GRASIM BHIWANI TEXTILES LTD, V. ASST CIT CIR 4(2),

MA 305/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0335 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 14-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ARJAMIA
• Keywords: Capital receipt
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI MAHAVIR SINGH , JM M A NO. 305 / MUM/20 16 (ARISING OUT OF ITA NO.791/MUM/2014 ( ASSESSMENT YEAR : 2010 - 11 ) M/S. GRASIM BHIWANI TEXTILES LIMITED, 409, COTTON EXCH ANGE BUILDING KALBADEVI ROAD, MUMBAI 400 002 VS. ACIT, CIRCLE 4(2) MUMBAI PAN/GIR NO. AACCG9347F APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI MADHUR AGARWAL REVENUE BY SHRI CHAITANYA ARJAMIA DATE OF HEARING 27 / 07 /201 8 DATE OF PRONOUNCEMENT 12 / 09 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS M.A. AROSE OUT OF ITA NO.791/MUM/2014. 2. IT WAS POINTED OUT BY LEARNED AR THAT ADDITIONAL GROUND WAS RAISED BY ASSESSEE IN BOTH THE ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 . H OWEVER, THE TRIBUNAL DID NOT DECIDE THE ADDITIONAL GROUND RAISED IN A.Y.2010 - 11 WHILE DISPOSING THE ABOVE APPEAL S VIDE ORDER DATED 31/05/2016. 3. LEARNED AR MR. MADHUR AGARWAL CONTENDED THAT THE ASSESSEE HAD TAKEN AN ADDITIONAL GROUND FOR THE ASSESSME NT YEAR 2010 - 11 VIDE ITS LETTER DATED 30.09.2015. IN THIS GROUND ASSESSEE HAS SUBMITTED THAT M A NO. 305/MUM/2016 M/S. GRASIM BHIWANI TEXTILES LTD., 2 TUF SUBSIDY OF RS. 325.94 LAKH IS CAPITAL RECEIPT AND, HENCE, NOT CHARGEABLE TO TAX AS INCOME OF THE ASSESSEE. 4. LEARNED AR ALSO INVITED OUR ATTENTION AT PARA 8 & 9 ON PAGE NO.5 TO 7 OF THE COMMON ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEARS 2009 - 10 AND 2010 - 11, WHEREIN THE TRIBUNAL HAS DISCUSSED AND DECIDED ADDITIONAL GROUND OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10, BUT HAS NOT CONSIDERED THE ADDITIONAL GRO UND FOR ASSESSMENT YEAR 2010 - 11. 5. LEARNED AR FURTHER CLARIFIED THAT THE APPEAL FOR ASSESSMENT YEAR 2009 - 10 IS AGAINST THE ORDER UNDER SECTION 154 DATED 05.11.2012 WHEREAS APPEAL FOR ASSESSMENT YEAR 2010 - 11 IS AGAINST THE ORDER UNDER SECTION 143(3) DATED 28.02.2013. THEREFORE, THE REJECTION OF THE ADDITIONAL GROUNDS BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 2009 - 10 ON THE GROUNDS THAT THE ADDITIONAL GROUND CANNOT BE RAISED IN THE RECTIFICATION PROCEEDINGS, WOULD NOT BE RELEVANT IN DECIDING THE APPLICATION OF THE ASSESSEE FOR THE ADDITIONAL GROUND FOR THE ASSESSMENT YEAR 2010 - 11. 6. ON MERITS, LEARNED AR SUBMITTED THAT THE ISSUE HAS ATTAINED FINALITY BY THE DECISION OF THE HON'BLE SUPREME COURT IN CIT V CHAPHALKAR BROTHERS PUNE [2018] 400 ITR 279 (SC). IN THAT CASE, THE HON'BLE SUPREME COURT HELD THAT SINCE OBJECT OF INCENTIVE SCHEMES WAS TO ENCOURAGE DEVELOPMENT OF MULTIPLE THEATRE COMPLEXES, INCENTIVES WOULD BE HELD TO BE CAPITAL IN NATURE AND NOT REVENUE RECEIPTS. ON SIMILAR LINES, THE OBJECT OF THE TUF SUBS IDY IS TO IMPROVE THE COMPETITIVENESS OF TEXTILE M A NO. 305/MUM/2016 M/S. GRASIM BHIWANI TEXTILES LTD., 3 INDUSTRY BY UPGRADING THE PLANT & MACHINERY. HENCE, THE TUF SUBSIDY SHOULD ALSO BE A CAPITAL RECEIPT. 7 . IN VIEW OF ABOVE, LEARNED AR SUBMITTED THAT THE TRIBUNAL ERRED IN NOT CONSIDERING AND DISPOSING OF THE ADDITIONAL GROUND OF THE ASSESSEE FILED VIDE LETTER DATED 30.09.2015 FOR ASSESSMENT YEAR 2010 - 11 . 8 . WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATION AS WELL AS ORDER OF THE TRIBUNAL DATED 31/04/2016 AND FOUND THAT ADDITIONAL GROUND WAS RAISED BY ASSESS EE W ITH REGARD TO TREATMENT OF TUF SUBSIDY RECEIVED BY ASSESSEE FROM CENTRAL GOVERNMENT, WHETHER CAPITAL OR REVENUE RECEIPT BOTH IN THE A.Y.2009 - 10 & 2010 - 11. IN THE A.Y.2009 - 10 TRIBUNAL HAVE DEALT WITH THIS ADDITIONAL GROUND AND CONSIDERING THE FACT THAT ORDER WAS PASSED U/S.154, DISMISSED THE ADDITIONAL GROUND. HOWEVER, IN THE A.Y.2010 - 11 FACTS ARE DISTINGUISHABLE WHEREIN ASSESSMENT WAS FRAMED U/S.143(3) AND ASSESSEE HAS RAISED ADDITIONAL GROUND REGARDING TREATMENT OF TUF SUBSIDY. THIS ADDITIONAL GROUND R AISED IN THE A.Y.2010 - 11 WAS NOT DISPOSED BY THE TRIBUNAL WHILE PASSING THE ORDER WHICH AMOUNTS TO MISTAKE APPARENT FROM RECORD. ACCORDINGLY WE RECALL THE ORDER FOR A.Y.2010 - 11 WITH A LIMITED ISSUE OF DECIDING THE ADDITIONAL GROUNDS SO RAISED BY THE ASSESS EE. M A NO. 305/MUM/2016 M/S. GRASIM BHIWANI TEXTILES LTD., 4 9 . IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWED IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 / 09 /201 8 SD/ - ( MAHAVIR SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 12 / 09 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//