agency in a foreign State, or a foreign
enterprise, there shall, in accordance with and subject to the provision of
this section, be allowed, in computing the total income of the assessee, a
deduction from such profits and gains of an amount equal to twenty five per
cent thereof :
Provided
that the consideration for the execution of such project or, as the case may
be, of such work is payable in convertible foreign exchange.
(2)
For the purposes of this section - (a) "convertible foreign exchange"
means foreign exchange which is for the time being treated by the reserve bank
of India as convertible foreign exchange for the purposes of the Foreign
Exchange Regulation Act, 1973 (46 of 1973), and any rules made thereunder :
(b)
"foreign project" means a project for - (i) the construction of any
building, road, dam, bridge or other structure outside India;
(ii) the
assembly or installation of any machinery or plant outside India;
(iii) the
execution of such other work (of whatever nature) as may be prescribed.
(3)
The deduction under this section shall be allowed only if the following
conditions are fulfilled, namely :- (i) the assessee maintains separate
accounts in respect of the profits and gains derived from the business of the
execution of the foreign project, or, as the case may be, of the work forming
part of the foreign project undertaken by him and, 72 where the assessee is a
person other than an Indian company or a co-operative society, such amounts
have been audited by an accountant as defined in the Explanation below
sub-section (2) of section 288 and the assessee furnishes, along with his
return or income, the report of such audit in the prescribed form duly signed
and verified by such accountant :
(ii)
an amount equal to twenty five per cent of the profits and gains referred to in
sub-section (1) is debited to the profit and loss account of the previous year
in respect of which the deduction under this section is to be allowed and
credited to a reserve account (to be called the "Foreign Project Reserve
Account") to be utilised by the assessee during a period of five years
next following for the purposes of his business other than for distribution by
way of dividends or profits;
(iii)
an amount equal to twenty five per cent of the profits and gains referred to in
sub-section (1) is brought by the assessee in convertible foreign exchange into
India, in accordance with the provisions of the Foreign Exchange Regulation
Act, 1973 (46 of 1973), and any rules made there under, within a period of six
months from the end of the previous year referred to in clause (ii) or, where
the Chief Commissioner or Commissioner is satisfied (for reasons to be recorded
in writing) that the assessee is, for reasons beyond his control, unable to do
so within the said period of six months, within such further period as the
Chief Commissioner or Commissioner may allow in this behalf :
Provided
that where the amount credited by the assessee to the Foreign Projects Reserve
Account in pursuance of clause (ii) or the amount brought into India by the assessee
in pursuance of clause (iii) or each of the said amounts is less than twenty
five per cent of the profits and gains referred to in sub-section (1), the
deduction under that sub-section shall be limited to the amount so credited in
pursuance of clause (ii) or the amount so brought into India in pursuance of
clause (iii) whichever is less.
(4) If
at any time before the expiry of five years from the end of the previous year
in which the deduction under sub-section (1) is allowed, 73 the assessee utilises
the amount credited to the Foreign Projects Reserve Account for distribution by
way of dividends or profits or for any other purpose which is not a purpose of
the business of the assessee, the deduction originally allowed under
sub-section (1) shall be deemed to have been wrongly allowed, and the
Income-tax Officer may, notwithstanding anything contained in this Act, recompute
the total income of the assessee for the relevant previous year and make the
necessary amendment; and the provisions of section 154 shall, so far as may be,
apply thereto, the period of four years specified in sub-section (7) of that
section being reckoned from the end of the previous year in which the money was
so utilised.
(5)
Notwithstanding anything contained in any other provision of this Chapter under
the heading "C- Deductions in respect of certain incomes", no part of
the consideration or of the income comprised in the consideration payable to
the assessee for the execution of a foreign project referred to in clause (a)
of sub-section (1) or of any work referred to in clause (b) of that sub-section
shall qualify for deduction for any assessment year under any such other
provision." .lm The three questions which are now for consideration before
us raise the issue whether the assessee is entitled to a deduction under
section 80-O or section 80-HHB or partly under one and partly under the other
or, indeed, under neither of the provisions. We shall now proceed to set out
the factual background in which the issues arise.
The assessee
is a civil construction company which describes itself as Engineers and
Contractors. It has executed a large number of projects overseas and in India,
its projects include dams, irrigation and hydel projects, water supply and
sewerage plants, marine and harbour works, airports etc. The assessee entered
into eight contracts for the construction, inter alia, of a dam and irrigation
project in Libya, a fibre-board factory at Abu Sukhair in Iraq and the huge Karkh
Water Supply Project n Baghdad which was of the total values of 534 million
dollars. For these contracts the assessee obtained the approval of the Central
Board of Direct Taxes (Board' or `C.B.D.T.') in terms of section 80-O. A broad
outline of these projects can be gathered from the following table :
74
------------------------------------------------------------------------- S.
Name of Date of Name of the Date of Period of No. Project agreement Other contrac-
approval approval as per ing party by Board Board's letter -------------------------------------------------------------------------
1.Abu Sukhair 6.9.75 State Organisation 11.8.76 For assessment Project of
Industrial Design years 1976-77 & Construction, Mini- to 1978-79 stry of
Industry & Minerals, Baghdad (Iraq) 2.Wadi Ghan 8.8.77 Socialist people's
Lib 31.8.78 For the assess- Dam -yan Arab Jamahiriya, ment years 1978-
Secretariat of Dams and 79 and onwards Water Resources, Tripoli, (Libya)
3.Ammara 15.3.78 State Contracting Co. 22.2.79 "Assessment years Project
for Water and Sewerage 1979-80 to Projects, Ministry of 1982-83"
Municipalities, Republic of Iraq 4.Nassir- 14.12.78 Ministry of Housing &
7.2.80 "Assessment years iyah Construcion, Govt of 1980-81 and onw-
Project Iraq ards" 5.Sulaim- 10.10.79 Ministry of Housing & 31.5.80
"Assessment years aniyah Construction, Govt of 1980-81 and onw- Project
Iraq ards".
6.West
Bank 12.4.80 Baghadad Sewerage Board 23.7.80 "Assessment years Project
Construction, Govt of 1980-81 and onw- Iraq ards" 7.Karkh 17.12.80 Amanat
Al-Asima, 28.10.83 "For the assessem- Project Baghdad Water Supply ent
year 1982-83.
Administration,
Govt. For the subseque- of Iraq, Baghdad nt period your attention is in- vited
to the pro- ision of s. 80 HHB which are operative w.e.f. 1.4.83" 8.Diwan-
10.1.81 Water & Sewerage 28.10.83 -do- iyah Projects, Baghdad Project 75 In
the light of these approvals, the assessee claimed and obtained deduction under
section 80-O in respect of the receipts from the first six of the contracts in
some of the assessment years between 1976-77 to 1980-81.
For
the assessment year 1983-84, the assessee returned a gross total income or Rs.
72,67,45,938 but, as against this, it claimed a deduction of Rs. 89,16,19,198
in respect of seven of the above contracts, the eight having been completed much
earlier. Of this, the deduction claimed in respect of the Karkh and Diwaniyah
projects came to Rs. 77,84,29,446 and Rs. 6,36,85,436 respectively. As pointed
out above, the letter of approval of the Board under section 80-O in respect of
these two contracts dated 28.10.83 was limited to the assessment year 1982-83.
The Inspecting Assistant Commissioner (I.A.C.), Sri Hari Narain, who completed
the assessment on 26.3.1984 declined to grant the assessee any deduction under
section 80-O not only in respect of these two contracts but also in respect of
the other five. He was of opinion that it was section 80-HHB that applied to
these agreements and not section 80-O.
However,
he declined to grant any relief to the assessee even under section 80-HHB as
the conditions for exemption specified in that sub-section were not fulfilled.
In the result, he determined the assessee's total income at Rs. 89,41,35,103 as
against the NIL income returned by the assessee, thus raising a tax demand of Rs.
66,07,72,982.
On
appeal, the Commissioner of Income-tax (Appeals) gave the assessee partial
relief. He agreed with the IAC that the assessee was not entitled to relief
under section 80-O because : (1) the approval of the CBDT for three of the
contracts did not extend to assessment year 1983-84; (2) all the contracts
undertaken by the assessee were in the nature of `foreign projects' within the maning
of section 80-HHB; and (3) even where the contracts had the approval of the
CBDT the non-obstante provisions of section 80-HHB (5) ruled out the grant of
relief under section 80-O for any of the projects. He however, felt that as the
assessee had been under a bonafide belief all through that it was entitled to
relief under section 80-O, it had not had a proper opportunity of putting forth
its claim for relief under section 80 HHB. He, therefore, set aside the
assessment to enable both sides to marshall their evidence and to enable the
IAC to reappraise the assessee's claim for exemption under that section. The
order of the CIT was dated 26.3.85.
The
Income-tax Appellate Tribunal (ITAT) agreed with the CIT. Its conclusion, set
out succinctly in para 48 of its order was thus :
"To
conclude this point, we would hold that the income and consideration received
by the assessee in the execution of all the seven contracts in general and the Karkh
work in particular fell 76 under the provisions of section 80-HHB as the
contracts were for execution of foreign projects.
We
further hold that in view of the provision of section 80-HHB (5) the claim of
the assessee under section 80-O cannot be considered inspite of the approval
orders of the Board. This ground in the assessee's appeal has, therefore, to be
rejected and the conclusion arrived at by the learned Commissioner of
Income-Tax (Appeals) is upheld," It may be mentioned here that, before the
appeal was heard by the ITAT, the CBDT on a representation made by the assessee
and after some enquiry and correspondence, issued on 31.7.85 a letter modifying
the original letter of approval of 28.10.83 in respect of the Karkh and Diwaniyah
contracts. By this letter, the CBDT directed the substitution of the following
words in place of the word quoted in the last column of the table set out
earlier:
"Assessment
year 1982-83 and onwards".
In
other words, the CBDT lifted its earlier limitation of approval only to
assessment year 1982-83 and made it operative even for subsequent assessment
years. There has been some criticism, on behalf of the assessee, of the manner
in which the Department has sought to get over the effect of modification
letter attributing it to some misunderstanding or confusion. One of the assessee's
principal grievances is that the ITAT has erred in accepting this explanation,
treating the approval of 28.10.1983 as a qualified one and ignoring the letter
of 31.7.85. We shall discuss this aspect later.
The
ITAT, at the request of the assessee, referred the four questions of law which
we have set out earlier for the decision of the High Court. The High Court came
to the conclusion that the receipts of the assessee from the contracts did not
fall within the category of receipts for which deduction is provided in section
80-O. It was of the view that the Board's approval was a qualified one which
fully authorised and empowered the officer to determine whether all the
conditions of the section are fullfilled as well as the amount, if any, which
could be deducted under section 80-O. The Court also came to the conclusion
that the execution of the work by the assessee, in the present case, fall under
section 80 HHB and not section 80-O. In the result, questions 1 to 3 were
answered against the assessee and in favour of the Revenue. The assessee, has,
therefore, preferred these appeals.
As
pointed out earlier, the assessee's claim for deduction relates to seven
contracts and depends on the terms and conditions of each one of them. However,
the Karkh Water Supply scheme contracts has been taken as the 77 model or
specimen for purposes of discussion both because the terms and conditions of
all the contracts are more or less similar and also because the deduction
claimed in respect of this contract constitutes an overwhelmingly high
percentage of the assessee's total claim. We shall also, therefore, proceed to
discuss the issues raised in the light of the terms and conditions of this
contract and the approval given therefor. Before doing so, we would like to
point out that for the assessment year 1983-84 with which we are concerned, a
discussion of the relative spheres of section 80-HHB and section 80-O would be
called for and the assessee may get full or partial relief under either or
neither of the sections for the said assessment year; but if, in the process,
we come to the conclusion that the provisions of section 80-O can have no
application to the contracts in question, such conclusion is bound to have
repercussion also on the deductions claimed by, and allowed to, the assessee
under that section in the earlier years in respect of some of the contracts.
The
Baghdad Water Supply Administration (BWSA) invited tenders from 'experienced
engineering consortia" to submit tenders "for the design,
manufacture, delivery, supply, construction and installation, complete under a
single contract of the works required" for the first stage of the Karkh
Water Supply Scheme. The works comprised 'a River intake and pumping station on
the west bank of the River Tigris about 30 kms. north of Baghdad; raw water
pumping through twin 1800 mm diameter pumping mains to a nearby treatment
works; treatment comprising essentially pre- settlement, clarification and
chemical coagulation, rapid gravity sand filtration and disinfection with
chlorine:
treated
water storage; treated water pumping through twin 2200 mm diameter transmission
pipelines to the city area, and distribution and storage within the west bank
part of the city area and within the municipalities of Abu Ghraib and Taji".
Five volumes of documents containing instructions, conditions, general
specifications and requirements, specifications for plant and civil works, schedules,
and supplementary information and a sixth volume containing 99 drawings were
issued along with the tender documents. Since tenders had been called for from
Consortia, the assessee joined hands with the State Contracting Company for
Water and Sewerage Projects, Baghdad (SCC) to form a consortium and was able to
bag the contract and an agreement was entered into on 17.12.80 between the
Iraqi Government and the Consortium. The terms of the consortium between the assessee
and SCC were set down in an agreement dated 18.12.80 which divided the areas of
responsibility (the packages) under the contract between the two. Broadly
speaking, the SCC was made responsible for the Reservoir works while the assessee
was made responsible for the civil works. The total value of the contract was
325,750,000 Iraq Dinars (ID) of which 65% was 78 payable in U.S. dollars, pound
sterling or Swiss francs.
The
value of the package of the assessee was ID 152,956,253 (75% of which was
payable in the said foreign exchange).
On 3rd
March, 1981, the assessee applied to the CBDT for according approval to the
contract "for the supply of civil construction know-how to the Government
of Iraq" under section 80-O of the Act. A proforma prescribed by the
Revenue was filled up and enclosed to the application. Para 5 to 11 of this proforma run as follows :
5.
Please state whether the income is received in consideration for- (a) the use
outside India of (i) any patent, invention model, design , secret, formula or
process, or similar property right : No (ii) information concerning in- dustrial,
commercial or sci- entific knowledge, experi- ence, or skill made available Yes
(b) technical services rendered Techincal services will be or agreed to be
rendered outside rendered by us to Baghadad India (Please also state the arr-
Water Supply Administration, angements availabe with the appli- Government of
Iraq in accord- cant for rendering such technical ance with the said agreement
services and the mode of tendering dated 17.12.80. The technical such
services). know-how and services will be rendered by us through our qu- alified
experienced and skilled Engineers, Scientists and Tech- nicians, for that
purpose, a strength or about 1,800 Indian Engineers, Tecnicians and semi-
skilled labours will be inducted.
6.Does
the Agreement provide for The agreement also provides for supply of technical
know-how or the supply use of goods as per rendering of any services other
details given below :
than
those covered by section 80-0(e.g. use of trade marks or supply of goods) if so
Machinery, plant, Equipment, Ve- please specify them and also hicles cement,
steel-bars, Sand the amount of consideration Aggregate, Bitumen, Fencing-fabri
c, receivable/received in resp- Shuttering material, Steel pipes, ect of them.
Patent items, projection cladding ceiling, Joining, Steel Pipes wit h joining
and aductile iron pipes e tc.
The
cost of 79 supply of these tiems will be det er- mined at the close of each
year a s the work progresses. The total va lue of the contract is ID 152,956,253
.
After
taking out the net cos t of machinery & equipment and other e mbed- ded
items, as mentioned above (in whi- ch no profit elements is involved ), from
the total value of the Contr act the remaining amount will be the value of
technical know-how and s erv- ices to be rendered by us under t his contract,
It is this amount for w hich we are seeking exemption u/s 80-O .
7.If
technical know-how falls Not applicable.
under
5(a)(i) above, please indicate.
(a) how
the applicant acquired Not applicable.
it or
what arrangements he has made for acquiring it (b) What are the applicant's own
Not applicable.
rights
in respect thereof (c) Whether its provision to the other party to the
agreement involves :- (i) transfer of all or any rights of the applicant in
respect of Not applicable.
it, if
so, please specify the nature and extent of the right transferred and the
manner of its transfer :
(ii)the
imparting of any information concerning its working or use; if so, please
specify the information Not applicable.
imparted
and the manner of its imp- arting;
(iii)its
use by the other person to the agreement if so, please specify the nature and
manner of the use. Not applicable.
8.If
the technical know-how falls under (a)(ii) above, please specify 80 (a) the
arrangements available with the we have on our rolls qual ifed applicant for
obtaining and impart- Engineers and Technicians who ing it have already
acquired the re- quisite scientific knowle dge, experience and skill for giv- ing
such technical know-h ow and it is they, who will be imparting the same to the
client by executing the w orks at the site in Iraq.
(b) the
manner of imparting it The Engineers and Technici ans will be working for about
5 years at the site of const r- uction to impart the techn ical know-how and
services on b e- half of our Company.
9. Has
the applicant made any agree- ment or arrangement with any other person in India or abroad for obta- ining the
technical know-how etc., Not applicable.
to be
provided under this agreement or for rendering technical services? If so please
give the follwing infor- mation :
(i) the
name and address of such Not applicable.
other
person;
(ii) details
of the agreement or ar- rangement together with a cer- Not applicable.
tified
copy of the written agreement, if any.
(iii)the
nature, and extent of appli- cant's relationship association Not applicable.
with
such other person.
10.
Please state the nature of the income Income out of imparting c ivil in respect
of which deducation is claimed, construction know-how and viz.., services for
the connstru c- tion of work of Karkh Wat er Supply Scheme, Baghdad.
Royalty
Commissin Fees 81 Any similar payment
11.
Please indicate the portion/amount (alongwith its computation) which is Please
see our reply under eligible for deduction under section S. No. 6 of this form.
80-O
of the Act.
On
9.7.81, the C.B.D.T. called upon the assessee to clarify four aspects of its
application : (i) the details or the materials and equipment to be supplied by
the assessee under the contract and the quantum of profit thereon; (ii) whether
any engineers, scientists and technicians were recruited in India and there was
any fee attributable to such services ; (iii) whether any tests on materials
and workmanship were carried out in India and there was any fee attributable to
such tests; and (iv) the break-up of the fee relating to the supply of
information/know-how and rendering of the technical services. The assessee
answered in the following terms on 4.8.1981 :
"As
desired, the information/ clarification is furnished below :- (i) Our contract
is for civil construction and know-how. The use of materials and equipment is
part of these services. There is no separate supply of materials and equipment.
As
such the question of any separate quantum of profit on the same does not arise.
As the material is purchased locally in Iraq,
there is no possibility or making any profit on its consumption in execution of
the works.
(ii)
The qualified experienced skilled engineers, scientists and technicians are our
employees and sent to Iraq for executing the work under
contract. We do not avail of the service of any agency for the purpose. As such
there are no recruitment expenses involved. Consequently no fee can be
attributed on the transfer of our workers to foreign country.
(iii)No
tests will ever be taken in India because
all works will be executed in Iraq. The
question of attributing any fees to such test in India, therefore, does not arise. These tests are part of the
process undertaken to render technical know-how (Vi) The profits which will
accrue to our Company will be the gross contracts receipts less expenses
incurred in supplying technical know- how and execution of the works, It is 82
estimated that this will be about 25% of the contract value. The exact amount
may vary and will be known only after the works have been completed."
There was further correspondence, discussion and hearing including a detailed
letter of the assessee dated 24.12.1981 and clarificatory letters dated
15.2.1982, 17.3.1982, 9.10.1982, some of the contents of which may have to be
referred to later. Eventually, the C.B.D.T. accorded its approval to the
agreements, as already maintained, on 28.10.1983. The letter of approval has to
be extracted here. It runs :
"I
am directed to refer to your application 3.3.1981 received with your letter No.
601/IT/80-O dated 3.3.1981 and to convey the approval of the Central Board of
Direct Taxes to the agreement entered into between you and M/S. Amanat Al-Asima
Baghdad Water Supply Administration, Government of Iraq, Baghdad, on 17.12.1980
for the purpose of section 80-O of the Income-Tax Act, 1961, for the assessment
years 1982-83. For the subsequent period your attention is invited to the
provision of Sec. 80-HHB which are operative w.e.f. 1.4.1983.
2. The
income allowable as a deduction for the assessment year 1981-82 and onwards
would be the income computed after accounting for expenses incurred in earning
such income i.e. net income.
3. The
actual deduction to be allowed will, however, be such portion of the income
which has been received in convertible foreign exchange in India, or having
been received in convertible foreign exchange outside india or having been
converted into convertible foreign exchange outside India is brought into India
in accordance with the law for the time being in force for regulating payment
and dealings in foreign exchange.
4. The
grant of deduction from the total Income will be subject to your fulfilling the
other conditions laid down in the Act in this behalf.
The
amount eligible for deduction will be determined by Income-tax Officer at the
time of assessment.
5.
This approval is subject to any amendment in the provisions of the Income-tax
Act, 1961, from time to time.
83
6. I
am further to add that the approval accorded by this letter is only for the
purpose of section 80-O of the Income-tax Act, 1961, and should not be
construed to convey the approval of the Central Government or Central Board of
Direct Taxes or any other statutory authority under the Government for any
other purposes." It may be mentioned that even while the assessee's
applications for approval to the Kharkh & Diwaniya contracts were pending,
the Finance Act, 1982 had amended the Act to insert section 80-HHB with effect
from 1.4.1983.
This
amendment compelled the assessee to send a letter to the C.B.D.T. on 9.10.82
explaining that this new provision would not stand in the way of approval being
accorded to its contracts under section 80-O. But despite the pleas in this
letter the C.B.D.T., in para 1 of its letter of approval of 28.10.1983
restricted the approval to assessment year 1982-83. The assessee, therefore,
wrote again in detail on 2.12.1983, urging the Board that the reference to
section 80-HHB in the letter of approval was uncalled for and that the approval
granted should be made valid for the entire duration of the contract. The
material on record shows that this letter was the subject of careful
consideration by the C.B.D.T. which finally issued a clarification in the
following terms on 31.7.1985, more than a year and a half later :
"With
reference to your representation dated 2.12.83 on the above subject, I am
directed to say that for the words and figures "assessment years 1982-83.
For the subsequent period your attention is invited to the provision of section
80-HHB which are operative w.e.f. 1.4.83," appearing at the end of para 1
of the Board's letter F. NO. 473/46/81- FTD dated 28.10.83, the following words
and figures may please be substituted :
"assessment
years 1982-83 and onwards" It appears that though the above intimation to
the assessee was cryptic, the CBDT had decided to extend the period of operativeness
of its approval under section 80-O only after consulting the Attorney General
of India (A.G.).
The
CBDT had circulated the opinion of the A.G. in this case along with the
statement of case put up to him for opinion to all the officers of the
Departments. On 14.8.1985, the CIT Central-I), New Delhi wrote a letter to the concerned member of the CBDT which
makes interesting reading. We do not wish to extract, or comment on, the
contents of this letter here. Suffice 84 it to say that the writer of the
letter was of opinion that the CBDT should not have reviewed the decision taken
by it on 28.10.83. He stated that, on the strength of the CBDT's letter dated 31.7.85,
the assessee was claiming 100% exemption and requested that "clear
instructions" should be issued early 'on the complications" pointed
out in the letter; Thereupon, a letter. dated 24.9.1985 was addressed by the
Deputy Secretary (FTD), Government of India, (who, at the time, happened to be
Sri Hari Narain, the IAC who had completed the assessment on the assessee) to
the C.I.T.(Central), New
Delhi to the
following effect :
"Please
refer to your D.O. No. 77, dated 14th August, 1985 addressed to Member I.T.(J) on the above subject.
2.
Letter F. No. 473/644/83-FTD dated 31 st July, 1985 was only in recognition of
the position that the approval u/s 80-O is for the agreement as such and the mention
of any time limit therein is redundant, except for the starting year.
3. As
would be noticed from all the approval letters themselves, Board's approval to
the agreements is subject to the other conditions of the Act being satisfied.
These have to be examined carefully by the assessing officers while making the
assessments. If the income does not satisfy the requirements of section 80-O,
it cannot be said that the mere approval would automatically entitle the assessee
to relief u/s 80-O. The quantum, if any, of the income which would be entitled
to relief under section 80-O has necessarily to be determined by them on the
facts of each case.
4. It
would also be noticed from all the approval letters that they are subject to
amendments enacted in the Income-tax Act, 1961, from time to time.
Therefore,
notwithstanding the approval under section 80-O or the words "Assessment
year 82-83 and onwards", if the project or work falls within the
definition given in section 80-HHB(1), the same would be hit by the provision
of section 80-HHB(5).
5.
Your apprehension that the approval has been modified or that it ignores the
provisions of Section 80-HHB is, therefore, without any basis.
The
position in respect of letter F. No. 473/643/83-FTD dated 31.7.1985 for the
agreement dated 10.1.81 in respect of the same assessee is also
identical." 85 Normally, correspondence of this type would be hardly
relevant for deciding question regarding the construction or a section in the
statute. But, apparently, the Department, before the Tribunal, relief upon the
letter of 14.9.85 as superseding the effect of the approval granted on 31.7.85.
The
Tribunal, in its appellate order, referred to these letters. It observed :
"It
is that in respect of Karkh and Diwaniyah Projects confusion which has arisen
in this case could have been avoided. In the first approval letter the Board
confined the approval to the assessment year 1982-83 and referred to section
80- HHB for the subsequent years. On representation by the assessee the matter
was considered for almost two years and meanwhile the assessment was also made
and the first appellate authority also decided the matter. It was only in July,
1985 that the Board rectified their earlier order removing the reference to
section 80-HHB for the assessment years 1983-84 onwards. The second order was
likely to give an impression that the rectification has been made in view of
the representation made by the assessee about the scope and application of
section 80-HHB. This impression was not only created in the minds of the assessee
but also led to some misunderstanding in the mind of the Commissioner.
When
he sought a clarification the Board stated that inspite of approval under
section 80-O if the income does not satisfy the requirements of that section,
the assessee would not be entitled to such deduction. In this letter it was
also stated that the mention of the assessment years in the approval orders was
redundant. We have referred to this clarification given by the Board only
because the the learned counsel for the revenue has adopted the arguments given
in this letter as his own. There is no doubt that the first qualifies approval
followed by the modification of that approval coupled with this thinking on the
part of the Board as given to the Commissioner does indicate that the position
was not clear in the mind of the authorities who approved or modified the
approval of the contracts. Be that as it may, we have to consider the matter
from the angle of law as it stands and we cannot decide on the basis of some
misunderstanding or confusions which might have been created at some
stage." Learned counsel for the assessee vehemently criticised the issue
of the letter of 'clarification" by the officer who had completed the
assessment in the case. He urged that the Tribunal should not have taken into
account the contents of this letter at all and, in any event, could not have
drawn an 86 inference, because of this letter, that the position was not clear
in the mind of the CBDT. He also pointed out that he had sought for a reference
of a "question of law" Of the High Court on this aspect which the
Tribunal (in his submission, unjustifiably) declined on the ground that the
letter had been considered only because it was adopted as an argument by counsel
for the Revenue. One aspect which may need consideration by us is the question
how for the issue of the letter of 14.9.85 affects the assessee's claim for
exemption under section 80-O in the present case.
There
does not seem to be much doubt that the provisions of S. 80-HHB apply to the
contracts in the present case and that, at the worst, the assessee's claim for
exemption under section 80-HHB deserves to be considered afresh after giving
the assessee an opportunity of being hard, as directed by the CIT (Appeals) and
confirmed by C.I.T. and the High Court (see 1990 : 185 ITR 230). It is possible
that, with section 80-HHB and 80-O, as they stand today, it might not make very
much difference to the assessee whether the relief is granted under the one
section or the other, as they both permit a deduction from the gross total
income, of fifty per cent, of the profits in the one case and of the qualifying
receipts in the other. However, till 1.4.1987, the relief under section 80-HHB
was 25% of the profits whereas the deduction under section 80-O was 100% of the
qualifying receipts upto assessment year 1984- 85. Thereafter the latter was
reduced to 50% only w.e.f.
1.6.1987.
This has made it very material to decide whether the assessee is entitled to
the deduction under section 80-O and the question that really arises for our
consideration is whether the relief under that section is available to the assessee.
We shall first discuss this question only the language of section 80-O without
taking into account the insertion of section 80-HHB or the complication
introduced the case by the approvals of the CBDT referred to earlier.
The
Department's case, urged with great emphasis and vehemence by Sri B.B. Ahuja,
is that a careful reading of section 80-O will show that the deduction provided
by that section is very limited in nature and not available to the assessee. He
submits, on the other hand, that this case is clearly one falling under the
terms of section 80-HHB being a case of execution of a "foreign
project" as defined in that section. We shall, however, consider the two
aspects of the argument separately for the fact that the income in question may
qualify for deduction under section 80-HHB does not necessarily exclude the
applicability of the provisions of section 80-O. It is sufficient to point out
that the language of sub-section (5) of section 80-HHB which gives precedence
to a claim under section 80-HHB over one under any other provision, itself
necessarily postulates the possibility of the whole or part of 87 the consideration
payable to an assessee for the execution of a foreign project qualifying for
deduction under section 80-HHB falling for consideration also under any other
provision as well.
Sri Ahuja
points out that Part C of Ch. VI-A of the Act Permits deductions, from the
gross total income of an assessee, of various "species" of income,
which are carefully defined, in section 80H onwards. Sections 80H to 80-JJA,
80QQ,80RR and 80S permit a deduction in respect of the "profits and
gains" or "profits" derived from various types of business,
undertakings or professions, sections 80K to 80N and 80Q deal with income by
way of "dividends" and "interest" falling under certain
categories; section 80-P, which grants a deduction to cooperative societies,
classifies the deductible income into "profits and gains" from
activities in the nature of business on the one hand and income falling under
other heads such as interest, dividends, income from house property etc. on the
other;
80QQA
refers to income derived from a profession but only in the form of
consideration for assignment or grant of copyright interests or royalties or
copyright fees; section 80R and 80RRA allow a deduction in respect of
"remuneration" :and section 80T relates to "capital gains".
In other words, the scheme of this Part of Ch. VI-A is to correlate the
deductions to specific heads of income. Section 80-HHB talks of the profits and
gains derived from a business-and the assessee here is seeking such a deduction
- but section 80-O provides for a deduction only in respect of an assessee's
receipts from a foreign Government or enterprise by way of "royalty,
commission, fees or any similar payment." Not only this; the section also
requires that the assessee must have derived the receipts falling under the
above categories in one of two ways - (i) in consideration for the use outside
India of any patent, invention, model, design, secret formula or process or
similar property, right or information concerning industrial commercial or
scientific knowledge, experience or skill made available or provided or agreed
to be made available or provided to such Government or enterprise by the assessee;
or (ii) in consideration of technical services rendered or agreed to be
rendered outside India to such Government or enterprise by the assessee.
According
to learned counsel, the receipts of the present, assessee do not fulfill these
requirements.
In
support of the contention that the claim for the assessee, on the facts, 88 is
only for a deduction from the profits and gains of a business carried on by it
and that such a claim is not referable to section 80-O at all. Sri Ahuja first
draws our attention to the treatment accorded to the receipts by the assessee
in its books of account as well as the claim made in the applications filed
before the CBDT. The balance sheet of the company for the calendar year 1982
accounts for "contract receipts" of Rs. 2,332,490,079 and "other
receipt" of Rs. 47,000,122. Deducting a total expenditure of Rs.1,717,751,494
classified under three headings Direct Contract Expenses, management expenses
and other expenditure, a "net profit" of Rs.661,738,707 is arrived
at.
While
the details of the "direct contract expenses" set out in Schedule I
include an item of "royalties" paid and the details of "other
expenditure" set out in Schedule K include an item of payment of
"technical consultation fees", there is no similar item under
contract receipts or other receipts. The assessee's balance sheet is thus one
of a company carrying on business as Engineers and Contractors and reflects
only the profits derived from such business.
It is
then pointed out that the assessee has not been able to identify the basis of
the deduction claimed by it in the application made to the C.B.D.T. In para 6
read with para 11 of the application, the assessee explains that it is claiming
exemption under section 80-O of the contract on the the total value of the
contract less the net cost of machinery, equipment and other items (on which no
profit element is involved (and, obviously, though not specifically mentioned,
all other expenses incurred on the contract). In other words, the exemption
claimed is on the contract receipts less the contract expenses : that is to
say, on the entire profits from the contract. Paras (i) and (iv) of the letter
of the assessee to the CBDT dated 4.8.81 also leave no doubt regarding this.
Para 10 of the proforma requires the assessee to give details of the receipts
under the four headings mentioned in section 80-O but the assessee side- steps
the query with a vague answer. It is, therefore, clear, says Sri Ahuja, that
this is a case in which deduction is claimed of the "profits and
gains" of a "foreign project", a claim surely falling under
section 80- HHB and totally outside the terms of section 80-O.
Sri Ahuja,
in this context, relied on the observations of this Court in Cloth Traders P.
Ltd. v. C.I.T., (1979) 118 ITR 243. There the question which this Court had to
consider was whether the deduction provided for in section 80-M of the Act was
of the gross amount of the inter- corporate dividend received by an assessee or
the net amount thereof arrived at after deducting the expenses incurred for the
earning of such income. The Court held that the deduction was available for the
gross amount of the dividend. This question does not concern us but in the
course of the discussion, the Court made the following observations on which
Sri Ahuja seeks to rely :
89
"Section 80M, sub-section (1), opens with the words "where the gross
total income of an assessee ......includes any income by way of dividends from
a domestic company" and proceeds to say that in such a case there shall be
allowed in computing the total income of the assessee a deduction "from
such income by way of dividends" of an amount equal to the whole of such
income or 60 per cent of such income, as the case may be, depending on the
nature of the domestic company from which the income by way of dividends is
received. Now, the words "such income by way of dividends" must be
referable to the income by way of dividends from a domestic company which is
included in the gross total income. The whole of such income, that is, income
by way of dividends from a domestic company or 60 per cent of such income, as
the case may be, would be deductible from the gross total income for arriving
at the total income of the assessee. The words "where the gross total
income of an assessee.....includes any income by way of dividends from a
domestic company" are intended only to provide that a particular category
of income, namely, income by way of dividends from a domestic company, should
form a component part of the gross total income. These words merely prescribe a
condition for the applicability of the section, namely, that the gross total
income must include the category of income described by the words "income
by way of dividends from a domestic company". If the gross total income
includes this particular category of income, whatever be the quantum of such
income included, the condition would be satisfied and the assessee would be
eligible for deduction of the whole or 60 per cent of "such income."
Now, if the words "where the gross total income of an assessee .......
includes any income by way of dividends from a domestic company" in the
opening part of the section refer only to the inclusion of the category of the
income denoted by the words "income by way of dividends from a domestic
company" and not to the quantum of the income so included, the words
"such income" cannot have reference to the quantum of the income
included, that is, income by way of dividends from a domestic company. The
words "such income" as a matter of plain grammar must be substituted
by the words "income by way of dividends from a domestic company" in
order to arrive at a proper construction of the section and if that is done, it
would be obvious that the deduction is to be in respect of the whole or 60 per
cent of the "income by way of 90 dividends from a domestic company"
which can only mean the full amount of dividends received from a domestic
company." Sri Ahuja is, of course, fully conscious that the decision in
Cloth Traders (supra) has since been overruled by a larger bench of the Court
in Distributors (Baroda) P. Ltd. v. Union, (1985) 155 ITR 120 but he points out
- and we agree he is right in this - that the latter decision does not affect
the weight of the above observations. We entirely agree with Sri Ahuja is that
the deduction under section 80-O is in respect of the categories of income
specifically referred to therein and this is an aspect to which we shall advert
later. But we are unable to agree with him that there is an antithesis between
the categories of income so specified and the expression 'profits and
gains". It is no doubt true that, wherever the statute refers to the
"profits and gains" of a business, it has in mind the income
chargeable under the Act under that head - head "D" specified in
section 14 of the Act - but the other categories of income referred to in the
various sections are not correlated to the headwise classification of section
14.
It is
well known that items of interest, dividends and other items of remuneration
are not always referable to any particular head. They may be assessable as
"business" income or income from other sources. In particular, the
receipts by way of royalty, fee, commissions and similar payments may be
derived in the course of a business or profession and constitute part of the
profits and gains of such business or profession. For instance, a consulting
scientist, architect or engineer might provide technical services to others and
receive what is styled as "fees" from them; the receipts will
nevertheless be assessable as part of the profits and gains from his
profession. The mere fact, therefore, that the assessee is carrying on business
as engineers and contractors and the receipts in question flow to it in the
course of its business as such will not necessarily preclude relief under
section 80-O if they can be brought within the categories of receipts mentioned
in the section. The material question, therefore, is not whether the receipts
form part of the business profits of the assessee but whether the entire
receipts, or any part of them, can be brought within the qualifying words in
section 80-O. To this basic question we shall now turn.
Sri Ahuja's
point on this aspect is two fold. He first points out that the contract does
not stipulate for any payment labelled under one of these categories. The
expressions royalty, commission and fees have well-known connotations and the
word "any similar payment", he says, has to be construed ejusdem generis
and the receipts under the contract answer none of these descriptions. We do
not think that the mere fact that the contract does not specifically assign the
nomenclature mentioned in the section to the payments made to the assessee can
be conclusive of the assessee's claim to 91 exemption. That apart, of the four
expressions referred to in the section there are referred to elsewhere in the
Act.
While
`royalty' is generally a consideration paid to the owner of a right or asset -
such as copyright patent right, mining right etc. - for the privilege of using
it for one's own purposes, the other expressions are more comprehensive.
The
expressions `royalty' and `technical fees' have been defined in section 9.
Though the definitions are only for the purposes of clauses (vi) and (vii) of
section 9(1) respectively, they may be set out here. The definitions read thus
:
"S.9(1)(vi)
- income by way of royalty payable by - Explanation 2 : For the purposes of
this clause, "royalty" means consideration (including any lumpsum
consideration but excluding any consideration which would be the income of the
recipient chargeable under the head "Capital gains") for –
(i) the
transfer of all or any rights (including the granting of a licence) in respect
of a patent, invention, model, design, secret formula or process or trade mark
or similar property;
(ii)
the imparting of any information concerning the working of, or the use of, a
patent, invention, model, design, secret, formula or process or trade mark or
similar property;
(iii) the
use of any patent, invention, model design, secret formula or process or trade
mark or similar property;
(iv) the
imparting of any information concerning technical, industrial, commercial or
scientific knowledge, experience or skill;
(v)
the transfer of all or any rights (including the granting of a licence) in
respect of any copyright, literary, artistic or scientific work including films
or video tapes for use in connection with television or tapes for use in
connection with radio broadcasting, but not including consideration for the
sale, distribution or exhibition of cinematographic films; or 92 (vi) the
rendering of any services in connection with the activities referred to in sub-
clauses (i) to (v).
Section
9 (1) (vii) - income by way of fees for technical services payable by - xxx xxxx
xxx Explanation (2) : For the purposes of this clause, "fees for technical
services" means any consideration (including any lump sum consideration)
for the rendering of any managerial, technical or consultancy services
(including the provision of services of technical or other personnel) but does
not include consideration for any construction, assembly, mining or like
project undertaken by the recipient or consideration which would be income of
the recipient chargeable under the head `Salaries'.
The
word `commission' has a somewhat different connotation and is used differently
in different contexts.
It has
been explained by this Court in Gestetner Duplicators Pvt. Ltd. v. C.I.T.,
(1979) 117 I.T.R. 1 (S.C.) in the context of the definition of `salary'.
Black's Law dictionary assigns very wide meaning to these expressions :
See,
for example, p. 614, 1369 and 1463 of the Sixth Edition (1991). But we do not
think that it is necessary to attempt any precise definition of each of these
expressions or to attempt to discern any common thread running through them so
as to restrict the meaning of the words `any similar payment'. In our opinion,
the true clue to the interpretation of this expression lies not in the
preceding three words but really in the second part of the section.
The
essence of the exemption lies, not in consigning the receipt to one of these
pigeonholes but in examining whether the receipt is a payment in consideration
of one of the two situations envisaged in the section. To illustrate : where
the assessee is the owner of a patent or invention, he may generally permit
another to make use of the patent or the invention in consideration of a
`royalty' payment. Or, again, where the assessee is in possession of technical
know-how, he may be prepared to allow another to make use thereof in
consideration of a `fee' to the assessee. He may also stipulate a consideration
in the form of a commission based on the sales of the products the other party
is able to manufacture with the aid of such invention or know-how. Again, an assessee
may have achieved some speciality and he may agree to lend his services to some
other person and stipulate a consideration therefore which may be variously
described. The nature of the asset, right, information or services which can be
brought under this provision may be varied and the considera- 93 tion
stipulated for allowing another to avail of the assess's asset, knowledge or
services can likewise assume multi-farious forms. The word `similar' connotes
that the payment made to the assessee need not be in the nature of royalty,
commission or fees only; it could be any payment of like nature i.e. made in
consideration of the use or supply of such an asset, knowledge or services in
the same manner as royalty, fees or consideration could be. We are, therefore,
of the view that any type of payment received by an assessee will qualify for
deduction under the section so long only as it is a payment made in
consideration of one of the two types of transactions referred to in the
section.
Sri Ahuja
then draws attention to the finding of the Tribunal in para 41 of its order :
"Admittedly
in the present case, there is no claim under the first part of the section and
the claim was that the assessee company was receiving payments in consideration
of technical services rendered outside India." He submits that this is a finding of fact based on an admission
which has not been specifically challenged by the assessee in its application
for reference to the High Court and that it is not open to the assessee to go
behind this position at this stage. It seems to us that there has been some
misconception on the part of the Tribunal. There are actually two limbs to the
first part of the relevant clause of the section which are clearly brought out
in clolumn 5 of the application for approval made to the Board. Col. 5(a)
refers to consideration received for the use outside India (i) of any patent,
invention, model, design, secret formula or process or similar property right
and (ii) of information concerning industrial, commercial or scientific
knowledge, experience or skill made available by the assessee. The second part
of the clause is dealt with in Col. 5(b) which refers to consideration for
technical services rendered outside India to the foreign Government or
enterprise. If, in this context, we peruse the applications for approval made
by the assessee to the Board, it will be seen that the assessee had no doubt
clearly stated that the payments received by it did not come under category (a)
(i) above referred to. It was, however, claimed that they did fall under (a)
(ii) as well as category (b). In the application, this was further elaborated.
The second limb of the first clause of the section (a) (ii) was, it was
claimed, attracted in the manner set out in Col. 8 and the second part of the
section was explained to be attracted set out against sub-para (v) of Col. 5.
The Tribunal, in the paragraph referred to by Sri Ahuja refers only to the
first limb of the first part of the section - which we have referred to as
"(a) (i)" - and has 94 overlooked the presence of the second limb
referred to by us as "(a) (ii)". Sri Ahuja may not, therefore, be
quite correct in asserting that the assessee had restricted its claim before
the Tribunal only to the ground of "technical services" rendered by
the assessee outside India to its client. The assessee's claim rested both on
the second limb of the first part as well as on the second part of the relevant
clause. The finding of the Tribunal in this regard is not one of fact based on
an admission as suggested by Sri Ahuja. The finding proceeds on an incorrect
appreciation of the contents of the assessee's application for approval.
There
is no basis to put forward a contention that, though in the application to the
Board, the assessee had claimed relief on two grounds, it had given up a part
of the claim before the Tribunal. The word "Admittedly" used by the
Tribunal in the passage relied on by Sri Ahuja does not appear to refer to any
admission over and above that contained in regard to column 5 (a)(i) of the
application for approval. The question is whether the claim has been
substantiated under either of these headings.
Sri Ahuja
vehemently argues it has not been. He submits that the assessee has neither
made any information available to the foreign client nor has it rendered any
technical services to the said client. He contends that the contract in favour
of the two members of the consortium was in the nature of a turnkey project.
This meant that the client was not interested in the details of the information
possessed or the services rendered by the contractor: all it wanted was that
the Water Supply Project, as per the detailed specifications, designs and
drawings furnished by the BWSA should be executed by the consortium, complete
in all respects, and handed over to it. Sri Ahuja points out by analysing the
provisions of the consortium agreement that the assessee was not concerned with
any part of the contract other than the "civil works". He says that
all the "Reservoir works" which involved the putting up of the
reservoir structures, the trunk pipelines and the mechanical and electrical plant
for the project was the responsibility of the SCC and that the assessee had
nothing to do but put up a few buildings and ancillary pipelines.
The assessee
was nothing more than an engineering contractor and, in constructing
pump-houses or laying sanitary fittings, he imparted no information and
rendered no technical services. Such information as it possessed in these
respects was utilised by itself and such technical services, as were rendered
by its engineers and other employees were rendered to it and not to either its
partner in the consortium or to the foreign Government.
We do
not desire to encumber this judgment with a detailed discussion of the large
number of clauses of the contract (tender) document and the consortium
agreement.
But it
seems to us that while Sri Ahuja seems to be right in saying that the assessee
was concerned only with the civil works 95 section of the project, he has over
simplified the part played by the assessee in the execution of the contract. It
is not necessary to quarrel with Sri Ahuja's description of the contract as a
"turn-key project" which, indeed, was the description given to it by
the assessee itself - in para 19 of the application to the Board and in para 2
of the letter dated 17.3.82 - or his consequent suggestion that the foreign
government was not interested in. the minute details or working of the contract
but only in the final outcome.
Still
the fact is that the contract executed by the assessee is no ordinary contract.
It may be that a good part of the contract was executed by the SCC. But this
cannot render the assessee's part insignificant. If the State enterprise itself
was a fully expert body capable of completing the entire project on its own,
there would have been no need to call for tenders from experienced consortia.
The part of the contract entrusted to the assessee was therefore no less
significant. The value of the assessee's package in the contract was about ID
153 million as against the total value of the contract estimated at ID 326
millions - more than 40 per cent. The job of the assessee involved survey, soil
investigation design, detailed drawings and construction of all civil works and
pipelines (other than trunk pipelines).
Even
these activities involve technical knowledge and expertise. It cannot therefore,
be doubted that the assessee, under the contract, had to make use, outside
India, of its industrial, commercial and scientific knowledge, experience and
skill. Sri Ahuja makes the point that, even if this be so, the assessee made
available no information regarding such expertise to the foreign Government.
There is equally no doubt that, in executing the contract the assessee has
rendered technical services.
Any
engineering contract involves technical services; more so, a contract of the
nature and magnitude involved in the present case. Here again, Sri Ahuja says,
no technical services were rendered by the assessee to the foreign Government;
the assessee only made use of the technical knowledge, experience and skill of
its own employees to perform a task undertaken by it.
We
think the approach of Sri Ahuja on this issue is narrow and unrealistic. It
would be far from accurate to say that no information of a technical nature was
imparted or made available to the foreign Government. It cannot be forgotten
that the contract was executed jointly with an enterprise that was nothing but
an instrumentality of the foreign state. The contract had to be executed in
close coordination with the SCC. Every single step in the contract was done
under the supervision of a Consortium Board and a Project Management Board on
which both the partners of the consortium were represented. It would be unpragmatic
to suggest that this close association was not aimed at enabling the foreign
state to collect and acquire such technical knowledge and know-how from the assessee
as could be reasonably acquired in the process of execution of the project. In
our view, there is force 96 in the assessee's contention that it would not be
possible to execute the contract without imparting to the foreign state and
enterprise information of the category specified in the section. The findings
of the Tribunal in this regard, which have not been challenged by the
Department, and are contained in para 42 of the order, are as follows :
"42.
We have already extracted some parts of the contract and the terms of the
agreement and from these extracts it appears that the contract was for
execution of Karkh Water Supply Scheme contract Stage 1. As already stated
above "works" has been given a defined meaning for interpreting the
contract as it means all the works to be executed in accordance with the
provision of the contract including the design, manufacture, delivery, supply,
installation, construction, setting to work, commissioning , site testing, operations
and maintenance as the case may be. Form of agreement also makes it clear that
the consideration of the payment to be made by the employer to the contractor
was for executing, completing and maintaining works in conformity in all
respect with the provisions of the contract. The general specification of the
work to be done gives the details about head-works, making of the transmission
pipelines, reservoir works, trunk- pipelines etc. The tender document itself
had given some geological hydrological and other information for assisting the
contractor at the time of tendering but this information was not guaranteed by
the employer and the contractor had to make use of and interprete the same on
his own responsibilities. The contract comprised all surveys and site
investigation and also detailed design, manufacture, supply etc. of all the
works including mechanical plant and services, pipelines and civil and building
works from the point of abstraction at the river Tigris intake to the connections of the proposed primary feeder
systems to the existing distribution networks in the various supply areas. The
surveys, planning, designing and actual construction as well as installations
were part of the whole contract and the assessee company had to perform all these
functions and after completion of the work, had to commission it and had to
operate the works for a period of three months after the issue of Certificate
of completion. The various surveys and design reports are contemplated as a
part of the contract. The contract also contemplated training the employers
personnel for the operation and maintenance of the whole of the work and had
also to conduct studies on water treatment process to optimise operations.
97
Similar objective observations regarding technical competence, expertise and
experience are also found in para 44 of the order which is extracted a little
later. In the context of these factors and findings, it is difficult to say
that no information of the type contemplated in col.
5(a)(ii)
of the application form had been made available by the assessee to the foreign
Government for use outside India. What
exactly would be the proportion of the total consideration that could
reasonably be attributed to such imparting of information would, however, be a
separate question and may have to be reasonably estimate.
But,
even assuming that there could be some difference of opinion on the above
issue, there can be no doubt at all that, under the contract, technical
services were rendered by the assessee to the foreign Government. In our
opinion, the attempt of Sri Ahuja to differentiate technical services rendered
to the assessee by its employees and technicians from technical services
rendered by the assessee to a foreign constituent and urge that the latter
alone can qualify for relief under section 80-O on the ground that the project
in question was a turnkey project which has succeeded before the High Court,
proceeds on an unduly narrow interpretation of the section. In our view, the assessee
was undoubtedly rendering services to the foreign Government by executing the
water supply project. These services were no doubt technical services, as they
required specialised knowledge experience and skill for their proper execution.
The argument seems to be that the services in the present case will not be
covered by the section because there was no privity of contract between the
employees of the assessee who contributed their technical skill and the foreign
Government. We think this argument cannot be accepted. The assessee is a
company and any technical services rendered by it can only be through the
medium of its employees, skilled and unskilled, and even if the contract had
not related to a turnkey project, the assessee's employees would have been
answerable only to the assessee and none else though, perhaps, in such an
event, the other party to the contract may have retained a larger degree of
control and supervision in the execution of the contract. Even where the
contractor is an individual or firm and not a company, a contract of this
magnitude can be executed only through the medium of employees or other
personnel engaged by the assessee. The facts that, physically speaking, it is
only such employees that render services and that, so far as they are concerned,
they render services only to their employer and not to the other contracting
party are in no way inconsistent with, or repugnant to, the notion that, so far
as the foreign Government is concerned, it looks only to the assessee for
rendering of the technical services under the contract. The High Court has
pointed out that a person who manufactures a television set ordered by another
cannot be said to render technical services 98 to the latter. In our view, that
analogy is not apposite in the context of a contract of the nature, magnitude
and specialisation with which we are concerned. Where a person employs an
architect or an engineer to construct a house or some other complicated type of
structure such as a theatre, scientific laboratory or the like for him, it will
not be incorrect to say that the engineer is, in putting up the structure,
rendering him technical services even though the actual construction and even
the design thereof may be done by staff and labour employed by the engineer or
architect.
Where
a person consults a lawyer and seeks an opinion from him on some issue, the
advice provided by the lawyer will be a piece of technical service provided by
him even though he may have got the opinion drafted by a junior of his or
procured from another expert in the particular branch of the law. Shri Ahuja
tried to negative this line of thinking by urging that "professional
services" have been brought within the scope of section 80-O only by an
amendment by the Finance (No. 2) Act, 1991 and that, too, w.e.f. 1-4-1992 which
is proposing to substitute the word "technical or professional
services" in place of the word "technical services" now used in
the section. It seems to us that this amendment may be only of a clarificatory
nature. The expression "technical services" has a very broad
connotation and it has been elsewhere in the statute also so widely as to
comprehend professional services : vide section 9(1)(vii), referred to earlier.
But we need not digress on this aspect for two reasons. Firstly, whatever may
be the position regarding other "professional services", there can
hardly be any doubt that services involving specialised knowledge experience
and skill in the field of constructional operations are "technical
services". The Board's guidelines, to which reference is made later,
specifically say so. Secondly, the question whether "professional
services" would be "technical services" or not has no impact on
the point we are trying to make viz. that in order to say that a person is
rendering such services to another, it is not necessary that the services
should be rendered by the former personally and not through the medium of
others. For the reasons discussed above, we have come to the conclusion that,
under the contracts in question, the assessee had made available technical
information to the foreign Government for use outside India and had also rendered technical
services to the foreign Government outside India.
All
the same, contends Sri Ahuja, the receipts of the assessee under the contract
are just the profits of its business and cannot be described as received in
consideration of such information or services as discussed above. If what Sri Ahuja
means is that no part of the payments made to the consortium is specially
described by the contract, or even the consortium agreement, as made in
consideration of such information or services he is no doubt correct and the
consequence of such non-specification has to be 99 considered. But Sri Ahuja,
like the Tribunal, seems to go even further. He says that the contract has been
found to be an integral, indivisible contract and that it is not permissible
for the assessee to dissect the consideration as attributable to its several
ingredients and apportion a part of the consideration as being payment for information
made available to, or technical services rendered to, the foreign Government.
The Tribunal observed :
"43.
Schedule 11 to the contract refers to the consideration of the work. Though the
lumpsum price is indicated for different works but the overall consideration is
for the work as a whole and it is made clear even before the tenders were given
that the contract could not be bifurcated and it could not be given in parts.
Separate payments are not contemplated for the surveys done, designs made and the
other studies carried on they are made an integral part of the work. The assessee
company had to give proposals for execution of the works and had to submit a
preliminary work programme showing the starting and completion dates for each
complex and major installation including construction of the preliminary works,
submission of functional plants and general designs and periods for
manufacture, delivery, erection etc., of all works required including plant and
civil works pipelines and services. The price schedules were deemed to cover
all expenses, costs risks and all material necessary for the contractor to
execute, operate and maintain the works.
44.
The perusal of the contract and its various parts very clearly shows that is
was contract for commissioning of a turn-key project for the Karkh Water Supply
Scheme. It is true that for executing this work, it was absolutely essential
for the contractor to have necessary technical competence and they had to use
highly experience technical personnel for this purpose. From the very nature of
the work, it is clear that the execution of the project involved a high degree
of technical competence as well as expertise and experience.
However,
reading the contract as a whole, the intention of the parties was only to get
the whole project being made available on a turn-key basis according to the
general specifications laid down by the Baghdad authorities. It is not possible in this contract either to separate one
part from the other or to bifurcate a part of consideration for any particular
service. We have already considered the various case laws including certain
decisions the Hon'ble Supreme Court in the case of Gannon Donkerley & Co.
and Ram Singh Engineering 100 Works (supra) which throw light on interpretation
on such contracts. Various High Courts have also considered similar questions
throwing light on the nature of contracts. Applying these principles, it
appears that this is an indivisible and integrated contract for the whole work
and has to be treated as such." In our view, neither of the propositions
contended for by Sri Ahuja can be accepted as correct. So far as the first
proposition is concerned, it is sufficient for us to point out that it is a
well-settled principle that exigibility of an item to tax or tax deduction can
hardly be made to depend on the label given to it by the parties. An assessee
cannot claim deduction under section 80-O in respect of certain receipts merely
on the basis that they are described as royalty, fee or commission in the contract
between the parties. By the same token, the absence of a specific label cannot
be destructive of the right of an assessee to claim a deduction, if, in fact,
the consideration for the receipts can be attributed to the sources indicated
in the section. The second proposition is equally untenable. Contracts of the
type envisaged by section 80-O are usually very complex ones and cover a
multitude of obligations and responsibilities. It is not always possible or
worthwhile for the parties to dissect the consideration and apportion it to the
various ingredients or elements comprised in the contract. The cases referred
to by the Tribunal and Sri Ahuja as to the indivisibility of a contract arose
in an entirely different context. For purposes of income-tax, a principle of
apportionment has always been applied in different contexts. Consolidated
receipts and expenses have always been considered apportionable in the contexts
:
(a) of
the capital and revenue constituents comprised in them;
(b) portions
of expenditure attributable to business and non-business purposes;
(c) of
places of accrual or arisal; and
(d) of
agricultural and non-agricultural elements in such receipts or payments.
This
is a point that does not need much elaboration and it is sufficient to refer to
decided cases cited under the passages on this topic at pp. 47, 137, 264, 621
and 677 of Kanga & Palkhivala on the Law and Practice of Income-tax (Vol. I,
Eigth Edition). We are, therefore, of opinion that if, as we have held, the
contracts in the present case oblige the assessee to make available information
and render services to the foreign Government of the nature outlined in section
80-O, it is the duty of the Revenue and the right of the assessee to see that
the consideration paid under the contract legitimately attributable to such
information and services is apportioned and the assessee given the benefit of
the deduction available under the section to the extent of such consideration.
So
far, we have looked at the language of section 80-O in isolation. The question
to be considered next is whether the introduction of section 80-HHB 101 has
made a difference. On behalf of the Revenue, it is urged that the facts of the
present case squarely fall under the scope of this new Section. The assessee,
it is said, has derived profits and gains from its business of execution of a
foreign project, as defined in clauses (b)(i) and (ii) of sub-section (2) of
the section. Whether the contract is viewed as one directly entered into by the
assessee with the foreign Government or as involving the execution of work
undertaken by it as part of a foreign project undertaken in pursuance of a
contract entered into by the consortium with the foreign Government, the
profits and gains qualify for deduction under section 80-HHB, subject to the
conditions and to the extent, outlined in the section. Even assuming that the
whole, or at least a part, of the consideration payable to the assessee for the
execution of a foreign project or work in connection therewith can be said also
to fall under the terms of section 80-O, the terms of sub-section (5) of
section 80-HHB make it clear that the assessee would be eligible for deduction
under section 80-HHB only and cannot claim deduction under section 80-O in
respect of any part of the consideration.
Sri Nariman,
on behalf of the assessee, seeks to repel this contention in several ways. He
submitted, firstly, that since the insertion of section 80-HHB has not resulted
in the deletion of section 80-O, the two sections should be read harmoniously
and given effect to together. This, he says, can be done by restricting the
operation of section 80-HHB to contracts entered into on or after 1-4-1983 on
which date that section came into force and so as not to affect contracts
entered into before that date and approved by the Board. In this context, it is
pointed out that section 80-O envisages grant of approval to a contract and
once such approval is granted (on whatever date it be) the approval should enure
for the entire period of contract and cannot be restricted to any particular
assessment year or years. In support of this contention, the decision in C.I.T.
v. Indian Institute of Public Opinion, (1982) 134 I.T.R. 2 (Delhi) is relied upon. It is urged that,
once the approval is granted to a contract, Section 80-O becomes operative in
respect of all sums received under the contract of the nature specified
therein. If the applicability of section 80-HHB is thus restricted, it is
submitted, the terms of that section, including sub-section (5) thereof;
cannot
stand in the way of the relief available to the assessee under section 80-O.
Secondly, he contends that the definition of "foreign project" in
section 80-HHB (2)(b) is a restrictive one; it covers only the construction of
the nature specified in sub-clause (i) or the assembly and installation of the
nature specified in sub-clause (ii), there being no other prescribed work in
terms of sub-clause (iii) and it is only the consideration received for the
carrying out of these two activities that is excluded from the purview of
relief under other sections under Heading `C' of Ch. VI-A. In other words, it
is said, section 80-HHB applies only to con- 102 struction/installation
activity simpliciter and not a "composite" activity. It is argued
that where, as in the present case, the contract envisages, in addition to
construction of buildings or other structures and installation of machinery or
plant outside India, some further acts to be done by the assessee-such as
making available information on rendering of services to the foreign Government
or enterprise - the consideration attributable to such action will not forfeit
the deduction otherwise available under section 80-O. Some significance is
sought to be attached to the use in sub-section (5) of the words
"Notwithstanding anything contained in any other provision under this
Chapter" and not "Notwithstanding anything done or any approval
granted under any other provision" as also the use of the word "shall
not qualify" at the end of the sub-section. It is argued that once
approval is granted under section 80-O, the receipts have already qualified for
deduction under that section and section 80-HHB (5) does not operate after that
stage. A reference is also made to the different language used in section
80-HHA(6) which specifically excludes relief under section 80 I and J and to
the language used in section 80-MM which specifically excludes section 80-O.
Thirdly, it is submitted that, if the Board, after considering the arguments as
to applicability of section 80-HHB put forward by the assessee, accepted this
as a plausible view of the relative area of operation of the two provisions,
and extended the approval to assessment year 1983-84 onward as well, it could
not be said to have exceeded its jurisdiction and it is not open to the Revenue
to ignore the order of approval merely for the reason that section 80-HHB has
been introduced into the statute book.
The
connection of Sri Nariman that, even after the insertion of section 80-HHB,
there is room for applicabilty of section 80-O in relation to a contract of
this type which is not a construction/installation contract simpliciter appears
attractive but we do not think section 80-HHB should be interpreted in such a
narrow or pedantic fashion. The section provides for an exemption in respect of
profits from a "foreign project" undertaken outside India in the
course of business. The expressions "business of execution of a foreign
project" or work forming part of it or the `profits derived' from the
business, take in all aspects of a business involving the activities referred
to in sub- section (2)(b) of section 80-HHB together with all activities,
commitments and obligations ancillary and incidental thereto and the profits
flowing therefrom. The definition cannot be restricted to the mere physical
activity or putting up the superstructure, machinery or plant but should be
understood to take within its fold all utilisation of technical knowledge or
rendering of technical services necessary to bring about the construction,
assembly and installation. However, we need not theoretically eliminate all
possibility of a contract involving independent elements calling for
consideration both under 103 section 80-HHB and section 80-O. It is perhaps
possible to envisage cases where, While undertaking a foreign project, separate
contracts are entered into forming two different sets of activities involved
viz. (i) construction of works and assembly or installation of plant and
machinery and (ii) the transfer of rights know-how, the impartation of
technical knowledge or information and the rendering of technical services and
providing separate consideration under each heading. It is perhaps possible to
say in such cases that there are two contracts in respect of a foreign project,
one of which will fall under section 80-HHB and another under section 80-O. Or
it may be that even though there is a single contract, it separately identifies
the two sets of activities and provides separate consideration for each. In
such a case also, it is perhaps, possible to say that the consideration for the
foreign project does not comprise in part or in whole of consideration that
would fall under section 80-O. But where the contract is for a single
indivisible consideration for the execution of a foreign project and does not
spell out the imparting of information or the technical services and any
consideration therefor, it is difficult to segregate two parts of such a
contract, artifically apportion the consideration under two headings referred
to above and then apportion the relief under section 80-HHB and section 80-O.
This is particularly so in the context of the fact that in the particular case,
as has been pointed out earlier the impartation of information was only
indirect consisting of what the foreign enterprise of Government could gather
from the manner of execution of the contract by the assessee and the technical
services rendered to the non-resident principal consisted only of the execution
of the project for it by the assessee.
In
other words, this is a case where the execution of the foreign project, in
itself, comprises the elements referred to in section 80-O. There is one
single, integral, indivisible contract for executing a foreign project and the
entire consideration is attributable to such execution.
Sri Nariman
drew our attention to columns 27 and 28 in From 10F which read thus :
"27.
Whether any part of the payment is derived from, - (a) the execution of a
foreign project undertaken by the applicant in pursuance of the agreement under
consideration, or (b) the execution of any work undertaken by the applicant and
forming part of a foreign project undertaken by any other person in pursuance
of a contract entered into by such other person with a foreign Government or
any statutory or other public authority or agency in a foreign State or a
foreign enterprise.
104
28.
With reference to 27(b) above, - (a) furnish the date of the contract entered
into by the other person with the foreign Government or enterprise for the
execution of the foreign project, (b) whether all the services were rendered by
the applicant - (i) before the signing of such contract; or (ii) after signing
of contract." He sought to contend on the strength of these columns that a
part only of the payment derived from a contract submitted for approval under
section 80-O may be referable to section 80-HHB leaving a balance, at least,
eligible for relief under section 80-O. This is not the purport of this para.
On the other hand it seems to be clearly intended to ensure while granting
approval under section 80-O in pursuance of the application that section
80-HHB(5) is given effect to and no part of the payment derived from the
execution of such a project is allowed to qualify under section 80-O.
Sri Ahuja
sought to make a further point that even if the assessee's case falls under
section 80-O, assessee will be entitled to relief not on the entire profits
derived by the assessee but only to that portion of the receipts as can be
ascribed the character in section 80-O. He suggested that it may actually be
more beneficial to the assessee to claim relief for 25% of that whole under
section 80-HHB rather than claim 100% of say 10% attributable to section 80-O.
There
is, of course, a fallacy in this argument. For the assessee's case is that the
contract falls either wholly under section 80-O or partly under section 80-HHB
and partly section 80-O. Thus, if only 10% of the receipts are attributable to
section 80-O, the assessee would be entitled to relief of 25% of the 90% under
section 80-HHB and the whole of the 10% under section 80-O in other words a
relief of 323-1/2% (which is more than 25%) of the whole. But, for reasons, we
have already set down this is a case in which the impartation of information
and provision of technical services arise directly from the execution of the
project and nothing else. This being so there is a complete identity of the
matters governed by section 80-HHB and section 80-O and so the assessee will be
entitled to only and not both the reliefs.
The assessee
has, naturally, placed considerable reliance on the approval granted by the
Board under section 80-O and, in particular, on the 105 Clarification issued by
the Board on 31.7.85 after the assessee's representation, by deleting the
reference to section 80-HHB. The Department has sought to retaliate by taking
up the stand that the contracts in the present case do not at all fall under
section 80-O and that the Board erred altogether in granting such approval. The
Tribunal accepted a suggestion put forward on behalf of the Department that the
clarification was the result of some confusion and purported to obtain a
further clarification from the Board in a manner that has attracted vehement
complaint and criticism from the assessee. We do not think it is necessary for
us to enter into this realm of debate for, apart from the doubtful
sustainability of a collateral attack by the Department on an approval granted
by the highest administrative authority under the Act, we have endeavoured to
point out that the Board was fully justified in considering the receipts of the
assessee as falling under section 80-O and in granting approval to the
contract. We shall also proceed on the footing that the assessee is also right
in saying that the Board had, after considering its representations, accepted
the position that the approval under section 80-O would ensure also for the
assessment year 1983-84 onwards. In fact, we think that, irrespective of the
Board's clarification of 1985, the correct position is that, once a contract
stands approved under section 80-O in relation to the first assessment year in
relation to which the approval is sought, the approval ensures for the entire
duration of the contract. This is the principle enunciated in C.I.T. v.
Institute of Public Opinion, (1982) 134 I.T.R.
23
(Del.) the correctness of which cannot be doubted and is, indeed, accepted by
both counsel before us. Section 80-O does not envisage an application for
approval of the contract every assessment year or the limitation of the
approval granted by the Board to any particular assessment year. The Board is
approving of a contract having regard to the nature of the receipts flowing therefrom
and once this approval is granted, the assessee is entitled to seek a deduction
under section 80-O in respect of all the receipts under the contract the
consideration for which is traceable to the three ingredients discussed earlier
irrespective of the assessment year in which the receipts fall for assessment.
The Board's approval of the contract - in 1983 as well as in 1985 - has no
doubt this effect. But this is not the same thing as saying that relief under
section 80-O would be available despite section 80-HHB. It seems to us that the
Board's clarification of 31.7.1985 (which merely withdraws the reference to
section 80-HHB and extends the approval beyond 1982-83) cannot be read as
involving a further decision that the assessee should be granted relief under
section 80-O contrary to the terms of section 80-HHB.
Section
80-O only empowers the Board to approve of a contract on being satisfied that
it gives rise to receipts qualifying for deduction under section 80-O and
nothing more. In fact the various terms and conditions of the Board's letter of
approval (in relation to which arguments have been ad- 106 dressed before us)
are totally redundant and unnecessary.
All
that the Board has to do is to approve of an agreement for the purposes of
section 80-O. It has nothing more to do.
Its
approval cannot be tentative or provisional or qualified. It cannot be hedged
in with conditions and restrictions of the nature set out in the Board's
letter. It cannot limit the relief to certain assessment years only; it cannot
restrict or enlarge the scope of the relief that can be granted under the section.
The assessment years for which relief is available, the extent of the receipts
that qualify for deduction and all other incidents flow from the language of
the section. The position therefore is that the Board's approval of the
agreements in the present case, originally accorded legitimately and properly,
as pointed out by us, in respect of assessment years earlier to 1983-84 will
enable the assessee to claim like relief under section 80-O for all subsequent
years too. But, after the insertion of S. 80-HHB, section 80-O the matter of
receipts governed both by section 80-HHB, in the former and not the latter will
prevail. We have therefore come to the conclusion that the 31.7.85 amendment of
the Board's approval cannot help the assessee to overcome the mandate of
section 80-HHB(5). The Board, by its 31.7.1985 letter, could not have intended
to say this and, if it did, it acted outside the jurisdiction conferred on it
by the statute. While the Board has every right to declare that section
80-applies in respect of the receipts under a contract approved by it, it has
no statutory or other right to supersede or limit the clear terms of section
80-HHB.We find ourselves unable to accede to the proposition of Sri Nariman
that the scope of S. 80-HHB should be excluded from application to contracts
approved prior to 1.4.1983. Indeed, a difficulty of this type could arise even
in respect of a contract entered into after 1.4.1983. Since section 80-O,
continues to be in the statute book even after 1.4.1983, an application may be
made and a contract approved under that section. In doing this the Board may
not have, and certainly need not have, considered the provisions of section
80-HHB. But, despite such approval, the receipts under the contract cannot
qualify for relief under section 80-O if the assessing officer comes to the
conclusion that the case falls under section 80-HHB. The legislature has
clearly envisaged the possibility of the same receipts qualifying for deduction
under section 80-HHB as well as under any other provision of the Act and has
specifically provided that, in such a case, the terms of section 80-HHB will
prevail over the provisions of such other provision.
Sri Ahuja
invited our attention to the fact that subsection (5) was not part of section
80-HHB at the stage of the Finance Bill but was inserted during the passage of
the Bill in Parliament. The Finance Minister explained the purpose in his
budget speech. He said :
"Indian
companies and resident non-corporate tax payers are entitled under the Bill to
an exemption of 25 per cent of the 107 profits desired by them from the
execution of foreign contracts undertaken by them. Some doubts have been raised
that income derived from such foreign projects may also be eligible for
exemption under section 80-O of the Income-tax Act. I propose to make a
provision to clarify that no part of the consideration received by a person for
the execution of the foreign project or the income comprised in such
consideration shall qualify for deduction under any other provision in the
Income- tax Act.
The
statutory interdict thus inserted cannot be frustrated by the terms of an
approval of the Board under section 80-O. Such approval, at its best, cannot
overreach, the limitations imposed on the relief available under that section
as a consequence of section 80-HHB(5).
There
was a good deal of discussion before us as to the scope and effect of the
approval granted by the Board to the terms of a contract under section 80-O.
Sri Ahuja would have us hold that the approval of the Board has significance
only in that, without such approval, the assessee's claim for relief under
section 80-O could not all be entertained. It only opens the gate to enable the
assessee to enter and seek a deduction under the section. It is not conclusive
on any other aspect of section 80-O, certainly not on the merits of the assessee's
claim. Despite the approval, the Income-tax Officer cannot be absolved of his
functions and responsibility of deciding whether the any part of the assessee's
receipts fulfills the characteristics prescribed for deduction under the
section and, if so, to what extent the assessee is entitled to get the
deduction in accordance with and subject to the provisions of the section.
According to counsel, the Board is not competent to decide these issues in the
process of granting approval to the agreement. He point out that, in the
instant case, the assessee has not identified the receipts or any parts thereof
as having the characteristics enumerated in the section. Nevertheless the assessee
purported to claim that the entirety of such unidentified receipts would be the
value of the technical information and services to be imparted or rendered
under the contract (vide col. 6 of the application), eligible for relief under
section 80-O. In order, however, not to give an impression that exemption was
sought for the entire profits, the assessee purported to exclude from the claim
of exemption the net cost of certain machinery, equipment and other items
allegedly supplied to the foreign Government under the contract on a no-profit
basis. Sri Ahuja says, the calculations of the assessee are incorrect in
several respects.
These
errors apart, the consideration for services plus profits under the entire
contract was estimated at 69. 893 million ID at the time of filing the
application for approval as per a break-up chart placed on record. Of this the
figure of profits 108 was estimated at 25.49 million IDS or Rs. 68 crores only.
As against this, the assessment order shows that the relief claimed under
section 80-O for the assessment year 1983-84 alone was to the tune of Rs. 77.84
crores in respect of the Kirkh contract. He also points out that the aggregate
net profits shown by the assessee from this contract for the assessment years
1982-83 to 1989-90 were Rs. 165 crores, almost 50% of the total receipts from
the contract. Sri Ahuja says, therefore, the application for approval was based
on wild estimates made before the contract began to be worked in right earnest
and the Board could certainly have had no possible material for accepting the
basis of claim for exemption set out in col. 6 as correct. It would, therefore,
Sri Ahuja urges, be totally untenable to interpret the Board's approval as a
decision on the merits of the assessee's claim putting the seal of finality as
to the basis or quantum of the relief to be granted to the assessee. That is
the exclusive domain of the assessing officer which the Board has no business
to encroach upon.
On the
other hand, Sri Nariman contended that it would be preposterous to attribute
such an insignificant role to the Board. The Board is the appex administrative
authority under the Act and the responsibility of approving the contract was
entrusted to such a high authority for weighty reasons with the clear intention
that, once the contract is approved by the Board, the assessee should be
entitled to exemption subject only to the arithmetical computations being left
to be done by the assessing officer. He points out that the Board had
prescribed an elaborate and detailed proforma on which the application for
approval had to be made, some portions of which have been extracted earlier in
this judgment. It requires the assessee to give full details of the contract
(col. 2 to 4, 3 to 19) explain how the receipts under contract fulfill each of
the requirements of the section (col. 5 to 9), specify the nature and quantum
of the exemption claimed (col. 10 and 11) and indicate the terms and mode of
payment (col. 12). Elaborate guidelines were drawn up and publicised by Board's
circular no. 187 dated 23.12.75, (See (1976) 102 I.T.R. St. 83). These
guidelines, read with the proforma, clearly envisage a vital role to the Board
to analyse the terms of the contract and nature of the assessee's receipts
carefully and ensure that they qualify for relief under the section. No doubt,
the approval is granted on the basis of the terms of the contact and the actual
quantification of the relief available under the contract for any particular
assessment year has to be worked out by the assessing officer under the
contract. It is also possible that the Board's approval is obtained by fraud or
misrepresentation and the guidelines provide for revocation of the approval in
case some such situation is found to exist. But, so long as the approval lasts,
the assessing officer is bound and cannot challenge the correctness of the
approval or take up the position that the 109 contract itself falls outside the
purview of the section.
Apart
from this general position, Sri Nariman points out that the approval of the
Board had been accorded in this case after full and detailed discussions,
correspondence and hearings stretching from 3.3.1981 - the date on which the
application was made to 28.10.1983 when approval was given. These show that
each and every aspect of the contract was examined. The assessee was questioned
as to how it was claiming that no profit was involved in the sale of materials.
Details regarding technical personnel engaged by the assessee and the extent of
fees attributable to their recruitment in India were called for. A query was raised as to how the contract can be said
to involve the rendering of services to a foreign enterprise within the meaning
of section 80-O. The objection that the services under the contract were
rendered to self and not to a third party was also raised. These objection were
duly answered and it was only after applying its mind and deliberating over the
matter that Board approved the contract. If there had been any
misrepresentation of facts on the basis of which the approval had been secured,
it was open to the Board to have revoked the approval but this had not been
done till today.
In the
circumstances, Sri Nariman contends that the Department should not be allowed
to take up the stand that the approval of the Board had no value at all and
could be completely ignored by the assessing officer because, In his opinion,
it did not fulfill the requirements of section 80- O.
we
have considered the contentions urged on behalf of both parties. Since we have
already expressed our conclusion that the contract in the present case does
come within the fold of section 80-O and that the Board acted rightly in
granting approval to the contract, it may not be quite necessary for us to
express any opinion on this issue.
However,
since the matter has been fully debated before us, and is of some general
importance we may indicate our views on this issue.
At the
outset, it may be pointed out that, earlier section 80-O (and certain other
sections in the statute) had provided for the approval of the Central
Government as a condition precedent for the grant of relief or concessions
there under, where the relief or concession was in relation to a contract with
a foreign party. At that stage, it was possible to take a view that the
provision was intended only as a safeguard to monitor contracts with foreigners
as such contracts may involve several aspects of policy, finance, foreign
exchange and other elements vital to the country's interests. But this power of
approval has since been shifted to the Board which is the highest
administrative authority under the Act. This is a very significant change. No
doubt, even after the change, the approval acts as a safety valve and enables
the Government to decline its approval for various reasons the effect of 110
which, inter alia, would be that no relief be sought for under the relevant
provisions. But there is a change in the content and purpose of the approval.
The Board has to grant the approval "in this behalf" that is for the
purposes of this section. It is true that, even earlier, the approval of the
Central Government was to be granted "in this behalf" but when the
power is vested in the apex authority under the Income-tax Act, it is clear
that the scope of the Board's powers is more extensive and should bear upon the
terms of the agreement vis-a-vis the claim for relief under the section in
relation to which relief is sought. It is also interesting to see that this
power of approval has since been de-centralised and vested in the Director-General
and Chief Commissioner which are authorities at a lower rung than the Board but
at a higher rung than the assessing officer. While, at one time, the Income-tax
Officer was described as the king-pin of the tax administration and was the
sole repository of all functions pertaining to assessment, the recent tendency
has been to vest powers of assessment even in officers above the rank of the
Income- tax officer either because of the amount involved or for other reason.
Here again, there is good reason, over and above the general need to have a
surveillance over foreign contracts, why the power to grant approval is vested
in a higher authority in the Income-tax hierarchy itself. The first is that the
Board is considered better equipped, both on considerations of time as well as
the technical knowledge needed to examine the ramifications of technical
international contracts and decide how far the contract in question and the
receipts thereunder are of the nature intended to be covered by the exemption clause;
The second is that, with such a provision, the applicant is sure to take steps
to obtain necessary approval at a stage earlier to the implementation of the
contract and it will be possible to require the party, if modification or
changes are called for, to modify the contract even at the outset so as to
bring it within the range of contracts for which relief is intended. The third
and perhaps and most important reason is that such contracts are generally
likely to be long-term contracts and it is of the essence for an applicant to
know well beforehand where he stands in the matter of tax exemption and whether
he can proceed to execute the contract on the basis that he would be eligible
for the relief he feels he is eligible for. It would result in chaos if an assessee's
contracts were left to be scrutinised at the time of assessment several years
after they have been implemented and the availability of an exemption provision
which the assessee was banking upon and on the basis of which he had entered into
the contract, denied to him for one reason or another whereas, duly forewarned
by a disapproval, he could have backed out of the contract, if necessary, and
saved his skin. In this situation, we find it difficult to accept the plea of
Sri Ahuja that the approval is nothing but a measure for screening the cases
which an assessing officer may have to consider.
111 We
are also reinforced in this conclusion by the manner in which the provision has
been understood and implemented by the Board since its introduction. The Board
had issued circulars earlier when the relief had been introduced originally by
the insertion of section 85-C and, again, later in 1972. But, after the power
of approval was vested in the Board, elaborate guidelines were drawn up as pointed
out by Sri Nariman. These guidelines clearly envisage a detailed examination,
by the Board, of the terms of the contract submitted to it for scrutiny from
all angles relevant for a decision as to eligibility for exemption under
section 80-O. The proforma calls for details of the analysis of the receipts
under the contract. An examination whether the receipts can be said to be by
way of royalty, commission, fee or similar payment is undertaken. The receipts
are analysed under the three headings, as earlier referred to us, set out in paras
5(a)(i), 5(a)(ii) and 5(b) of the proforma. Even the situation where the
contract is a composite one has been dealt with by the guidelines and this may
be referred to here in a little greater detail. In the circular of 23.12.75
(supra), the Board decided that it would decline approval in cases where the
consolidated consideration could not be legitimately attributed to know- how,
services etc. envisaged in the section but that in cases where such
apportionment was considered permissible, it would grant approval to the
agreement and have the quantification of the exemption to be decided by the
assessing officer. It said :
"(ix)
In the case of a composite agreement specifying a consolidated amount as
consideration for purposes which include matters outside the scope of section
80-O (e.g. use of trade marks, supply of equipment etc.) the amount of the
consideration relating to the provision of technical know-how or technical
services, etc.
qualifying
for purposes of section 80-O will have to be determined by the Income-tax
Officer separately at the time of assessment after due appreciation of the
relevant facts. Where, however, in the opinion of the Board, it will not be
possible to properly ascertain and determine the amount of the consideration
relatable to the provisions of the know-how or the technical services, etc.,
qualifying of section 80-O, the Board may not approve such an agreement for the
purposes of section 80-O of the Act." It had also taken the view that a
consideration for the use of the assessee's trade-mark would be outside the
purview of section 80-O. Subsequently, however, the Board changed its line of
approach on these two issues . In its circular No. 253 dated 30-4-1979, the Board clarified :
"Attention
is invited to the Board's Circular No. 187 (F. No. 473/ 112 15/73-FTD) dated 23rd December, 1975 on the above subject laying down
the guidelines for the grant of approval under section 80-O. The Board has had
occasion to re-examine the aforesaid guidelines and it has been decided to
modify the guidelines to the extent indicated below :- XXX XXX XXX (ii) In para
(ix) of the said circular, it was mentioned that consideration for use of trade
mark would be outside the scope of section 80-O. It has now been decided that
payment made for the use of trade-marks are of the nature of royalty, and
therefore, fall within the scope of section 80-O.
(iii)
It was also stated in para 3(ix) of the circular dated 23.12.1975 that in the
case of a composite agreement which specified a consolidated amount as
consideration for purposes which included matters outside the scope of section
80-O, the Board may not approve such an agreement for the purposes of section
80-O of the Act if it' was not possible to properly ascertain and determine the
amount of the consideration relatable to the provision of the know-how or
technical services etc., qualifying for section 80-O. Thus the benefits of
section 80-O could be denied to the entire amount of royalty, commission, fees
etc., receivable under such an agreement. It has since been decided that in
such cases approval would be granted by the Board subject to a suitable
disallowance for the non-qualifying services after taking into consideration
the totality of the agreement so that balance of the royalty'fees etc.
which
is for the services covered by section 80-O can be exempted." It is thus
clear that the Board has chalked out for itself, we think quite legitimately
and properly, a very detailed and dominant rule as to the availability of
exemptions under section 80-O. The guidelines are of general nature, fully
sanctioned by the provisions of section 119(1) of the Act and, being
instructions enuring to the benefit of the assessee, cannot be gone back upon
by the Departmental Officer subordinate to the Board, particularly in a case
where no steps have been taken - or even suggested as necessary to be taken -
to cancel or revoke the approval already accorded. This is, indeed, a
proposition well- settled by the series of judicial decisions starting from Navnitlal
Javeri's case (1955) 56 I.T.R. 198 S.C. In fact also, the Board has 113
followed only its own guidelines. Elaborate reference to the correspondence,
discussions and hearing is unnecessary. The Board had reached its decision to
approve the contract and the basis of claim for exemption after full
consideration and analysis. We may, in this context, also point out that while
the Board, in the present case, simply approved of some of the contracts on the
basis of the application filed, it has, in the case of some other contracts
modified that basis also. For instance, in regard to the Wadi Khan and Abu Sukhair
projects, the letter of approval states that approval is granted subject to the
condition or clarification that only the profits relating to rendering of
technical services will qualify for the benefit of section 80-O of the I.T. Act
and not the profits relating to the supply of material/equipment. These
guidelines have also since attained statutory recognition as the proforma
earlier prescribed by the Board has virtually been incorporated in Rule 11E and
Form prescribed thereunder.
In
fact Sri Nariman wants to utilise certain columns in the statutory form to
support his contentions that an approval under section 80-O is effective even
after section 80-HHB was introduced but to this argument, we shall advert a
little later. We have, in view of the above discussion, no doubt at all that,
while granting the approval under section 80-O, the Board has not only the
jurisdiction but also the responsibility of examining the agreement submitted
for approval from all angles relevant to the deduction provided for under
section 80-O and that it is not competent to the Department to question the
maintainability of the claim for deduction under section 80-O of the aspects
gone into and decided upon by the Board.
We
should, however, make it clear that our conclusion does not mean the
deprivation of all functions of the assessing officer while making the
assessment on the applicant. The Officer has to satisfy himself (i) that the
amounts in respect of which the relief is claimed are amounts arrived at in
accordance with the formula, principle or basis explained in the assessee's
application and approved by the Board; (ii) that the deduction claimed in the
relevant assessment year relates to the items and is referable to the basis on
which application for exemption was asked for and granted by the Board; (iii)
that the receipts (before the 1975 amendment) were duly certified by an
accountant or that, thereafter, the amounts have been received in or brought
into India in convertible foreign exchange within the specified period. The
second of these functions is, particularly, important as the approval for
exemption granted in principle has to be translated into concrete figures for
the purposes of each assessment.
Neither
the introduction of the words "in accordance with and subject to the
provisions of this sections" nor the various "conditions"
outlined in the letter of approval add anything to or detract anything from the
scope of the approval 114 As already mentioned, Sri Nariman also contended
that, even after the insertion of S-HHB, the assessee would be entitled to
claim the deduction under section 80-O in view of the Board's amendment to the
letter of approval that the approval will be operative for assessment year
1982-83 onwards, rescinding the qualification in the earlier letter that the
provisions of S. 80-HHB will apply for assessment year 1983-84 onwards. It is
true that the earlier restriction was lifted by the Board after considering the
contentions raised by the assessee in its letter of 2-12- 1983 :
(a) that
the two section operate in different fields for exemption;
(b) that
the approval once granted under section 80-O, the exemption to which the assessee
became eligible should ensure for the directions for the entire contract; and
(c) that s. 80-HHB should be restricted to agreements entered into before
1-4-1983.
But we
are unable to give effect to the Board's decision of 31-7-1985 in the same way
as we have given effect to the Board's earlier approval letter of 28-10-1983
for a number of reasons. The first is that the jurisdiction of a Board is to
grant approval to a contract only for the purposes of section 80-O; it has no
jurisdiction to pronounce on the availability or otherwise of an exemption
under section 80-HHB and the Board's opinion as to this, even if expressly
stated by the Board, cannot bind the Officer. The relief under section 80-HHB
is not dependent on the approval of the Board and is for a totally different
type of transaction. The letter of 31.7.85 is also a decision in an individual
case and cannot be treated as a general circular incorporating a policy
decision by the Board that in all cases of a particular type governed by both
section relief may be given under section 80-O in which event perhaps it could
have been implemented by applying the principle of the Jhavari case (supra).
The second is that the Board, in the 1985 letter, has only stated that the
approval under section 80-O will enure for 1982-83 onwards.
This
is quite a correct statement of, as we have explained earlier, the approval by
the Board is to the contract and so long as the contract subsists the relief
should be granted on the term of section 80-O. Thus the assessee is entitled to
deduction under section 80-O on the terms of that section even for 1983-84 and
subsequent years. It becomes disentitled to the relief not because it does not
fulfill the requirements of section 80-O but only because section 80-HHB(5)
stands in the way and mandates that in cases to which both provisions will
apply relief under section 80-HHB will alone be available. The argument that
the applicability of section 80-HHB should be 115 excluded from contracts
entered into, or those approved of under section 80-O, before 1.4.1983, is
patently untenable.
Section
8 comes into force on 1.4.1983 and should be applicable for assessment year
1983-84 onwards in all cases.
It
does not contain even a reference to section 80-O and so its applicability
cannot depend on the formation of the contract subsequent to that date or to
the date of its approval under the latter section being after that date.
Thirdly,
the approval which otherwise qualifies the assessee for relief is no doubt
still effective but its power to "qualify" for relief is taken away
by the new statutory provision. The argument that the assessee could not have
anticipated the insertion of section 80-HHB and is put to a hardship if that
section is applied is no doubt correct. But one cannot decline to give effect
to the applicability of the statutory provision on the ground of hardship or on
the ground that it restricts the relief which, but for the insertion of the
section, would have been available to the assessee, particularly when the
section itself envisages the possibility of the assessee being also eligible
for relief under another section and makes special provision of that
eventuality.
Sri Nariman
submitted that we should not favour the above interpretation as it would lead
to an anomalous result. He says that the whole idea of section 80-HHB was to
enlarge the benefits to contractors working abroad and earning foreign exchange
but that, by reason of our decision, the assessee will now get relief only to
the extent of 25% in respect of a contract for which it got 100% benefit in
earlier years. On the other hand, the department would no doubt say that our
conclusion that the assessee was entitled, in earlier assessment year, to 100 %
relief on this type of contract is anomalous in the light of the fact that
subsequently the legislature specifically provided that only 25 % of the
earnings on foreign projects should be exempted. In our view, there is no force
in these contentions. The anomaly, if it is one, arises because of the specific
language of the statute and the nature of the contract we have to consider. S.
80-HHB does not confer an additional benefit; sub-section (5) in no uncertain
terms states that the benefit thereunder will take away the benefit, if any,
under any other provision. This has to be given effect to. Equally, the assessee
was able to get 100 % relief in earlier years only because the contract here is
of such nature that it consists only of the rendering of technical services so
that the fields of the two exemptions completely overlap. On the other hand, as
discussed earlier, it is possible to conceive of foreign projects wherein the
construction and installation aspect and information or technical services
aspect are kept separate. Equally there can be cases falling under section 80-O
which do not all relate to a "foreign project" as defined in section
80-HHB.
In
such cases, the two provisions will continue to operate independently. There
is, therefore, no anomaly or absurdity in the conclusion we have reached.
116
For the reasons discussed above, we hold that the assessee was entitled to the
relief under section 80-O for assessment years earlier to 1983-84 and that the
approval granted by the Board under that section was right and proper. However,
for the assessment year 1983-84, the assessee does not qualify for deduction on
the terms of that section as the contract receipts are fully covered by the
provisions of s. 80-HHB and the deduction under that section will prevail over
the relief that might have been otherwise available in view of the terms of
section 80-HHB(5). We, therefore, affirm the conclusion reached by the High
Court and dismiss the appeal. We, however, make no order as to costs.
R.P.
Appeal dismissed.
Back
