|QUERY:||The assessee is a partnership firm carrying on medical profession. At present it is carrying on Gynic Branch only for the last several years. It decided to set up 200 bedded multi-specialty hospital and accordingly started the project in May, 2012 under the same partnership firm as a separate unit in order to avail under section 35AD @ 150% of eligible capital expenditure:
(a) Whether this unit can claim deduction under this section though the place of business and the nature of services will be different? No old machinery etc. will be transferred to new building/unit.
(b) Whether the income of both the units owned by the firm will be consolidated for the purpose of applicability of section 115JC or separate treatment?
(c) Can there be any difficulty to claim deduction under section 35AD in case if old unit (Gynic) is also shifted to new Hospital? The new unit may start operation by April-May, 2015.
|ANSWER:||a) Yes, the partnership firm can claim deduction under section 35AD @ 150% on capital expenditure incurred for setting up and operating hospital anywhere in India with more than 100 beds for patients. From the fact, it is clear that no old machinery would be transferred to new building/unit, hence, it would not be set up by splitting up or the reconstruction of a business already in existence. The expression “splitting up of the business already in existence” indicates a case where the integrity of a business earlier in existence is broken up and different sections of the activities previously conducted are carried on independently. [see CIT v. Hindustan General Industries Ltd. – 137 ITR 851 (Del.)]. The term “reconstruction” implies that the identity of the business should not be lost and substantially the same business should be carried on by substantially the same persons as per the Supreme Court in Textiles Machinery Corporation Ltd. v. CIT [107 ITR 195].
b) Yes, income of both the units would be consolidated of the assessee firm and if tax payable is less than Alternate Minimum Tax (AMT), then the assessee firm will have to pay AMT on adjusted total income. While calculating Adjusted Total Income, the deduction claimed under section 35AD to be added after reducing depreciation allowable under section 32 on such capital asset, at the rate prescribed in Rule 5 of the Income-tax Rules, 1961.
c) No difficulty as explained above
|EXPERT:||CA. H. N. Motiwalla|
|CATCH WORDS:||deduction u/s 35AD, new unit, partnership firm|
Opinion Of Eminent Legal Luminaries On Controversial Issues
Can An Existing Firm Claim Deduction u/s 35AD For Set Up Of New Hospital?
One comment on “Can An Existing Firm Claim Deduction u/s 35AD For Set Up Of New Hospital?”
Credit: Several of the queries and answers are reproduced with permission from the AIFTP Journal. We thank AIFTP for generously allowing us to host their research material.
Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org