Klaus Multiparking System Pvt.Ltd, Pune V. Income tax Officer, Pune

ITA 498/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5536 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 498 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 KLAUS MULTIPARKING SYSTEM PVT. LTD., 5/3, PRASHANT APARTMENTS, B/H KARVE ROAD, TELEPHONE EXCHANGE, ERANDWANE, PUNE 411004 PAN : AACCK3868R ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 14(1), PUNE / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 1 8 - 03 - 2019 / DATE OF PRONOUNCEMENT : 03 - 06 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 7, PUNE DATED 21 - 11 - 2016 FOR THE ASSESSMENT YEAR 20 12 - 13. 2. SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE SOLITARY ISSUE IN THE APPEAL IS AGAINST THE FINDINGS OF 2 ITA NO .498/PUN/2017, A.Y. 2012 - 13 COMMISSIONER OF INCOME TAX (APPEALS) IN UPHOLDING THE INCENTIVE RECEIVED BY THE ASSESSEE UNDER INDUSTRIAL PROMOTION SUBSIDY SCHEME, 2007 INTRODUCED BY STATE OF MAHARASHTRA AS REVENUE RECEIPTS. T HE LD. AR SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) IS AN EX - PARTE PROCEEDINGS, WITHOUT APPRECIATING THE FACTS AND LAW HAS UPHELD THE FINDINGS OF ASSESSING OFFICER IN HOLDING THE SUBSIDY RECEIVED BY ASSESSEE AS REVENUE RECEIPT. 2.1 THE LD. AR SUBMITTED THAT THE ASSESSEE HAS BEEN RECEIVING SUBSIDY FROM THE STATE GOVERNMENT UNDER THE PACKAGE SCHEME OF INCENTIVES, 2007 IN THE PAST. THE ASSESSEE HAS BEEN CLAIMING SUBSIDY AS CAPITAL RECEIPT. IN SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER HELD THE SUBSIDY AS REVENUE RECEIPT AND THE COMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE FINDINGS OF ASSESSING OFFICER. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL IN ITA NOS. 308 & 309/PUN/2017 FOR THE ASSESSMENT YEARS 2010 - 11 AND 2011 - 12, RESPECTIVELY. THE TRIBUNAL VIDE ORDER DATED 27 - 04 - 2018 HELD THE AFORESAID SUBSIDY AS CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE. THE ISSUE IN THE PRESENT APPEAL IS IDENTICAL TO THE ONE ALREADY ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. THE SUBSIDY SCHEME AND THE FACTS IN THE ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL. 3. ON THE OTHER HAND SHRI PANKAJ GARG REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ONE ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 (SUPRA). 3 ITA NO .498/PUN/2017, A.Y. 2012 - 13 4. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PE RUSED. THE ONLY ISSUE RAISED BY THE ASSESSEE IN APPEAL IS AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ASSESSMENT ORDER HOLDING THE INCENTIVE RECEIVED BY ASSESSEE UNDER INDUSTRIAL PROMOTION SUBSIDY SCHEME, 2007 AMOUNTING TO RS.26,49,450/ - AS REVENUE RECEIPT CHARGEABLE TO TAX . WE FIND THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2010 - 11 AND 2011 - 12 SIMILAR ADDITIONS WERE MADE BY THE ASSESSING OFFICER HOLDING THE SUBSIDY RECEIVED BY THE ASSESSEE UNDER INDUSTRIAL PROMOTION SUBSIDY SCHEME. THE TRIBUNAL IN APPEALS BY THE ASSESSEE IN ITA NOS. 308 & 309/PUN/2017 (SUPRA) AFTER CONSIDERING THE FACTS OF THE CASE , AND ON THE DECISION OF TRIBUNAL IN THE CASE OF INNOVENTIVE INDUSTRIES LTD. VS. DCIT IN ITA N O. 601/PN/2013 FOR ASSESSMENT YEAR 2009 - 10 DECIDED ON 24 - 03 - 2017 HELD THAT THE SUBSIDY RECEIVED BY THE ASSESSEE UNDER THE PACKAGE INCENTIVE SCHEME, 2007 IS CAPITAL RECEIPT IN THE HANDS OF ASSESSEE. THE OPERATIVE PART OF THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS IS REPRODUCED HERE - IN - BELOW : 17. THE ISSUE ARISING BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN INNOVENTIVE INDUSTRIES LTD. VS. DCIT (SUPRA) AND THE ASSESSEE HAD RECEIVED INCENTIVE / SUBSIDY FROM T HE STATE GOVERNMENT FOR SETTING UP THE PROJECT IN THE CLASSIFIED AREA. HENCE, WE HOLD THAT SUBSIDY RECEIVED BY THE ASSESSEE UNDER PSI, 2007 IS CAPITAL RECEIPT IN THE HANDS OF ASSESSEE. ACCORDINGLY, WE DELETE THE ADDITION OF 26,37,000/ - . THE GROUNDS OF AP PEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 5. THE LD. DR HAS FAIRLY ADMITTED THAT THE FACTS IN ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL TO THE FACTS IN ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE BY T HE DEPARTMENT. THEREFORE, WE FIND NO REASON TO TAKE A DIFFERENT VIEW. RESPECTFULLY FOLLOWING THE ORDER OF CO - ORDINATE BENCH OF TRIBUNAL , WE HOLD THAT THE SUBSIDY RECEIVED BY THE ASSESSEE UNDER INDUSTRIAL PROMOTION 4 ITA NO .498/PUN/2017, A.Y. 2012 - 13 SUBSIDY SCHEME, 2007 IS CAPITAL RECEIPT , NOT LIABLE TO BE TAXED IN THE HANDS OF ASSESSEE. ACCORDINGLY, THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE REVERSED AND THE APPEAL OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON MONDAY, THE 03 RD DAY OF JUNE, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 03 RD JUNE, 2019. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 7, PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 6, PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE