TMI Blog2018 (5) TMI 1979X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on such income - CIT(A) has rightly exercised his jurisdiction in entertaining the additional grounds of exclusion of capital subsidy received by way of sales tax remission under the West Bengal Incentive Scheme 1999 during the year under consideration. Sales tax subsidy received by the assessee from West Bengal Government was in the nature of capital receipt and therefore not liable to tax under the deeming provisions of section 115JB of the Act. - ITA. No. 157/Kol//2017 - - - Dated:- 31-5-2018 - Shri P.M.Jagtap, AM AND Smt. Madhumita Roy, JM For the Appellant : Shri P.K.Srihari, CIT For the Respondent : Shri D.S.Damle, FCA ORDER PER MADHUMITA ROY, JM: The instant appeal has been preferred by the Revenue against the order dated 17.11.2016 passed by the Commissioner of Income Tax-(A)-10, Kolkata arising out of an order dated 16.12.2011 passed by the Ld. Addl. Commissioner of Income Tax, Range-10, Mumbai u/s 143(3) of the Income Tax Act, 1961 (Act) (hereinafter referred to as the Act ) for the A.Y.2008-09 with the following grounds :- 1. On the facts and circumstances of the Case whether the Id. CIT(A) was correct in not giving a clear cut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NC- 1999(128)/General/991 to the Eligibility Certificate. The relevant portion thereof is as follows :- We are sending herewith eligibility certificate bearing no.INC(99)/EC-87(B) dated 4th June 2002 under W.B. Incentive Scheme, 1999 for the following incentives :- a) Sales Tax Remission : Remission of Sales Tax for a period of 11 (eleven) years from the date of commencement of production of the expansion unit subject to a ceiling of 125% of the gross value of the fixed capital assets of the approved project as per clause 10.1.1(ii), 10.1.6 and 10.1.7 of the scheme, subject to ceiling of ₹ 75.00 crore as per clause 10.17. 3. The ld. CIT(A) requested the ld. AO to send his observations and objections of the admissibility of the additional grounds in response thereof the AO has raised his objection that the assessee raised the said issue for the first time that it has received capital subsidy of ₹ 40,44,40,974/- by way of sales tax remission under the West Bengal Incentive Scheme 1999 and therefore not taxable under the Income Tax Act, 1961, such provision is not available under the said Act. The AO further added that the assessee neither filed any revised retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Co-ordinate bench of this ld. Tribunal in the case of DCIT vs Ramesh Chandra Kedia in ITA No.2072/Kol/2007 where the Ld. Tribunal held that the CIT(A) was justified in entering new claim for exemption in respect of gain realized on transfer of the agricultural land. 6. We have heard the ld. Counsels appearing for the parties. We have perused the materials available on records. The ld. Tribunal considering the judgment of the Hon ble Supreme Court in National Thermal Power Co.Ltd. vs CIT (229 ITR 383), Jute Corporation of India vs CIT (187 ITR 688) both passed by the Hon ble Supreme Court as well as order passed by the Hon ble Calcutta High Court in the case of Mayank Poddar HUF vs CWT (262 ITR 633) held in favour of the assessee by observing that if in law the assessee was not liable to be assessed on capital gains arising on transfer of agricultural land then the assessee s claim for its non assessability cannot be denied merely because in the return filed the assessee had mistakenly offered to pay tax on such income. It appears that the ratio laid down in the above judgments have decided the matter once for all. These judgements affirm the jurisdiction of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late proceedings the ld. CIT(A)-4 for A.Y.2009-10 and 2010-11 in Appeal No.976/CIT(A)-4/14-15 and Appeal No.1132/CIT(A)-4/14-15 respectively taking into consideration of the facts of the case the judicial precedents on this issue held that the sales tax subsidy received by the assessee from West Bengal Government was in the nature of capital receipt and therefore not liable to tax under the deeming provisions of section 115JB of the Act. 6.2. The Co-ordinate Bench of this Tribunal in the appeal against the order passed by the appellate authority for A.Y.2009-10 preferred by the Revenue in assessee s own case reiterated the same view in favour of the assessee dismissing the said appeal with the following observations : 5.We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the solitary issue involved in this appeal of the Revenue relating to the assessee's claim for exclusion of sales tax subsidy on the ground that it is capital receipt not chargeable to tax is squarely covered in favour of the assessee, inter alia, by the decision of the Hon'ble Calcutta High Court in the case of CIT -vs.- Rasoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
