Parikh Shankarlal Kundanmal, Kolhapur V. Assistant Commissioner of Income-tax, Ichalkaranji Circe, Ichalkaranji

MA 79/PUN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5263 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 27-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Capital receipt
• Section: 80IA

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM M A NO S . 77 TO 80 /P U N/201 8 ARISING OUT OF ITA NO S . 733 TO 736 / P U N/201 7 ASSESSMENT YEAR S : 2004 - 05 TO 2006 - 07 & 20 0 9 - 1 0 PARIKH SHANKARLAL KUNDANMAL, 9/439 - 8 - B, STATION ROAD, ICHALKARANJI, DIST. - KOLHAPUR . APPLICANT PAN: ABIPP0423H VS. THE ASST. COMMISSIONER OF INCOME TAX, ICHALKARANJI CIRCLE, ICHALKARANJ I . RESPONDENT APPLICANT BY : SHRI M.K. KULKARNI RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 2 6 . 0 7 .201 9 / DATE OF PRONOUNCEMENT: 20 . 0 8 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE SE FOUR MISCELLANEOUS APPLICATION S HA VE BEEN FILED BY THE APPLICANT AGAINST THE CONSOLIDATED ORDER OF TRIBU NAL RELATING TO ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 AND 2009 - 10, DATED 31.05.2018. 2. THE TRIBUNAL HAD DECIDED THE ISSUE OF ALLOWABILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IA OF THE ACT I.E. SUBSIDY RECEIVED BY APPLICANT IN TURN, RELYING ON THE DECISIO N OF PUNE BENCH OF TRIBUNAL IN M/S. PATANKAR WIND FARM PVT. LTD. VS. DCIT IN ITA NO.169/PUN/2016, RELATING TO ASSESSMENT YEAR 2003 - 04, ORDER DATED 2 M A NO S . 77 TO 80 /P U N/201 8 22.12.2017 AND HON'BLE SUPREME COURT IN CIT VS. MEGHALAYA STEELS LTD. REPORTED IN 383 ITR 217 (SC), AS PER PA RA 17 OF THE SAID ORDER. 3. THE APPLICANT IS AGGRIEVED BY THE SAID DECISION OF TRIBUNAL AND HAS POINTED OUT THAT A MISTAKE OF LAW HAD ARISEN WHILE DECIDING THE ISSUE AGAINST APPLICANT , IN TURN, RELIANCE IS PLACED ON THE DECISION OF HON'BLE SUPREME COURT I N CIT VS. CHAPHALKAR BROTHERS (2018) 400 ITR 279 (SC). THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT POINTS OUT THAT THE SAID ISSUE OF SALES TAX SUBSIDY NOW HAS TO BE TREATED AS CAPITAL RECEIPT IN THE HANDS OF APPLICANT. HE VEHEMENTLY RELIED ON THE SAID DECISION OF HON'BLE SUPREME COURT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT WAS ASKED TO EXPLAIN THE SCHEME WHICH WAS BEFORE THE HONBLE APEX COURT IN CIT VS. CHAPHALKAR BROTHERS (SUPRA). HE WAS ALSO ASKED TO EXPLAIN AS TO THE ST ATUS OF APPEAL FILED AGAINST ORDER OF TRIBUNAL BEFORE THE HONBLE HIGH COURT IN SERIES OF CASES, WHICH HAD DECIDED THE SCHEME PREVALENT IN MAHARASHTRA STATE. HOWEVER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT COULD NOT POINT OUT THE SAME. 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE BEFORE THE HON'BLE SUPREME COURT IN CIT VS. CHAPHALKAR BROTHERS (SUPRA) WAS IN RESPECT OF MULTIPLEX THEATRE COMPLEX, WHEREAS THE PRESENT SCHEME IS IN RESPECT OF ESTABLISHM ENT OF WINDMILL AND THE TWO SCHEMES WE RE VERY DIFFERENT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE FIND NO MERIT IN THE CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT AFTER GOING THROUGH THE ORDER OF TRIBUNA L, WHERE THE ISSUE WAS IN RESPECT OF SCHEME OF MAHARASHTRA STATE PROMULGATED FOR THE BENEFIT OF PERSONS CARRYING ON THE BUSINESS OF WINDMILL. THIS ISSUE WAS ALSO DECIDED BY PUNE BENCH OF TRIBUNAL IN 3 M A NO S . 77 TO 80 /P U N/201 8 EARLIER DECISION, AGAINST WHICH APPEAL HAS BEEN FILED BE FORE THE HONBLE HIGH COURT, WHICH IS PENDING FOR DISPOSAL. THE HON'BLE SUPREME COURT IN CIT VS. CHAPHALKAR BROTHERS (SUPRA) HAD DECIDED THE ISSUE WITH REGARD TO THE SCHEME, UNDER WHICH SUBSIDY WAS GIVEN FOR ESTABLISHMENT OF MULTIPLEX THEATRES. SINCE THE TWO SCHEMES ARE AT VARIANCE, WE FIND NO MERIT IN THE PLEA OF APPLICANT AND CONSEQUENTLY, WE DISMISS ALL THE FOUR MISCELLANEOUS APPLICATIONS FILED BY THE APPLICANT. 6 . IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S OF APPLICANT ARE DISMISSED . ORDER PR ONOUNCED ON THIS 20 TH DAY OF AUGUST , 201 9 . SD/ - / - (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 20 TH AUGUST , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - 2 , KOLHAPUR ; 4. THE PR. CIT - 2 , KOLHAPUR ; 5. THE DR SMC , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE