Oil and gas companies have been bamboosled by an observation in the Memorandum and the Notes on Clauses accompanying the Finance Bill, 2008, says Mr Pritin Kumar, Senior Manager, Deloitte Haskins and Sells, Mumbai. And, at the core of their problem is ‘mineral oil.’
Oil and gas companies engaged in exploration and production activities are currently entitled to claim 100 per cent tax holiday for a period of seven years under Section 80-IB of the Income-tax Act, 1961; this tax holiday is the subject matter of the controversy, elaborates Mr Pritin.
“The tax holiday for oil and gas companies under Section 80-IB is available for commercial production or refining of ‘mineral oil.’
The term ‘mineral oil’ has not been defined in Section 80-IB; however, in other sections, notably Sections 42, 44BB and 293A, ‘mineral oil’ has been defined to include petroleum and natural gas,” he explains, in an e-mail exchange with Business Line, post-Budget. “Now, the Finance Bill, 2008 proposes to withdraw the tax holiday under Section 80-IB for oil and gas companies engaged in refining activities if such activities commence on or after
Excerpts from the interview.
What does the Bill say?
An observation in the Memorandum and the Notes on Clauses to the Finance Bill reads thus: “For the purpose of this section, the term ‘mineral oil’ does not include petroleum and natural gas, unlike in other sections of the Act.”
Implications?
The observation has far-reaching implications because it seems to indicate that natural gas may not qualify for the tax holiday.
Today, oil and gas companies are claiming the tax holiday on their entire profits without excluding profits attributable to, say, natural gas.
In some cases, the Assessing Officers were denying a portion of the benefit of the tax holiday attributable to natural gas.
Has the industry been opposing such denial of benefit?
The Petroleum Federation of India had taken up this issue and had made a representation to the Government on the disallowance of deduction under Section 80-IB for lack of clarity on inclusion of petroleum and natural gas in the definition of mineral oil.
Unfortunately, this appears to have backfired, and so the oil and gas industry has an uphill task ahead.
How would you define ‘mineral oil’?
From a commercial perspective, the term mineral oil is used to indicate oil obtained from below the earth, as distinguished from edible oil that is obtained from plants.
The mineral oil below the earth is in the form of hydrocarbons – the heavier hydrocarbons are in the nature of crude oil and the lighter hydrocarbons are in the nature of natural gas. Drilling at an oil field may yield crude oil, natural gas or a combination of both.
Are there official definitions of the phrase?
The Petroleum Tax Guide, 1999 published by the Ministry of Petroleum and Natural Gas clarifies that, under Section 80-IA (corresponding benefit now available under Section 80-IB), PSC (production sharing contract) participants who begin commercial production of petroleum in any part of India on or after April 1, 1997 shall be entitled to claim deduction of 100 per cent of their profits and gains derived from such business.
The term ‘petroleum’ has been defined in the Tax Guide to mean crude oil and/or natural gas existing in their natural condition but excluding helium occurring in association with petroleum or shale. This indicates the intention of the Government to grant the tax holiday to petroleum and natural gas.
It is also pertinent to note that the Oilfields (Regulation and Development) Act, 1948 defines the term ‘mineral oils’ to include natural gas and petroleum.
Any case law on the subject?
The Calcutta Tribunal in the case of DCIT vs Shlumberger Seaco Inc [1995] (51 TTJ 72), referred to an opinion of the Attorney General dated May 13, 1990 wherein the conclusion reached was that petroleum and natural gas are mineral oils and the activity of prospecting for or extraction of the same can be called a mining activity.
So, what’s your counsel to the baffled companies?
The observation that ‘mineral oil’ does not include petroleum appears to be misplaced as in the absence of petroleum being entitled to the tax holiday, the entire benefit of deduction under Section 80-IB would be of no avail.
Oil and gas companies engaged in exploration and production activities should accordingly not lose heart, as the Petroleum Tax Guide issued by the Ministry of Petroleum and Natural Gas and the Attorney General’s opinion referred to in Shlumberger’s case clearly support the case that natural gas is mineral oil and should accordingly qualify for the tax holiday.
Moreover, there is no specific amendment in Section 80-IB to exclude natural gas from the purview of the tax holiday.
However, this is the beginning of prolonged litigation, which shall ultimately have to be addressed and decided by the courts.
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