Court : INCOME TAX APPELLATE TRIBUNAL
Brief : : The brief facts in apropos these grounds are that the assessee, Boskalis Dredging India P.Ltd, is a company incorporated in India on 5th January,1996. It is engaged in the business of undertaking inter alia capital and maintenance dredging projects and providing technical related services in dredging. However, during the relevant year, the income was earned from hire of personnel, hire of equipment and services rendered to group companies and not from dredging contracts. The assessee had leased dredger Gemini and Multicat Coby to associate enterprise, Boskalis International BV (‘BIBV’) since 1997, under the Standard Bareboat Charter Agreement. Since the project for which the dredger was to be used did not materialized, therefore, the said contract for dredger Gemini was terminated w.e.f. 1st January, 2003 and the contract for dredger Multicat Coby was terminated w.e.f. 17th August, 2003. In the return of income, however, the assessee claimed depreciation on dredger Gemini and Multicat Coby for sum of `.89,06,708/- and lay of cost of `.21,86,686/-. The Assessing Officer observed that since the dredgers were not used for the purpose of business right from the assessment year 2003-2004, he, therefore, required the assessee to justify its claim for depreciation and lay up cost as allowable deduction. The assessee’s contention was that these assets were kept ready for use as it was looking for further contracts with other parties and the same should be treated as in passive use entitling for depreciation and allowance of lay cost. The Assessing Officer did not agree with the plea of the assessee and held that the assets were not used for the purpose of business during the relevant year and there is no profit earn from these assets which is assessable to tax in this year and accordingly disallowed the entire depreciation claimed at `.89,06,708/- and expenses incurred on lay up cost for sum of `.21,86,686/-. The detail reasoning for not accepting the assessee’s claim has been dealt with by the Assessing Officer at pages 6 to 10 of the assessment order.
Citation : DCIT-9(1), Mumbai Appellant Vs Boskalis Dredging India P. Ltd., 23, Sangeeta Tagore Road, Santacruz(W), Mumbai-400 054. PAN NO.AAACN2566R Respondent AND ITA No.7152 /Mum/2010 Assessment Year: 2004-2005 DCIT-9(1), Mumbai Appellant Vs. Boskalis Dredging India P. Ltd., 23, Sangeeta Tagore Road, Santacruz(W), Mumbai-400 054. PAN NO.AAACB2566R Respondent
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES “B”, MUMBAI
BEFORE SHRI G.E. VEERABHADRAPPA, HON'BLE PRESIDENT
AND SHRI AMIT SHUKLA, JUDICIAL MEMBER
ITA No.6251 /Mum/2010
Assessment Year: 2005-2006
Boskalis Dredging India P. Ltd., 23,
Sangeeta Tagore Road, Santacruz(W),
ITA No.7152 /Mum/2010
Assessment Year: 2004-2005
Boskalis Dredging India P. Ltd., 23,
Sangeeta Tagore Road, Santacruz(W),
Appellant by: Shri Pravin Varma
Respondent by: Shri M.P.Lohia
Date of hearing: 9th April 2012
Date of pronouncement: 11th May 2012
O R D E R
PER AMIT SHUKLA (J.M.):
The revenue has directed these two appeals i.e. ITA No.6251/Mum/2010 (for the assessment year 2005-2006) against order dated 17-5-2010, passed by the CIT (A)-19, Mumbai and ITA No.7152/Mum/2010 (for the assessment year 2004-2005) against the order dated 24-8-2010, passed by the CIT(A)-15, Mumbai. Since most of the grounds in the both the aforesaid appeals are similar, therefore, these appeals are being disposed of by a consolidated order.
ITA No.6251/Mum/2010 (A.Y. 2005-2006):
This appeal has been filed on the following grounds:-
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that depreciation of Rs.89,06,708/- is admissible on the dredger Gemini and Multicat Coby, despite the finding made by the Assessing Officer that the asset concerned was not actually used for the purpose of business during the relevant previous year.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that lay up costs of `21,86,686/- incurred on the dredger Gemini and Multicat Coby are allowable as deduction, overlooking the fact that these represent capital expenditure incurred and are inadmissible u/s.37(1) of the Income-tax Act, 1961.”
2. The brief facts in apropos these grounds are that the assessee, Boskalis Dredging India P.Ltd, is a company incorporated in India on 5th January,1996. It is engaged in the business of undertaking inter alia capital and maintenance dredging projects and providing technical related services in dredging. However, during the relevant year, the income was earned from hire of personnel, hire of equipment and services rendered to group companies and not from dredging contracts. The assessee had leased dredger Gemini and Multicat Coby to associate enterprise, Boskalis International BV (‘BIBV’) since 1997, under the Standard Bareboat Charter Agreement. Since the project for which the dredger was to be used did not materialized, therefore, the said contract for dredger Gemini was terminated w.e.f. 1st January, 2003 and the contract for dredger Multicat Coby was terminated w.e.f. 17th August, 2003. In the return of income, however, the assessee claimed depreciation on dredger Gemini and Multicat Coby for sum of `.89,06,708/- and lay of cost of `.21,86,686/-. The Assessing Officer observed that since the dredgers were not used for the purpose of business right from the assessment year 2003-2004, he, therefore, required the assessee to justify its claim for depreciation and lay up cost as allowable deduction. The assessee’s contention was that these assets were kept ready for use as it was looking for further contracts with other parties and the same should be treated as in passive use entitling for depreciation and allowance of lay cost. The Assessing Officer did not agree with the plea of the assessee and held that the assets were not used for the purpose of business during the relevant year and there is no profit earn from these assets which is assessable to tax in this year and accordingly disallowed the entire depreciation claimed at `.89,06,708/- and expenses incurred on lay up cost for sum of `.21,86,686/-. The detail reasoning for not accepting the assessee’s claim has been dealt with by the Assessing Officer at pages 6 to 10 of the assessment order.
3. Before the CIT(A) , the assessee reiterated the same contention that the two dredgers had to be kept ready for use as it was bidding for project/contracts from other parties, hence, it should be treated as in passive use, eligible for claiming depreciation. The submissions of the appellant as has been incorporated in the appellate order is being reproduced herein below for sake of ready reference :-
“4.2 The appellant has made very detailed submissions in respect of this ground. It is the basic submission of the appellant that user of the asset should be understood in a wide sense so as to comprise passive as well as active user. Further, if a machine is kept ready for use at any moment, from which taxable profits can be earned, such machinery can be said to be ‘used’ for the purpose of the business, although the machinery is not worked during the year. It is further submitted by the appellant that any forced idleness of the machinery cannot disentitle the assessee from getting the benefit of depreciation. It was prevented from using the machinery on account of want of work. It is explained that dredger Gemini was being used for the Gorai river project in Bangladesh but on account of the delay in commencement of the fourth phase of the Gorai river project, the charter hire agreement for lease of Gemini was terminated and Gemini was idle from April, 2002 to December, 2002. It is further explained that though Gemini was lying idle, the appellant had to keep it ready for use as it was bidding for projects/contracts during the year under consideration. The user of the asset comprises passive as well as active use. The appellant has relied on the following decision:-
(i) CIT v/s G.N.Agrawal, 217 ITR 250 (Mumbai)
(ii) CIT, Mumbai v/s Viswanath Bhaskar Sathe, 5 ITR 621 (Mumbai)
(iii) CIT v/s Premier Industries (India) Ltd. (170 Taxman 407) (MP)
(iv) CIT v/s Vayithri Plantations Ltd., 128 ITR 675 (Mad)
(v) Multican Builders Ltd. V/s CIT. 278 ITR 142 (Cal)
(vi) Capital Bus Service (P) Ltd.v/s Cit, 123 ITR 404 (Delhi)
(vii) CIT v/s Dalmia Cement Ltd., 13 ITR 415 (Pat.)
(viii) CIT v/s Geo Tech Construction Corporation, 244 ITR 452 (Ker.)
(ix) CIT v/s Refrigeration & Allied Industries Ltd.(247 ITR 12)(Del)
4. Learned CIT (A) accepted the contention of the assessee after examining the evidences furnished by the assessee regarding participation in tender as entered into with various entities and correspondence entered into by it with regard to work related enquiries from such entities. He allowed the depreciation and also lay up cost incurred on these assets after observing and holding as under:-
“4.3 I have carefully considered the submissions of the appellant. I have also considered the facts of the case and reasoning of the AO. As per the principles laid down by various judicial precedents, the user of the asset should be understood in a wide sense so as to comprise passive as well as active user. As per various court decisions, if an asset is kept ready for use but not actually used during the year, it should be construed as ‘used’ for the purposes of the business. In the instant case, it is the submission of the appellant that it had kept dredger Gemini and Multicat Coby ready for any contract that may be awarded to it. In fact as per direction, the appellant has furnished before me copies of various correspondence entered into by it with other entities with regard to work related enquiries. As directed appellant has also furnished evidence regarding its participation in tender as entered into various entities, that can be found in the paper book dated 8 February, 2009 which have been filed and placed on record. From this it is evident that appellant was actively involved in bidding for tenders for contract work. Thus the business was alive, though no tenders were actually awarded to it during the year under consideration. Merely because no work was awarded to it cannot be used as a ground to disallow depreciation on the dredgers. In fact the dredgers were kept ready for use as is evident from the facts as existing in this case. Hence, it is held that appellant is entitled to depreciation on dredger Gemini and Multicat Coby as they were kept ready for use and this is corroborated by the fact that the appellant was actually bidding for tenders in the hope that fresh contracts would be awarded to it. Hence, it is held that appellant is eligible for depreciation.
Ground 2 is allowed in faovour of the appellant.”
x x x x x x x x x x x x
5.2 It is the submission of the appellant that lay up costs which is made up of equipments and personnel hire charges, repairs and maintenance, travel and accommodation expenses etc. have been mainly incurred on the two dredger Gemini and Multicat Coby to keep the same in working and ready to be used condition as and when contracts were awarded.
5.3 A finding has already given while adjudicating ground 2 that the two dredgers Gemini and Multicat Coby were kept in a state of “passive use” so as to be put to use when contracts were awarded. Merely because the appellant was not successful in getting contracts, it does not mean that no business activity was carried out. In fact expenses have been incurred in the form of lay up costs was for the purpose of carrying on business and was dictated by commercial expediency. Hence, it is held that the said expenses are allowable u/s 37(1) of the I.T.Act.
This ground of appeal is allowed in favour of the appellant.”
5. Learned CIT DR submitted that for allowing depreciation on an asset, it is essential that it should be used for the business purposes which, herein this case is an accepted fact that the assessee had not used dredger Gemini and Multicat Coby since assessment year 2003-2004 and therefore, the finding and the reasoning given by the Assessing Officer is absolutely correct. In support of his contention, he relied upon the decision of the jurisdictional High Court of Bombay in the case of Dineshkumar Gulabchand Agrawal Vs. CIT, 267 ITR 768 (Bom). Further reliance was placed on the decision of Karnataka High Court judgment in the case of DCIT Vs. Yellamma Dassappa Hospital, reported in (2007) 290 ITR 353.
6. Per Contra, learned AR on behalf of the assessee relied upon the findings given by the CIT(A) and reiterated the same submissions that the assessee was trying to obtain other contracts and was making efforts in this regard with various entities, hence, the assets were kept ready for use. The evidences with regard to such an effort have been filed before us in the form of paper book on which our attention were drawn. Heavy reliance was also placed on the decision of the ITAT Mumbai Bench in the case of GR Shipping Limited Vs. DCIT, passed in ITA No.1722/M/2005 vide order dated 17-7-2008. He further brought to our notice that the said decision of the ITAT has been affirmed by the Hon’ble Bombay High Court vide judgment dated 28-7-2009 in ITA No.598/2009 in the case of CIT Vs. G.R. Shipping Ltd.
7. We have carefully considered the rival submissions of the parties and also gone through the findings given by the Assessing Officer as well as the CIT(A). From the facts and material on record, it is evident that the assessee had leased dredger Gemini and Multicat Coby to Boskalis International BV in the year 1997 under an agreement. Such an asset was leased out for a considerable time till the agreement was terminated in the year 2003 due to delay in commencement of Gorai River Project in Bangladesh. During termination of this agreement, the assets of the assessee were forced to kept idle. Thereafter the assessee was making sincere efforts for getting a contract from other entities so that its asset can be leased. In the interregnum period, the assessee had to maintain these assets and incur the lay up cost so that these assets can be ready for use at any time. It is also apparent from the record that these assets were forming part of “block of assets”. Now, under these circumstances, it has to be seen, whether depreciation and lay up costs on these assets can be allowed.
7.1 The depreciation allowance under Section 32 is a statutory allowance and the main ingredients of such allowances are that :
(i) the depreciable asset is owned wholly or partly by the assessee;
(ii) it is used for the purpose of assessee’s business or profession; and
(iii) depreciation shall be allowed in the case of any block of asset at such percentage on the written down value thereof as may be prescribed.
There is no dispute regarding the fact that the assets in question were owned by the assessee and that it was used for the purpose of assessee’s business in the earlier years and are forming part of ‘block of assets’, except for the fact that it was not used for last few years. It is also not the case of the revenue that the assessee had ceased to carry on the business of leasing of dredger Gemini and Multicat Coby or it did not make effort to revive this particular business.
7.2 The “block of asset” as is defined under Section 2(11) means, a group of assets falling within the class of assets being buildings, machinery, plant or furniture, in respect of which same percentage of depreciation is prescribed. The concept of “block of asset” has been brought in the statute w.e.f. 1-4-1988. Henceforth, the depreciation is to be allowed on “block of assets” and not on individual items.
7.3 The “written down value” has been defined in sub-section (6) of Section 43 and written down value on block of assets has been provided in sub-clause (c) which reads as under :-
(c) “Written down value” in the case of any “block of assets”
“(i) In respect of any previous year relevant to the assessment year commencing on the 1st day of April, 1988, the aggregate of the written down values of all the assets falling within that block of assets at the beginning of the previous year and adjusted, -
(A) by the increase by the actual cost of any asset falling within that block, acquired during the previous year; and
(B) by the reduction of the moneys payable in respect of any asset falling within that block, which is sold or discarded or demolished or destroyed during that previous year together with the amount of the scrap value, if any, so, however, that the amount of such reduction does not exceed the written down value as so increased; and
(ii) in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 1989, the written down value of that block of assets in the immediately preceding previous year as reduced by the depreciation actually allowed in respect of that block of assets in relation to the said preceding previous year and as further adjusted by the increase or the reduction referred to in item (i).”
Thus, from 1-4-1988 i.e. from the assessment year 1988-1989, the written down value of any “block of asset” shall be the aggregate of the W.D.V. of all the assets falling within that block of assets at the beginning of the previous year. From this, the adjustment has to be made for the increase or reduction of the “block of assets” during the year under consideration. Thus asset which has been purchased by the assessee and has been used for the purpose of business and the same has been included in the “block of asset”, then depreciation has to be allowed as per the W.D.V.
7.4. Here in this case all such conditions stands fulfilled. Now, the issue is, if any asset which is forming part of ‘block of asset’ could not be used due to some reasons beyond the control of the assessee, whether depreciation can be disallowed. The adjustment in the block of asset can be done only in terms of provisions contained in the clause (c) of the sub Section 6 of Section 43 and not otherwise. The individual asset looses its identity and for allowing depreciation the entire block has to be considered. The ownership and the user of ‘block of assets’ are the criteria for claim for depreciation. The user criteria gets fulfilled at the time when the assets form part of the block of asset and once the assets are part of block of asset, it looses its individual cost or written value. The depreciation is allowable in the entire block of asset.
8. The depreciation is an allowance towards wear and tear of plant and machinery and it spreads over to a useable life for which depreciation rate have been provided under the rules. Once the asset have been purchased and is ready for use, the same is entitled for depreciation. This aspect of the matter does not need any elaborate discussion as it has been subject matter of judicial scrutiny in many cases. For instance, Punjab and Haryana High Court in the case of CIT Vs. Nahar Exports Ltd., reported in (2008) 296 ITR 419 (P&H), has held that where the machinery is kept ready for use but could not be put to use for non-receipt of orders, the assessee would be entitled to depreciation. In the decision of G.R.Shipping Ltd. (supra) passed by the ITAT Mumbai Bench after analysing the provision contained in Section 30 & 43 (6) and also the decision of the Hon’ble jurisdictional Bombay High Court in the case of Dineshkumar Gulabchand Agrawal (supra) which has been relied upon by the Learned CIT DR has observed and held that:-
“10. The Legislature felt that keeping the details with regard to each and every depreciable assets was time consuming both for the assessee and the Assessing Officer. Therefore, they amended the law to provide for allowing of the depreciation on the entire block of assets instead of each individual assets. The block of assets has also been defined to include the group of assts failing with the same class of assets. Hence, after the amendment with effect from 01.04.1988, the individual assets have lost its identity and for the purpose of allowing of depreciation, only the block of assets has to be considered. If a block of assets is owned by the assessee and used for the purpose of business, depreciation will be allowed. Therefore, the test of user has to be applied upon the block as a whole instead of upon an individual asset.
11. The above principle has been laid down in the following decisions relied upon by the ld. Counsel for the assessee namely;
(A) Notco Exports Vs. DCIT, 86 ITD 445 (Hyd.),
(B) ACIT Vs. SRF Ltd., Vol.21 SOT 122 (Del.), &
(C) Unitex products Ltd.Vs.ITO,Vol.22 SOT 429 (Mum).
12. The ld. DR however submitted the user was a condition for allowing depreciation and in this regard relied to the decision of the Hon’ble Bombay High Court in the case of Dineshkumar Gulabchand Agrawal vs. CIT, 267 ITR 768 (Bom). We have perused the aforesaid decision and are of the view that the same is not applicable to the facts of the present case. In the present case, the assessee has already used the asset for the purpose of business. The asset has already entered the block of assets. In the case before the Hon’ble Bombay High Court, the asset in question was not at all put to use. We, therefore, find the decision relied upon the ld. DR. is of no assistance to the plea of the DR. Respectfully following the decisions of the Tribunals referred to the above, we hold that the assessee was entitled to claim depreciation and the Assessing Officer directed to allow the same.”
The abovesaid decision has also been affirmed by the Hon’ble jurisdictional High Court vide judgment dated 28-7-2009 passed in ITA No.598/2009 after relying upon the judgment of Whittle Anderson Ltd. Vs. CIT, reported in 79 ITR 613 and in the case of CIT Vs. G.N. Agrawal (Individual), reported in 217 ITR 250. Thus, respectfully following the aforesaid decisions, and on the facts and circumstances of the case, we hold that the depreciation on dredger Gemini and Multicat Coby is allowable to the assessee.
9. The next issue is disallowance of lay up cost of `.21,86,686/- incurred on dredger Gemini and Multicat Coby. This issue also gets covered in view of the logic and reasoning given above. Nothing has been brought on the record that the assessee has completely abandoned or has closed the business for ever. Rather the assessee’s case is that, it was unable to get a contract or a business after the agreement was terminated in the year 2003. It was its endeavour to sustain its business that it had incurred lay up cost for maintenance of such an assets, so that it is ready for use at any time, otherwise such an expensive asset will go down waste. There may be lull in the business of an assessee, however, it was a ongoing concern and the assessee had to maintain and upkeep its asset so that as and when the business comes, it can use it. Thus, incurring of expenditure for lay up cost on such assets are allowable deduction. This view is also fortified by the decision relied upon by the learned AR in the following cases:
i) L VE. Vairvavan Chettiar Vs. CIT, 72 ITR114 (Mad);
ii) United Liner Agency of India (P) Ltd. Vs. CIT, (1992) 108 CTR (Cal) 390.
In the aforesaid decisions, it has been held that the expenditure which has been incurred on maintenance of plant and machinery or asset so that it is ready for use, cannot be disallowed on the ground that no business was actually done and no income has been earned. Such an expenditure has to be treated as incurred wholly and exclusively for the purpose of business. Thus, disallowance of `.21,86,686/- made by the Assessing Officer on account of lay up cost incurred on dredger Gemini and Multicat Coby are allowable deduction.
10. In the result both the grounds of the Department are dismissed.
11. In this appeal, the department has raised the following grounds of appeal :-
“1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the transfer pricing adjustment of Rs.5,30,580/- vis-à-vis the lease rentals on the dredger “Multicat Coby’, despite material available on record which shows that repairs and maintenance expenditure incurred had to be borne by the charter of the dredger and not the owner.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that depreciation of `64,61,791/- is admissible on the dredger ‘Gemini”, overlooking the fact that the asset was not actually used for the purpose of business during the relevant previous year.
3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance Rs.1,88,43,179/- being lay up costs of dredgers, in spite of the Assessing Officer’s finding that there were capital expenses and the assessee had not proved with evidence that they were deductible as revenue expenditure u/s. 37(1) of the I.T.Act,1961.
12. At the outset, it is admitted by both the parties that grounds No.2 & 3 are similar to grounds No.1 & 2 for the assessment year 2005- 2006. Since the facts and the issues involved in these grounds are similar, therefore, the finding given above in the aforesaid appeal applies mutatis mutandis, herein this appeal also and accordingly grounds No.2 & 3 raised by the department are dismissed.
13. So far as the ground No.1, is concerned, learned AR on behalf of the assessee submitted that this issue had come up for consideration before the ITAT in the assessment year 2003-2004, wherein the matter was set aside to the Transfer Pricing Officer (TPO) and in pursuance thereof, TPO has passed the order under Section 92A (3) and held that no addition has to be made on lease rental of dredger Gemini and Multicat Coby. Learned CIT DR has not disputed this fact.
14. We have heard the rival contention on this score and also the findings given by the CIT(A). In the appellate order, the learned CIT(A) has discussed the entire facts relating to transfer pricing adjustment on account of lease rental of dredger Gemini and Multicat Coby for including maintenance and repair cost. After considering the entire submissions and the facts which are dealt in para 4.2, 4.3, 4.4 and 4.5, which for sake of appreciation of facts and ready reference are reproduced hereunder :-
“4.2 The learned Assessing Officer, while reviewing the transaction during the assessment proceedings, has accepted the VG Bouw valuation norm as an appropriate basis for determining the arm’s length price. However, in line with its order in AY 2002-2003 and AY 2003-2004, the learned Assessing Officer had challenged the fact that M+R component was not included in the lease rental rate during the year August 1 2003 and August, 17, 2003.
* The commercial term that M+R costs would be directly to the account of the Charter is without any basis and not supported by any documentation;
* Further the new clause inserted in line 150 of the contract says that the charges shall be borne by the Owner; and
* BDIPL is taking conflicting positions on the issue of repairs for the dredger Gemini wherein it is bearing the repairs and does not charge the Charterer for the same, whereas for Multicat Coby it is contending that the repairs are on account of the Charterer and hence justifying a lower rate.
4.3 In the course of the appellate proceedings before me the assessee made detailed submission. The assessee submitted that maintenance and repair (‘M+R’) are defined as per VG Bouw valuation norms as all activities which are carried out with the aim of maintaining a system in the technical state necessary for the system to perform properly in respect of the type and extent of its designated functions.
The following costs are included in the M+R cost component that is factored in the lease rental calculation as per the VG Bouw valuation norms:
* Maintenance and repair on the site;
* Spare parts, including consumables for the dredging installation;
* Technical consumables and cleaning items;
* All cables;
* The costs of repairs at a wharf;
* Freight costs in respect of spare parts required for repairs at a wharf; and
* Directly attributable staff costs in respect of M+R during repair periods (not on site).
Any repairs and maintenance costs pertaining to above are to be borne by the Charterer. However, there are certain costs in respect of additional wear to dredging components that are excluded for the purpose of calculation of the M+R component in the lease rentals. Such costs are borne by the Owner and not the Charterer. The expenses that are specifically excluded for the purpose of calculation of M+R component in the lease rentals as per the VG Bouw valuation norms are as follows:
* Technical services department (overhead)
* Staff costs except those specified above;
* Supplies to personnel;
* Lubricants, fuels and water;
* Laying up and idle time;
* Insurance premiums;
* Franchise in respect of damage;
* Additional wear to dredging components;
* Spare parts in addition to the standard set on board;
* Mobilization and demobilization;
* Modifications and special facilities for a particular job;
* Freight costs for transport of spare parts abroad; free along ship (f.a.s.); and
* Travelling expenses and subsistence costs for technical specialists working abroad.
4.4 The repair expenses incurred by BDIPL fall within the above category and are thus to be incurred by the Owner of the asset and not the Charter. Based on the above, the M+R component has not been factored in the valuation of the lease rentals for Multicat Coby. A working of the same is as follows:
As per in the agreement
As per the VG Bouw valuation certificate
A+R (Depreciation and Interest)
M+R (Maintenance and Repairs)
Total 4,992 9,275
4.5 In support of the above, reference was also made to clause 9 line 150 of the lease agreement, which states as under:-
Further, the repairs and maintenance costs in respect of additional wear to dredging components, overheads of technical services department, modifications and special facilities for a particular job and costs pertaining to technical specialist working abroad for the purpose of carrying out such repairs and maintenance shall be for the account of the Owner’.
The Learned CIT(A) has deleted the addition and has given the following findings :-
“4.6 Moreover in AY 2003-2004, in which the Transfer Pricing Officer (‘TPO’) vide order passed under section 92CA(3) read with section 254 of the Act in consequence of ITAT order while dealing with the same issue held that no addition is to be made on lease rentals of dredger Multicat Coby.
4.7 Taking all the facts and circumstances it is obvious that the agreement is very clear that expenses which not included in M+R, are on the account of charterer and accordingly, same not recovered from the Charterer by the way of lease rentals. That being the case, there should be no transfer pricing adjustment in this respect and the lease rentals charged for Multicat Coby should be considered at Eur 4,992 per week instead of Eur 9,275.”
15. In view of the above, we do not find any infirmity in the order of the CIT(A) as it is based on transfer pricing adjustment made by the TPO made in the assessment year 2003-2004 and accordingly the findings given by the CIT(A) are upheld and ground No.1 of the department is dismissed.
16. In the result, both the appeals filed by the department for the Assessment Years 2005-2006 & 2004-2005 are dismissed.
Order pronounced on this 11th day of May, 2012.
(G.E. VEERABHADRAPPA) (AMIT SHUKLA)
PRESIDENT JUDICIAL MEMBER
MUMBAI, Dt: 11th May, 2012
Copy forwarded to:
2. The Respondent,
3. The C.I.T.
4. CIT (A)
5. The DR, B - Bench, ITAT, Mumbai
ITAT, Mumbai Benches, Mumbai