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Commissioner of Income Tax Delhi Versus M/s. Bhushan Steels and Strips Ltd And M/s. Vardhman Industries Ltd

Amount received by way of exemption of sales tax payments - trading receipt OR capital receipt hence not liable to tax? - Held that:- In the present case, the provisions of the original scheme (i.e. the original policy of 1990) and its subsidy scheme are relevant; they have quite correctly been relied upon by the revenue. Paras 6 (A) and 6(B) of that scheme specifically provided for capital subsidy to set up prestige units; the amounts indicated (Rupees fifteen lakhs) were to be towards capital .....

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e) was already set up. This subsidy scheme had no strings attached. It merely stated that the collection could be retained to the extent of 100% of capital expenditure. Whilst it might be tempting to read the linkage with capital expenditure as not only applying to the limit, but also implying an underlying intention that the capital expenditure would thereby be recouped, the absence of any such condition should restrain the court from so concluding. - How a state frames its policy to achiev .....

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had the flexibility of using it for any purpose. The absence of any condition towards capital utilization meant that the policy makers envisioned greater profitability as an incentive for investors to expand units, for rapid industrialization of the state, ensuring greater employment. Clearly, the subsidy was revenue in nature. - Decided against the assessee. - Whether the assessee was entitled to claim depreciation under Section 32 despite not owning the property or not being the owner and .....

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with Ms. Kavita Jha, Sh. Bhuwan Dhoopar and Ms. Roopali Gupta, Advocates. MR. JUSTICE S. RAVINDRA BHAT 1. The following common question arises in these batch of nine appeals arising from orders of the Income Tax Appellate Tribunal ( ITAT ) hereafter: Whether the ITAT was correct in law in holding that the amount received by the assessee by way of exemption of sales tax payments was not a trading receipt but was a capital receipt, hence not liable to tax? 2. The main order- in the case of the as .....

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ame industrial policy of the State of UP for 1990 as amended in 1991) are discussed from appeals arising out of the first order for AY 1995-96 (in Bhushan s case). 3. Bhushan was running the business of manufacture of cold rolled/galvanized steel strips and sheets etc. Its two units, namely, cold rolling, coal units and galvanized unit was located at Sahibabad (Distt. Ghaziabad - UP). The area was noticed as a backward area. The assessees Bhushan and Vardhman, claimed that in terms of Notificati .....

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tion on and w.e.f. 01.04.1990; the eligibility certificate in respect of these units effective from 07.03.1990 was issued by the Industries Department on 03.07.1992. In the batch of cases relating to the assessee Vardhman, the existing unit was expanded through a ghee manufacturing unit at Chhutmalpur, District Saharanpur, which commenced production on 20.09.1994. The assessees claimed that in terms of Notification No.STs.T.2-1093/11-7(42)/86-UP-Act-XV-48 Order-91 dated 27.07.1991 issued by the .....

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ailable up to a period of 8 years based in fixed capital investment. 4. As the units were located at Sahibabad (Dist. Ghaziabad and Saharanpur,) which was such a specified area, while filing the return of income, the grant of exemption given by the State Government through the said notifications with the object of promotion and development of industries was claimed by Vardhman. In Bhushan s case, it was not taken into consideration at the time of filing the original return, notwithstanding the f .....

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of Income Tax v Elys Plastics (1991)188 ITR 11) and the decision reported as Commissioner of Income Tax v P.J. Chemicals 210 ITR 830 (SC). However, the assessee s claim was not found accepted by the AO. In the order, the Assessing Officer (AO) made these observations:- (a) There is no doubt, that the amount of ₹ 7,27,71,570/- represents the income of the assessee company. This issue had already been settled finally by several judgements of the Hon‟ble Supreme Court of India (e.g. Cho .....

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ty, cess or fee, by whatever name called, under any law for the time being in force , can be allowed such sum is actually paid by the assessee. The assessee has admittedly not paid the amount of sales tax collection to the State Govt. (c) The assessee‟s assertion that it is entitled to claim deduction in view of subsidy by virtue of notifications issued by the State a Govt. does not help its case as, provisions of Sec.43-B are clear and non ambiguous as well as overriding in nature. (d) Th .....

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was set up in a backward area, notified by the Central Govt. for the purpose of benefit under provisions of Chapter VI-A of Income-tax is necessary at this state as the issue concerning assessee‟s claim is clearly covered by section 43-B of the Act. 5. On appeal, the CIT(A) allowed the assessee s claim. The CIT(A) held that the amount of sales tax collected as incentive for setting up industries in backward areas was not subject to tax as a trading receipt; but rather was to be towards es .....

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rtain districts and parts of the districts in particular . The purpose behind such notification was the development of industries in the state. Notification dated 27.7.1951 also specified the same purpose. The exemption/reduction of sales tax was to be computed on the basis of capital investment of the assessees. In other words, the incentive was given to the assessees to establish industrial unit in the specified areas. The State Govts. come out with similar schemes for promoting the industries .....

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m paying the sales collected to the extent of qualified amount. It will not be out of place to mention that the amount of sales tax collected exceeding the computed amount, the assessee was liable to pay such excess sales tax so collected. In this connection, we feel it expedient to consider the decision of the Hon‟ble Supreme Court in the case of Sawhney Steels & Press Works Ltd. reported in 228 ITR 253. The Hon‟ble Supreme Court in this case decided that if the moneys are given .....

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d areas. The purpose of the Govt in granting subsidy is clear from the preamble portion of the two notifications under which the appellant company became entitled to exemption in respect of sales tax amount. 22. Though the subsidy/grant allowed by the Govt. appears to be in the nature of exemption/reduction in the amount of sales tax payable by the appellant company, actually, however, the sales tax amount is simply a measurement of the subsidy to be allowed by the State Govt. The subsidies are .....

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essive of the character (if the payment and not the method of the payment or its measure that makes it fall within capital or revenue. Hon‟ble Supreme Court in the case of PJ Chemicals Ltd. (supra) held that where the government subsidy is intended as an incentive to encourage entrepreneurs to move to backward areas and establish industries, the specified percentage of the fixed capital cost which is the basis for determining the sales being only a measure adopted under the scheme to quant .....

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e that assessee took certain loans from the government financial institution for expansion of factory considerably by way of increasing per day crushing capacity. The Hon‟ble Court held that though the subsidy was in the form of realization of certain additional sale proceeds and in that way looked like trading receipts actually, however, it was of the nature of an incentive allowed by the state government for the purpose of expansion of capacity of the mill of the assessee and in that way .....

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a). In view of these facts, we have no hesitation in holding that the amount received by the assessee by way of exemption of sales tax payment, was not a trading receipt and, therefore, the CIT(A) has rightly held that the amount received by the assessee was capital receipt and not liable to tax up to the limits computed in accordance with the notification of the state government. While upholding the finding of the CIT(A), we dismiss the ground of appeal raised by the revenue. 23. In the result, .....

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Ltd. v. Commissioner of Income Tax: 1997 (228) ITR 253(SC) 8. The counsel analyzed various provisions of the Uttar Pradesh (UP) subsidy scheme to say that the earlier scheme of 1982 was expanded in 1985 to promote industrial development in the State. Thereafter, in the year 1990, various elements of the existing scheme were subsumed and a new subsidy regime for industrial promotion was evolved. This envisioned various incentives to new units that were to be encouraged in certain parts of the St .....

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case had sought advantage in terms of the expanded or enlarged provisions of the existing 1990 scheme. It is pointed out that as a consequence, both the provisions of the old scheme as amended in 1991 were to be looked into. 9. Learned counsel for the revenue highlighted that the provisions of the scheme, especially the ones that confer advantages upon the assessee did not require it to utilize the funds collected and retained, which made the products economically viable during the formative yea .....

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mic viability and profitability of the unit. In other words, by allowing the unit to collect sales tax, but not have the corresponding obligation of passing it over to the revenue, the State permitted augmentation of the assessee s income. No strings were attached to the effect that equipment or any other capital expenditure had to be incurred. 10. Learned counsel relied upon the observations of the Supreme Court in Sahney Steel (supra) to state that payments in the nature of subsidy from public .....

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eys had to be treated as having received for capital purposes. Conversely, if moneys were given to the assessee for assisting it in carrying on business operations and if the money was given only after and conditional upon production, subsidies had to be treated as assistance for the purpose of the trade. 11. It was stated that there are two strong reasons for this Court to follow the rule in Sahney Steel (supra). One is that, like the enunciation of the principle, the purpose for the grant of t .....

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ted, were by way of revenue receipts. 12. It was submitted that the judgment of the Supreme Court in Commissioner of Income Tax v. Ponni Sugars & Chemicals [2008] 306 ITR 392 (SC) in no way detracts from the rule recognized in Sahney Steel (supra). Learned counsel points out that Ponni Sugars (supra) held that the test applicable is the character of the receipt in the hands of the assessee, which is determinable with respect to the purpose for which the subsidy is given. The point at which t .....

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, on the other hand, the object of the subsidy scheme was to enable the assessee to run the business more profitably, then the receipts were on the revenue account. 13. It was submitted that in the present case the encouragement to enterprises through the incentive granted by the scheme was to set up a new business or expanding it in the backward area concerned. It no way conditioned the enterprise, to recoup the capital. The expansion of the unit meant that the expenditure had to be incurred by .....

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rea of Uttar Pradesh aimed at greater growth and higher levels of employment. Therefore, the impugned decision is clearly contrary to law. 14. It was argued on the assessee s behalf that its cold rolled unit went into production on 03.01.1990 and commenced sales from 07.03.1990. This unit was eligible for incentive in the form of sales tax exemption under the earlier notification of 29.01.1985 which had extended the existing Government Order of 30.09.1982. The incentive available to the newly es .....

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units in the State. It was submitted that the 1990 scheme was amended so as to expand its ambit to existing units if they expanded their capacity. The assessee then set up a new galvanizing unit by way of expansion of its existing business that went into production from January, 1994 and was eligible for incentive in the form of sales tax exemption. The incentive for this diversification or expansion was in the form of sales tax exemption for 8 years limited to 100% of the fixed capital investm .....

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s stated that assistance in the form of subsidy or grant or cash incentive or duty drawback or waiver by Central or State Governments or any authority in cash or kind to the assessee other than subsidy or grant or reimbursement which is taken into account determining the actual cost of the asset, is deemed to be income. It was submitted that this amendment clarifies the intent of Parliament which is that the assistance received otherwise than towards capital augmentation or creation is deemed to .....

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actory expanded its operations and the expanded unit was entitled to incentive irrespective of whether the setting up of the unit or expansion of the unit was financed out of borrowed funds. It was held by the Court that the amounts received were not by way of revenue subsidy but for augmenting the capital expenditure incurred. Learned counsel also relies upon subsequent judgment of the Supreme Court in Commissioner of Income Tax v. Shree Balaji Alloys 2016 (287) CTR 459 (SC) which affirmed the .....

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e Tax vs. Bougainvilla Multiplex Entertainment Centre Pvt. Ltd. (2015) 373 ITR 14. There too, the Court held that subsidy given at the point of time after the commencement of production did not mean that the State ruled out capital utilization of the funds received. On the other hand, the very concept of grant of subsidy meant that the assessee was free to use it either to augment its profit or to recoup its capital. Therefore, the purpose test in this case had to be interpreted in the manner it .....

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es, it would be necessary to extract the relevant parts of the supplementary notification dated 27.07.1991 issued by the State of UP, in the present case. The subsidy indicated, together with the preamble to the scheme, reads inter alia as follows: ST-II-1093/XI-7(42)-86-UP Act-XV/48-Order-91, dt. 27.07.1991 (Gazette dt. 27.7.1991) WHEREAS the State Government is of the opinion that for promoting the development certain industries in the State, it is necessary to grant exemption from or reductio .....

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ate of starting production‟ whereof falls or after first day of April, 1990 but not later than 31st day of March, 1995, no tax shall be payable, or, as the case may be, the tax shall be payable at the reduced rates, as specified in column 4 of Annexure I, by the manufacture thereof on the turnover of sales of such goods, for the period specified in column 3 of the said Annexure I, or till the maximum amount of tax relief by such exemption from or reduction in the rate of tax as specified i .....

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n March 31, 1995, in the areas mentioned in Column 2 of Annexure I, not tax shall be payable or, as the case may be, the tax shall be payable at the reduced rates specified in Column 4 of Annexure I, by the manufacturer thereof for the period in Column 3 of the said Annexure I, or till the maximum amount of tax relief by such exemption from or reduction in rate of tax as specified in Column 5 of Annexure I is achieved, whichever is earlier, on the turnover of sales. ANNEXURE - I S. No. Location .....

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um area) Allahabad (excluding the area in south of Rivers Jamuna & Confluent Ganga but including the area included under Nagar Mahapalika, Allahabad) Bareilly, Bijore, Firozabad (Taj Trapezium Area) Ghaziabad, Gorakhpur, Haridwar, Kanpur (Nagar), Lakhmpur-Kheri, Lucknow, Maharajganj, Meerut, Mirzapur, Muzzaffarnagar, Saharanpur, Sonbhadra and Varanasi Eight 1st year years 2nd year 3rd year 4th year 5th year 6th year 7th year 8th year NIL NIL NIL NIL NIL 10% NIL 30% NIL 40% NIL 60% NIL 70% NI .....

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e relied on the following parts of that scheme, which too applied, according to its submission: STATE CAPITAL SUBSIDY SCHEME A. No capital subsidy shall be due to the unit having fixed capital investment of more than ₹ 5 crore. B. The aforeasaid units shall also be eligible for facilities under the scheme on 25% or more expansion/modernization with this restriction that the amount of entire grant received under the scheme shall not be more than the maximum admissible amount mentioned in pa .....

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lary units for the supply of requirement of more than 30% of its own purchased parts and components, then the further additional special capital subsidy of ₹ 15 lakh shall be available to it. This scheme shall be applied with effect from 1.4.90 and the facility of subsidy shall not be admissible in the district under the scheme, where any unit of the capital investment of ₹ 25 crore has already been established prior to 1.4.90. 6 (B) :Special State Capital Subsidy to the Tehsil Level .....

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#8377; 10 lakh shall be available to it. This scheme shall be applied with effect from 1.4.90 and the facility of raw material shall not be admissible in the district under the scheme, where any unit of the capital investment of ₹ 5 crore has already been established prior to 1.4.90. 20. Predictably, the rival positions of parties are that according to the revenue, the amounts retained were not towards capital subsidy, but were revenue or trade subsidies, to ensure greater profitability. T .....

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nesh that the subsidies were of capital nature and were given for the purpose of stimulating the setting up and expansion of industries in the State cannot be upheld, because of the subsidy scheme itself. No financial assistance was granted to the assessee for setting up of the industry. It is only when the assessee had set up its industry and commenced production that various incentives were given for the limited period of five years. It appears that the endeavour of the State was to provide th .....

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14 ITR (Suppl.) 45, 47; [1946] 28 TC 261 (HL) in the following words (page 278): The first proposition is that, subject to the exception hereafter mentioned, payments in the nature of a subsidy from public funds made to an undertaker to assist in carrying on the undertaker‟s trade or business are trading receipts, that is, are to be brought into account in arriving at the balance of profits or gains under Case I of Schedule D. It is sufficient to cite the decision of this House in the suga .....

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TC 103, at page 117) and compare what Lord Macmillan said in Municipal Mutual Insurance Ltd. v. Hills [1932] 16 TC 430, at page 448. In the instant case, the first proposition of Viscount Simon clearly applies. The amount paid to the assessee in the instant case is in the nature of subsidy from public funds. The funds were made available to the assessee to assist it in carrying on its trade or business. In our view, having regard to the scheme of the notification, there can be little doubt that .....

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mployment who would otherwise have lost their jobs. Money was given in several instalments as the work of extension of the dock continued. Money was given for the express purpose which was named. It was found by the House of Lords that it had nothing to do with the trading of the company. In the case before us, payments were made only after the industries have been set up. Payments are not being made for the purpose of setting up of the industries. But the package of incentives were given to the .....

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. It is true that the assessee could not use this money for distribution as dividend to its shareholders. But the assessee was free to use the money in its business entirely as it liked and was not obliged to spend the money for a particular purpose like extension of docks as in the Seaham Harbour Dock Co.‟s case [1931] 16 TC 333 (HL). ************* ************** That precisely is the question raised in this case. By no stretch of imagination can the subsidies whether by way of refund of .....

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us, the subsidies have not been granted for production of or bringing into existence any new asset. The subsidies were granted year after year only after setting up of the new industry and commencement of production. Such a subsidy could only be treated as assistance given for the purpose of carrying on of the business of the assessee. Applying the test of Viscount Simon in the case of Ostime [1946] 14 ITR (Suppl) 45 (HL), it must be held that these subsidies are of revenue character and will ha .....

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has to be determined with respect to the purpose for which the subsidy is given. In other words, in such cases, one has to apply the purpose test. The point of time at which the subsidy is paid is not relevant. The source is immaterial. The form of subsidy is immaterial. The main eligibility condition in the scheme with which we are concerned in this case is that the incentive must be utilized for repayment of loans taken by the assessee to set up new units or for substantial expansion of existi .....

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incentive subsidy. The form or the mechanism through which the subsidy is given are irrelevant. One more aspect needs to be mentioned. In Sahney Steel and Press Works Ltd. this court found that the assessee was free to use the money in its business entirely as it liked. It was not obliged to spend the money for a particular purpose. In the case of Seaham Harbour Dock Co. the assessee was obliged to spend the money for extension of its docks. This aspect is very important. In the present case al .....

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ct of providing subsidy by way of permission to not deposit amounts collected (as sales tax liability)- which meant that the customer or servicer user concerned had to pay sales tax, but at the same time, the collector (i.e. the assessee) could retain the amount so collected, undoubtedly was to achieve the larger goal of industrialization. The achievement of a quantitative limit (of 125% of capital expenditure in the case of small scale units and 100% in the case of other units) meant that the s .....

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therefore, have to actually deal with figures or create a slab or graded subsidy. This, according to the revenue, meant that the amounts retained could be spent for any purpose, not necessarily capital. It was lastly submitted that the subsidy operated only after expansion, i.e. after the capital expenditure was incurred and capacity expanded. 24. Both parties have used different passages from Sahnay Steel (supra) and Ponni Sugars (supra). In the former, the court was persuaded to hold that the .....

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found that the assessee was free to use the money in its business entirely as it liked. It was not obliged to spend the money for a particular purpose. In the case of Seaham Harbour Dock Co. the assessee was obliged to spend the money for extension of its docks. This aspect is very important. In the present case also, receipt of the subsidy was capital in nature as the assessee was obliged to utilize the subsidy only for repayment of term loans undertaken by the assessee for setting up new unit .....

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ly it contained specific provisions that enabled capital subsidies. Whether the assessees were entitled to it, or not, is not relevant. The assessees are now concerned with the sales tax amounts they were permitted to retain, under the amended scheme (dated 27.07.1991) which allowed the facility of such retention, after the unit (established and which could possibly claim benefit under the first scheme) was already set up. This subsidy scheme had no strings attached. It merely stated that the co .....

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ius of its representatives. Therefore, to say that the indication of the limit of subsidy as the capital expended, means that it replenished the capital expenditure and therefore, the subsidy is capital, would not be justified. The specific provision for capital subsidy in the main scheme and the lack of such a subsidy in the supplementary scheme (of 1991) meant that the recipient, i.e. the assessee had the flexibility of using it for any purpose. Unlike in Ponni Sugars (supra), the absence of a .....

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