My client is setting up a cold storage and wants the section 35AD deduction. Which businesses are actually within the section, from what date does each qualify, is the deduction still a hundred per cent, and can we choose not to claim it?
Section 35AD allows a deduction of the WHOLE of any capital expenditure incurred wholly and exclusively for a specified business in the previous year in which it is incurred, with a proviso pulling pre-commencement capital expenditure into the year operations commence if it was capitalised in the books on that date. Since the Finance Act, 2020 (Act 12 of 2020) amended sub-section (1) with effect from 1 April 2020, the words are "An assessee shall, if he opts, be allowed a deduction" — the deduction became OPTIONAL from AY 2020-21, which is what makes the section 115BAA and 115BAB concessional regimes workable. There are fourteen specified businesses in section 35AD(8)(c), and each qualifies only if it commences operations on or after the date given for it in section 35AD(5). These are the dates the business must have COMMENCED OPERATIONS on or after; they are not the dates on which each business was added to the list by amendment, and the two do not coincide. The dates are as follows: cross-country natural gas pipeline networks from 1 April 2007; a two-star-or-above hotel, a hospital with at least a hundred beds, and a slum redevelopment or rehabilitation housing project from 1 April 2010; an affordable housing project and a new or newly installed fertiliser plant from 1 April 2011; an inland container depot or container freight station, bee-keeping and honey and beeswax production, and a sugar warehousing facility from 1 April 2012; a slurry pipeline for transporting iron ore and a semi-conductor wafer fabrication unit from 1 April 2014; a new infrastructure facility from 1 April 2017; and everything else falling within the list — cold chain facilities, agricultural produce warehousing and crude or petroleum oil pipelines — from 1 April 2009. A weighted deduction of one and one-half times ran alongside for five businesses under sub-section (1A), inserted by the Finance Act, 2012 with effect from 1 April 2013 and OMITTED by the Finance Act, 2016 (Act 28 of 2016) with effect from 1 April 2018; so 150 per cent is available for AY 2013-14 to AY 2017-18 and a hundred per cent before and after.
Decided by the CBDT Circulars & Instructions (Not applicable — statutory text) on 2020-04-01, reported as Section 35AD of the Income-tax Act, 1961, transcribed from incometaxindia.gov.in/w/section-35ad-16 (heading "Deduction in respect of expenditure on specified business", Year: 2025); legislative history from the footnote lists on /w/section-35ad-4 (Year 2013), /w/section-35ad-5 (Year 2014), /w/section-35ad-6 (Year 2015), /w/section-35ad-7 (Year 2016), /w/section-35ad-9 (Year 2020) and /w/section-35ad-11 (Year 2021). It bears on section 35AD, section 35AD(1), section 35AD(1A), section 35AD(2), section 35AD(5), section 35AD(6A), section 35AD(8), section 35AD(8)(c), section 35AD(8)(e), section 35AD(8)(f), section 115BAA, section 115BAB of the Income Tax Act 1961, in Deductions & Disallowances, How Tax Law Is Read and Assessment & Scrutiny matters.
Practitioners lose section 35AD claims on the commencement date far more often than on anything else, because the date is not in the definition of the business but in sub-section (5), and each business has its own. A hotel that commenced operations in 2009 is not within the section at all, because clause (aa) requires commencement on or after 1 April 2010; the general clause (b) date of 1 April 2009 applies only to cases "not falling under any of the above clauses". The 150 per cent window is a second date trap in the opposite direction: an assessee whose cold chain facility, agricultural warehouse, hospital, affordable housing project or fertiliser plant commenced on or after 1 April 2012 was entitled to one and one-half times the expenditure for assessment years 2013-14 to 2017-18 and to a hundred per cent from AY 2018-19, when sub-section (1A) was omitted. Beyond the dates, three features shape the claim. Sub-section (2) imposes gateway conditions: the specified business must not be set up by splitting up or reconstructing a business already in existence, and must not be set up by transferring previously used plant or machinery — subject to the twenty per cent tolerance in sub-section (8)(e) and the imported-machinery relief in sub-section (8)(d). Sub-section (8)(f) narrows what counts as capital expenditure: land, goodwill and financial instruments are excluded outright, and any payment or aggregate of payments to a person in a day exceeding ten thousand rupees otherwise than by account payee cheque, account payee bank draft, electronic clearing system or another prescribed electronic mode is excluded too. And sub-section (6A) preserves the deduction for a hotel owner who transfers the OPERATION of the hotel to another while continuing to own it — the owner is deemed still to be carrying on the specified business, which reverses what would otherwise be a fatal outsourcing.
Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them.
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Sub-section (1), as printed on the Year 2025 page: "An assessee shall, if he opts, be allowed a deduction in respect of the whole of any expenditure of capital nature incurred, wholly and exclusively, for the purposes of any specified business carried on by him during the previous year in which such expenditure is incurred by him : Provided that the expenditure incurred, wholly and exclusively, for the purposes of any specified business, shall be allowed as deduction during the previous year in which he commences operations of his specified business, if— (a) the expenditure is incurred prior to the commencement of its operations; and (b) the amount is capitalised in the books of account of the assessee on the date of commencement of its operations." Sub-section (1A) is shown as "(1A) [***]"; its omitted text, transcribed from the pages stamped Year 2013, 2014, 2015 and 2016, read: "Where the specified business is of the nature referred to in sub-clause (i) or sub-clause (ii) or sub-clause (v) or sub-clause (vii) or sub-clause (viii) of clause (c) of sub-section (8) and has commenced its operations on or after the 1st day of April, 2012, the deduction under sub-section (1) shall be allowed of an amount equal to one and one-half times of the expenditure referred to therein." Sub-section (5) sets the qualifying commencement dates clause by clause: (a) 1 April 2007 for cross-country natural gas pipeline networks; (aa), (ab) and (ac) 1 April 2010 for a two-star-or-above hotel, a hospital with at least one hundred beds and a slum redevelopment or rehabilitation housing project; (ad) and (ae) 1 April 2011 for an affordable housing project and for a new plant or newly installed capacity in an existing plant for production of fertilizer; (af), (ag) and (ah) 1 April 2012 for an inland container depot or container freight station notified or approved under the Customs Act, 1962, for bee-keeping and production of honey and beeswax, and for a sugar warehousing facility; (ai) and (aj) 1 April 2014 for a slurry pipeline for the transportation of iron ore and for a notified semi-conductor wafer fabrication manufacturing unit; (ak) 1 April 2017 for developing or operating and maintaining, or developing, operating and maintaining, any infrastructure facility; and (b) 1 April 2009 in all other cases not falling under any of the above clauses. Sub-section (8)(c) lists the fourteen specified businesses, sub-clause (i) cold chain facility to sub-clause (xiv) a new infrastructure facility, and sub-section (8)(ba) defines "infrastructure facility" as a road including a toll road, a bridge or a rail system; a highway project including housing or other activities being an integral part of the highway project; a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; and a port, airport, inland waterway, inland port or navigational channel in the sea.
Not a judgment. The statutory position is that section 35AD allows the whole of the capital expenditure of a specified business, at the assessee's option from AY 2020-21; that pre-commencement capital expenditure is allowed in the commencement year if capitalised in the books on that date; that a business qualifies only if it commenced operations on or after the date fixed for it in section 35AD(5); that a weighted deduction of one and one-half times was available for five of the businesses commencing on or after 1 April 2012, for AY 2013-14 to AY 2017-18 only; that land, goodwill, financial instruments and cash or non-prescribed payments over ten thousand rupees a day to a person are outside "expenditure of capital nature"; that the business must not be set up by splitting up or reconstruction or by transferring previously used plant or machinery beyond the twenty per cent tolerance; and that a hotel owner who transfers the operation of the hotel while continuing to own it is still deemed to carry on the specified business.
Not a judgment; no judicial reasoning is stated for the section itself.
An assessee shall, if he opts, be allowed a deduction in respect of the whole of any expenditure of capital nature incurred, wholly and exclusively, for the purposes of any specified business carried on by him during the previous year in which such expenditure is incurred by him
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Handle my notice → Ask a CA on WhatsAppSection 35AD allows a deduction of the WHOLE of any capital expenditure incurred wholly and exclusively for a specified business in the previous year in which it is incurred, with a proviso pulling pre-commencement capital expenditure into the year operations commence if it was capitalised in the books on that date. Since the Finance Act, 2020 (Act 12 of 2020) amended sub-section (1) with effect from 1 April 2020, the words are "An assessee shall, if he opts, be allowed a deduction" — the deduction became OPTIONAL from AY 2020-21, which is what makes the section 115BAA and 115BAB concessional regimes workable. There are fourteen specified businesses in section 35AD(8)(c), and each qualifies only if it commences operations on or after the date given for it in section 35AD(5). These are the dates the business must have COMMENCED OPERATIONS on or after; they are not the dates on which each business was added to the list by amendment, and the two do not coincide. The dates are as follows: cross-country natural gas pipeline networks from 1 April 2007; a two-star-or-above hotel, a hospital with at least a hundred beds, and a slum redevelopment or rehabilitation housing project from 1 April 2010; an affordable housing project and a new or newly installed fertiliser plant from 1 April 2011; an inland container depot or container freight station, bee-keeping and honey and beeswax production, and a sugar warehousing facility from 1 April 2012; a slurry pipeline for transporting iron ore and a semi-conductor wafer fabrication unit from 1 April 2014; a new infrastructure facility from 1 April 2017; and everything else falling within the list — cold chain facilities, agricultural produce warehousing and crude or petroleum oil pipelines — from 1 April 2009. A weighted deduction of one and one-half times ran alongside for five businesses under sub-section (1A), inserted by the Finance Act, 2012 with effect from 1 April 2013 and OMITTED by the Finance Act, 2016 (Act 28 of 2016) with effect from 1 April 2018; so 150 per cent is available for AY 2013-14 to AY 2017-18 and a hundred per cent before and after. This was decided by the CBDT Circulars & Instructions (Not applicable — statutory text) and bears on section 35AD, section 35AD(1), section 35AD(1A), section 35AD(2), section 35AD(5), section 35AD(6A), section 35AD(8), section 35AD(8)(c), section 35AD(8)(e), section 35AD(8)(f), section 115BAA, section 115BAB of the Income Tax Act 1961. It is reported as Section 35AD of the Income-tax Act, 1961, transcribed from incometaxindia.gov.in/w/section-35ad-16 (heading "Deduction in respect of expenditure on specified business", Year: 2025); legislative history from the footnote lists on /w/section-35ad-4 (Year 2013), /w/section-35ad-5 (Year 2014), /w/section-35ad-6 (Year 2015), /w/section-35ad-7 (Year 2016), /w/section-35ad-9 (Year 2020) and /w/section-35ad-11 (Year 2021). Practitioners lose section 35AD claims on the commencement date far more often than on anything else, because the date is not in the definition of the business but in sub-section (5), and each business has its own. A hotel that commenced operations in 2009 is not within the section at all, because clause (aa) requires commencement on or after 1 April 2010; the general clause (b) date of 1 April 2009 applies only to cases "not falling under any of the above clauses". The 150 per cent window is a second date trap in the opposite direction: an assessee whose cold chain facility, agricultural warehouse, hospital, affordable housing project or fertiliser plant commenced on or after 1 April 2012 was entitled to one and one-half times the expenditure for assessment years 2013-14 to 2017-18 and to a hundred per cent from AY 2018-19, when sub-section (1A) was omitted. Beyond the dates, three features shape the claim. Sub-section (2) imposes gateway conditions: the specified business must not be set up by splitting up or reconstructing a business already in existence, and must not be set up by transferring previously used plant or machinery — subject to the twenty per cent tolerance in sub-section (8)(e) and the imported-machinery relief in sub-section (8)(d). Sub-section (8)(f) narrows what counts as capital expenditure: land, goodwill and financial instruments are excluded outright, and any payment or aggregate of payments to a person in a day exceeding ten thousand rupees otherwise than by account payee cheque, account payee bank draft, electronic clearing system or another prescribed electronic mode is excluded too. And sub-section (6A) preserves the deduction for a hotel owner who transfers the OPERATION of the hotel to another while continuing to own it — the owner is deemed still to be carrying on the specified business, which reverses what would otherwise be a fatal outsourcing. If it applies to you, the first step is this: Take the date of commencement of operations of the specified business and match it against the clause of section 35AD(5) for that business, not against the general 1 April 2009 date in clause (b), which applies only to cases "not falling under any of the above clauses". If the business commenced before its own clause date, there is no deduction, and no amount of expenditure will cure it. Note that this is a commencement-of-operations test, not a test of when the business was added to the statutory list; do not use the amending Finance Act's date for this purpose.
Sub-section (1), as printed on the Year 2025 page: "An assessee shall, if he opts, be allowed a deduction in respect of the whole of any expenditure of capital nature incurred, wholly and exclusively, for the purposes of any specified business carried on by him during the previous year in which such expenditure is incurred by him : Provided that the expenditure incurred, wholly and exclusively, for the purposes of any specified business, shall be allowed as deduction during the previous year in which he commences operations of his specified business, if— (a) the expenditure is incurred prior to the commencement of its operations; and (b) the amount is capitalised in the books of account of the assessee on the date of commencement of its operations." Sub-section (1A) is shown as "(1A) [***]"; its omitted text, transcribed from the pages stamped Year 2013, 2014, 2015 and 2016, read: "Where the specified business is of the nature referred to in sub-clause (i) or sub-clause (ii) or sub-clause (v) or sub-clause (vii) or sub-clause (viii) of clause (c) of sub-section (8) and has commenced its operations on or after the 1st day of April, 2012, the deduction under sub-section (1) shall be allowed of an amount equal to one and one-half times of the expenditure referred to therein." Sub-section (5) sets the qualifying commencement dates clause by clause: (a) 1 April 2007 for cross-country natural gas pipeline networks; (aa), (ab) and (ac) 1 April 2010 for a two-star-or-above hotel, a hospital with at least one hundred beds and a slum redevelopment or rehabilitation housing project; (ad) and (ae) 1 April 2011 for an affordable housing project and for a new plant or newly installed capacity in an existing plant for production of fertilizer; (af), (ag) and (ah) 1 April 2012 for an inland container depot or container freight station notified or approved under the Customs Act, 1962, for bee-keeping and production of honey and beeswax, and for a sugar warehousing facility; (ai) and (aj) 1 April 2014 for a slurry pipeline for the transportation of iron ore and for a notified semi-conductor wafer fabrication manufacturing unit; (ak) 1 April 2017 for developing or operating and maintaining, or developing, operating and maintaining, any infrastructure facility; and (b) 1 April 2009 in all other cases not falling under any of the above clauses. Sub-section (8)(c) lists the fourteen specified businesses, sub-clause (i) cold chain facility to sub-clause (xiv) a new infrastructure facility, and sub-section (8)(ba) defines "infrastructure facility" as a road including a toll road, a bridge or a rail system; a highway project including housing or other activities being an integral part of the highway project; a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; and a port, airport, inland waterway, inland port or navigational channel in the sea. The matter was decided on 2020-04-01 by the CBDT Circulars & Instructions (Not applicable — statutory text). On those facts the CBDT Circulars & Instructions held as follows. Not a judgment. The statutory position is that section 35AD allows the whole of the capital expenditure of a specified business, at the assessee's option from AY 2020-21; that pre-commencement capital expenditure is allowed in the commencement year if capitalised in the books on that date; that a business qualifies only if it commenced operations on or after the date fixed for it in section 35AD(5); that a weighted deduction of one and one-half times was available for five of the businesses commencing on or after 1 April 2012, for AY 2013-14 to AY 2017-18 only; that land, goodwill, financial instruments and cash or non-prescribed payments over ten thousand rupees a day to a person are outside "expenditure of capital nature"; that the business must not be set up by splitting up or reconstruction or by transferring previously used plant or machinery beyond the twenty per cent tolerance; and that a hotel owner who transfers the operation of the hotel while continuing to own it is still deemed to carry on the specified business.
Not a judgment; no judicial reasoning is stated for the section itself. In the words reproduced by the source cited on this page: "An assessee shall, if he opts, be allowed a deduction in respect of the whole of any expenditure of capital nature incurred, wholly and exclusively, for the purposes of any specified business carried on by him during the previous year in which such expenditure is incurred by him"
It was decided by the CBDT Circulars & Instructions on 2020-04-01 and is reported as Section 35AD of the Income-tax Act, 1961, transcribed from incometaxindia.gov.in/w/section-35ad-16 (heading "Deduction in respect of expenditure on specified business", Year: 2025); legislative history from the footnote lists on /w/section-35ad-4 (Year 2013), /w/section-35ad-5 (Year 2014), /w/section-35ad-6 (Year 2015), /w/section-35ad-7 (Year 2016), /w/section-35ad-9 (Year 2020) and /w/section-35ad-11 (Year 2021). Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them. A CBDT circular or instruction binds officers of the department but not the assessee and not the courts. Where a circular helps you, you may hold the department to it. Where it hurts you, it cannot override the Act or a judgment. On section 35AD, section 35AD(1), section 35AD(1A), section 35AD(2), section 35AD(5), section 35AD(6A), section 35AD(8), section 35AD(8)(c), section 35AD(8)(e), section 35AD(8)(f), section 115BAA, section 115BAB, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. Not a judgment. The statutory position is that section 35AD allows the whole of the capital expenditure of a specified business, at the assessee's option from AY 2020-21; that pre-commencement capital expenditure is allowed in the commencement year if capitalised in the books on that date; that a business qualifies only if it commenced operations on or after the date fixed for it in section 35AD(5); that a weighted deduction of one and one-half times was available for five of the businesses commencing on or after 1 April 2012, for AY 2013-14 to AY 2017-18 only; that land, goodwill, financial instruments and cash or non-prescribed payments over ten thousand rupees a day to a person are outside "expenditure of capital nature"; that the business must not be set up by splitting up or reconstruction or by transferring previously used plant or machinery beyond the twenty per cent tolerance; and that a hotel owner who transfers the operation of the hotel while continuing to own it is still deemed to carry on the specified business. It arises in Deductions & Disallowances, How Tax Law Is Read and Assessment & Scrutiny matters, on section 35AD, section 35AD(1), section 35AD(1A), section 35AD(2), section 35AD(5), section 35AD(6A), section 35AD(8), section 35AD(8)(c), section 35AD(8)(e), section 35AD(8)(f), section 115BAA, section 115BAB of the Income Tax Act 1961, and was decided by Not applicable — statutory text. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Where the expenditure was incurred before operations commenced, check that it was capitalised in the books on the date operations commenced. The proviso to sub-section (1) allows the deduction in the commencement year only on that condition. For assessment years 2013-14 to 2017-18, check whether the business is one of the five in sub-section (1A) — sub-clauses (i), (ii), (v), (vii) and (viii) of section 35AD(8)(c) — and commenced on or after 1 April 2012. If so the deduction was one and one-half times, and the omission of sub-section (1A) from AY 2018-19 does not affect earlier years. Strip land, goodwill and financial instruments out of the capital expenditure figure before claiming, and check the payment mode on every item: anything over ten thousand rupees paid to a person in a day other than by account payee cheque, account payee draft or a prescribed electronic mode is not capital expenditure for this section. Run the sub-section (2) gateway: not set up by splitting up or reconstruction, and no previously used plant or machinery beyond the twenty per cent tolerance in sub-section (8)(e). For imported machinery never used in India, sub-section (8)(d) takes it out of the 'previously used' bar altogether. From AY 2020-21, treat the claim as an election and record it. The deduction is now available only 'if he opts', which is what lets a company move to section 115BAA or 115BAB; and once opted and allowed, section 35AD(4) shuts off the same expenditure everywhere else.
Still good law. The current text is verified on a departmental page stamped Year 2025, and the sub-section structure is the same on the pages stamped Year 2021, Year 2023 and Year 2024. The commencement dates are taken from footnote lists on year-stamped archived pages and from the words of sub-section (5) itself, because the Year 2025 page carries no footnote list. Two things the label cannot carry. First, I could not source the enacting Act for clause (ak) of sub-section (5) or clause (ba) of sub-section (8), so those two additions are dated only by the qualifying date the clauses themselves state. Second, I did not check judicial treatment of sub-sections (1), (1A), (5) or (8) beyond the Tribunal order in Jaybhole Cold Storage noted elsewhere in this batch. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
Section 35AD was transcribed in two portions — sub-sections (1) to (5), then (6) to (8) — from https://incometaxindia.gov.in/w/section-35ad-16, on fetches required to state the Act name, the heading and the "Year:" stamp and forbidden to answer "absent"; the page returned the Income-tax Act, 1961, the heading "Deduction in respect of expenditure on specified business" and Year: 2025, which is the most recent stamp I found across the suffixes I probed (bare, 1, 2, 4, 5, 6, 7, 9, 10, 11, 13, 14, 16, 17 and 18). BEWARE OF THE BARE PAGE: https://incometaxindia.gov.in/w/section-35ad is stamped Year 2009 and prints the ORIGINAL text with only three specified businesses, no sub-section (1A), no (6A), no (7A) to (7C) and none of the commencement clauses (aa) to (ak); reading current law off it would understate the section drastically. THE YEAR 2025 PAGE CARRIES NO FOOTNOTE LIST AT ALL — a fetch demanding the footnotes returned "NO FOOTNOTE LIST ON PAGE" — so no commencement date can be sourced from it, and every date in this entry comes either from the words of sub-section (5) itself, which state the qualifying commencement date for each business, or from footnote lists on year-stamped archived pages. Those footnotes are: "Inserted by the Finance (No. 2) Act, 2009, w.e.f. 1-4-2010" for the section (page stamped Year 2014); "Inserted by the Finance Act, 2012, w.e.f. 1-4-2013" against sub-section (1A) (page stamped Year 2013); "Sub-section (1A) of section 35AD shall be omtt. by Act No. 28 of 2016 (w.e.f. 1-4-2018)" (page stamped Year 2016); and "Ins. by the Act No. 12 of 2020, w.e.f. 1-4-2020" against the insertions in sub-sections (1) and (4), which appears on the pages stamped Year 2020 and Year 2021. Sub-section (1A) is present on the pages stamped Year 2013, 2014, 2015 and 2016 and shown as "[***]" on the pages stamped Year 2018 onwards, which brackets the omission where the footnote puts it. I have NOT independently verified that Act No. 12 of 2020 is the Finance Act, 2020 or that Act No. 28 of 2016 is the Finance Act, 2016 against a gazette copy; those are the department's own Act numbers. I could not source the enacting Act or date for clause (ak) of sub-section (5) (infrastructure facility, 1 April 2017) or for clause (ba) of sub-section (8) (the definition of "infrastructure facility"), and this entry therefore gives only the qualifying date those clauses themselves state. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
Not a judgment. The statutory position is that section 35AD allows the whole of the capital expenditure of a specified business, at the assessee's option from AY 2020-21; that pre-commencement capital expenditure is allowed in the commencement year if capitalised in the books on that date; that a business qualifies only if it commenced operations on or after the date fixed for it in section 35AD(5); that a weighted deduction of one and one-half times was available for five of the businesses commencing on or after 1 April 2012, for AY 2013-14 to AY 2017-18 only; that land, goodwill, financial instruments and cash or non-prescribed payments over ten thousand rupees a day to a person are outside "expenditure of capital nature"; that the business must not be set up by splitting up or reconstruction or by transferring previously used plant or machinery beyond the twenty per cent tolerance; and that a hotel owner who transfers the operation of the hotel while continuing to own it is still deemed to carry on the specified business.
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