w w w . L a w y e r S e r v i c e s . i n



Birla Corporation Ltd. v/s Deputy Commissioner of Income-tax, Circle-6, Kolkata


Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

    IT Appeal Nos. 581 & 683 of 2011

    Decided On, 08 December 2014

    At, Income Tax Appellate Tribunal Kolkata

    By, THE HONOURABLE MR. MAHAVIR SINGH
    By, JUDICIAL MEMBER & THE HONOURABLE MR. SHAMIM YAHYA
    By, ACCOUNTANT MEMBER

    For the Appellant: J.P. Khaitan, Sr. Advocate. For the Respondent: Ravi Jain, CIT, DR.



Judgment Text

Mahavir Singh, Judicial Member

1. These cross appeals by assessee and revenue are arising out of order of CIT(A)-VI, Kolkata in Appeal No. 861/CIT(A)-VI/Cir-6/Kol/2009-10 dated 28.02.2011. Assessment was framed by JCIT, Range-6, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2007-08 vide his order dated 31.12.2009.

2. The first common issue in these cross-appeals is as regards to the order of CIT(A) holding the sales tax incentives allowed by State Govt. at Rs. 12.38 lakhs as capital receipts but directing the AO to reduce the same from cost of fixed assets for the purpose of computing depreciation in view of the Explanation-10 to Sec. 43(1) of the Act. For this assessee has raised following ground No. 1 :–

"(1) That on the facts and circumstances of the case, the learned CIT(Appeals) though holding that Sales-tax incentive of Rs. 1238000 allowed by the State Govt. is the nature of capital receipt but erred in directing the Assessing Officer (AO) for reduce the same from the cost of Fixed Assets for the purpose of computing depreciation by applying the Explanation 10 of Sec. 43(1) of I.T. Act.

Revenue has raised following ground No.2:-

(2) That Ld. CIT(A)-VI Kolkata has erred in law as well as on facts by deleting the addition made by the AO on account of Sales Tax subsidy received by the assessee as revenue income of Rs.12,38, 000/-."

3. Briefly stated facts are that the assessee is engaged in the business of production of cement and its unit is at Chittorgarh, Rajasthan, which received sales tax subsidy under a scheme of the Rajasthan Government. The assessee claimed that an amount of Rs.12.38 lakhs was related to sales tax exemption granted by the State Government and therefore, being a capital receipt it should be excluded from sales for computing total income under the Act. The AO noted that normally for the units which do not enjoy such exemption the assessee reduces the sales tax component from sales and credits only such net of tax figure in the profit & loss account under sales account. But assessee explained that as per industry norms the billing is always made on FOR basis, which is inclusive of all taxes. In assessee's case they work out the sales tax component by back calculation method and credit gross sales figure as per billing in the account and claim the benefit of deduction in the computation of income directly without disclosing it as such in accounts. But AO was of the opinion that since the sales tax exemption was related to sales and was not specifically earmarked to purchase of any capital assets such subsidy should be treated as a revenue receipt. He also find that the assessee did not capitalize it either in the balance-sheet by creating a special reserve or reduced the value of written down value of block of business assets by this amount. The AO relied on the decision of Hon'ble Supreme Court in the case of Sahney Steel & Press Works Ltd. v. CIT [1997] 228 ITR 253/94 Taxman 368. Aggrieved, assessee preferred appeal before CIT(A).

4. Following the decisions of ITAT in assessee's own case for AYs 2001-02 to 2005-06 CIT(A) has held this subsidy amount as a 'capital receipt' as under:

"6.3 I have considered the submissions of Ld. AR of the assessee. From the details submitted it is seen that this subsidy has been received by the assessee under the Rajasthan Sales Tax Exemption Scheme of 1998. Under this scheme the assessee became eligible for this subsidy from 15.12.2003. Under this scheme the subsidy has been received during financial years 2003-04, 04-05 and 05-06, relevant to AYrs 2004-05, 05-06 and 06-07 also. This A.Yr 2007-08 is the 4th year in which the subsidy under this scheme of 1998 of the Rajasthan Govt. has been received. For A.Yrs. 2004-05 and 05-06 this issue has been decided in favour of the assessee by Hon'ble ITAT, Kolkata vide their order dtd. 27.05.2009 in ITA Nos. 1819 and 1820/Kol/2008. In these orders Hon'ble ITAT has held this subsidy as a capital receipt and not taxable as an income in the hands of the assessee. For A.Yr. 2006-07 also Ld. CIT(A)-VI has decided this issue in favour of the assessee vide his order dtd. 09.07.2010 on the basis of Hon'ble ITAT, Kolkata' orders for earlier years. Since the facts for AYr 2007-08 are the same, therefore, respectfully following the orders of Hon'ble ITAT, Kolkata for A.Yrs. 2004-05 and 05-06, for this year also I decide this issue in favour of the assessee."

But CIT(A) applied Explanation 10 to section 43(1) of the Act and directed the AO that subsidy amount be reduced from the actual cost of the fixed assets for calculating depreciation allowable under the Act. For this he held as under:

"6.4 Having held that the above Sales Tax subsidy of Rs. 12,38,000/- is a capital subsidy, I would like to draw attention to Explanation reads as follows:

'Explanation 10 - where a portion of the cost of an asset acquired by the assessee has been met directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. Provided that where such subsidy or grant or reimbursement is of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee.'

Now if we consider the nature of the above mentioned Sales Tax subsidy9 of Rs. 12,38,000/- it can be seen that this subsidy has been received by the assessee company in respect of the capital expenditure made for the expansion carried out in its factory. As per the eligibility certificate for this Sales Tax Exemption Scheme of 1998, the -Eligible Fixed Capital Investment' for expansion carried out by the assessee comes to Rs.3082.51 lacs. There is a direct link between the cost of fixed assets eligible under this exemption scheme and the subsidy amount received to the assessee by the State Government. It may be noted that total subsidy received over a period of time cannot exceed the eligible fixed capital investment of Rs.3082.51 lacs. Thus it can be said that whenever the assessee receives Sale Tax subsidy under this scheme a portion of the above cost of fixed asset is met by the State Government. Therefore it can be seen that this is a case where a portion of the cost of an asset acquired by the se has been met directly or indirectly by the Rajathan State Government in the form of incentive under the scheme which may be called a subsidy or grant or reimbursement. Therefore, as per Explanation 10 u/s 43(1) the actual cost of the asset has to be reduced by the amount of such incentive/subsidy and the depreciation allowable on such asset has to be calculated accordingly. It may be noted that in this appeal there are two more grounds of appeal in which the assessee has claimed subsidy received from the State Government under some other schemes as capital receipts. Once such subsidy is interest subsidy of Rs.2,02,45,164- received from Rajasthan Govt. discussed in para 8 of this order and the other subsidy is an amount of Rs.2,55,27,120/- received from the West Bengal Govt. discussed in para 14 of this order. In the written submission, for both these types of subsidies Ld A/Rs of the assessee have accepted that if these subsidies are treated as capital receipts then in view of the provision of Explanation 10 to Section 43(1) of the IT Act the AO may be directed to reduce the subsidy amount in determining the actual cost of the fixed assets for calculating allowable depreciation. Since the Ld A/Rs have accepted applicability of Explanation 10 u/s 43(1) for the above two subsidies which are claimed as capital receipts, therefore, for the subsidy received under the Rajasthan State Tax Exemption Scheme 1998 which has been held as capital receipt by the Hon'ble ITAT also the same principle will apply.

In view of the above discussion I hold that the subsidy amount of Rs.12,38,000/-received under the Rajasthan S T Exemption Scheme of 1998 is capital in nature but this subsidy amount will be covered by the provisions of Explanation 10 u/s 43(1) and therefore it should be reduced from the actual cost of the fixed assets for calculating depreciation allowable under the I.T. Act."

Aggrieved, both revenue and assessee, came in second appeal before Tribunal.

5. Before us Ld. Senior Advocate Shri J P Khaitan on behalf of assessee argued that the sales tax incentive received by the assessee-company relates to its unit for expansion, which was completed on 31-01-2001 and same is covered under Rajasthan Sales Tax Exemption Scheme, 1978 under Rajasthan Sales Tax and Central Sales Tax Act. He argued that overall limit of exemption is linked is fixed to capital investment and is in the nature for subsidy for setting up of new unit/expansion of existing unit. He stated the fact that for determining the Sales Tax amount eligible for exemption, a back calculation is made from the gross amount built to the party and thus, in effect, the exemption amount is derived from the sales value. According to him, the subsidy received is in the nature of capital receipt and thus it should be excluded while computing the total income of the company. Ld. counsel for the assessee drew our attention the eligibility certificate wherein the quantum of exemption from year to year is prescribed. Ld. counsel for the assessee drew our attention to eligibility certificate, wherein clause-(b)8 is described as:–

(b) Eligible fixed capital investment (in Rs.) Rs.3082.51 lakhs

Similar are the other eligibility certificate in respect to exemption issued from time to time. Ld. counsel for the assessee filed copy of relevant extract of R.S.T./C.S.T. Exemptions Scheme, 1998 (Serial No. 1131) wherein he particular drew our attention to the Explanation to Sec. 2 which clearly described the subsidy as 'capital expenditure' and the relevant reads as under:–

"Explanation.- Installation expenditure capitalized for plant and machinery shall be considered for eligible fixed capital investment.

(iv) Capitalized interest during construction not exceeding 5% of the total fixed capital investment."

Ld. counsel for the assessee further stated that the issue is covered in favour of assessee in assessee's own case of Tribunal's order for AYs 2002-03 to 2005-06 and AY 2006-07. Ld. counsel for the assessee then argued that even in view of Explanation-10 u/s 43(1) of the Act the subsidy amount will not be reduced from the actual cost of fixed assets for calculating depreciation under the provision of Act. For this he relied on the decision of Hon'ble Supreme Court in the case of CIT v. P.J. Chemicals Ltd. [1994] 210 ITR 830/76 Taxman 611 (SC) and even relied on the decision of Kolkata Bench of this ITAT in the case of Dy. CIT v. Rasoi Ltd. [2014] 65 SOT 58/46 taxmann.com 214.

6. On the other hand, the Ld. CIT DR, Shri Ravi Jain argued on behalf of the Revenue. He only argued on Explanation-10 to Sec. 43(1) of the Act and stated that after amendment the subsidy amount is to be reduced from the actual cost of fixed assets for computing depreciation under the Act.

7. We have heard rival contentions on this issue and gone through the facts and circumstances of the case. We find that the facts are discussed in detail and which are undisputed. It is admitted that the assessee's issue of Sales Tax Incentive is capital in nature for the reason that the very scheme under which the expansion of the unit and subsidy under Rajasthan Sales Tax Scheme, 1998 was received explains the purpose of the scheme as incurring capital expenditure for installation of plant and machinery and for eligible for fixed capital investment. Even the issue of assessee is covered in its favour by Tribunal's decision in assessee's own case all along from AYs 2002-03 to 2006-07. It is not brought to our notice by the Revenue that the matter has been decided by Hon'ble Calcutta High Court, despite a query from the Bench. In such circumstances, and taking a consistent view, we hold that the CIT(A) has rightly treated the sales tax subsidy receipt as 'capital in nature'.

8. In respect to the issue of application of Explantion-10 to Sec.43(1) of the Act we find from the facts of the case that the Rajasthan Govt. has framed a incentive scheme i.e., R.S.T/C.S.T. Exemptions Scheme 1998 for encouragement of setting up of industrial project or expansion of existing industrial projects. It is also a fact that the maximum limit of the subsidy was restricted with reference to the value of fixed capital investment in land, building, plant & machinery but no part of the subsidiary was specifically intended to subsidized the cost of the any fixed assets, therefore, it cannot be said that subsidy was to meet a portion of cost of asset. According to us, assessee has rightly not reduced the amount of subsidy received from the actual cost/WDV of the fixed assets while claiming depreciation. It is also a fact that revenue during scrutiny assessments of the assessee for AYs 2002-03 to 2006-07 added the subsidy amount as revenue receipt but Tribunal has considered the receipt as 'capital', accepting the contention of the assessee. Even Hon'ble Supreme Court in the case of P.J. Chemicals Ltd. (supra) has considered this issue and held that where 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 subsidy, being only a measure adopted under the scheme to quantify the financial aid, is not a payment, directly or indirectly, to meet any portion of the actual cost. Therefore, the said amount of subsidy cannot be deducted from the actual cost under sec. 43(1) for the purpose allowing depreciation. It is further held that if Government subsidy is an incentive not for the specific purpose of meeting a portion of the cost of the assets, though quantified as a percentage of such cost, it does not partake the character of payment intended either directly or indirectly to meet the "actual cost" By implication, the above judgment also provides that if the subsidy is intended for meeting a portion of the cost of the assets, then such subsidy should be deducted from the actual cost, for the purpose of computing depreciation. As per Hon'ble Supreme Court, law is that if the subsidy is asset-specific, such subsidy goes to reduce the actual cost. If the subsidy is to encourage setting up of the industry, it does not go to reduce the actual cost, even though the amount of subsidy was quantified on the basis of the percentage of the total investment made by the assessee. The law is already settled on the subject. Now, the only wavering is with reference to Explanation 10 provided under sec.43(1) of the Act. The said Explanation provides that where a portion of the cost of an asset acquired by the assessee has been met directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. It is further, provided thereunder, that where such subsidy or grant or reimbursement of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee. In order to invoke Explanation 10, it is necessary to show that the subsidy was directly or indirectly used for acquiring an asset. This is again a question of fact. The relatable subsidy to such asset can be reduced from the cost only if it is found that the cost for acquiring that asset was directly or indirectly met out of the subsidy. Likewise in the proviso, it is necessary to show that the subsidy has been directly or indirectly used to acquire an asset but it is not possible to exactly quantify the amount directly or indirectly used for acquiring the asset. Here also, a finding of fact is necessary that an asset was acquired by directly or indirectly using the subsidy. The above Explanation and the proviso thereto do not dilute the finding of the Hon'ble Supreme Court in the case of P. J. Chemicals Ltd. (supra) that asset-wise subsidy alone can be reduced from the actual cost. The above Explanation and the proviso therein attempt to explain the law. They are not bringing any new law different from the law considered by the Hon'ble Supreme Court in the above cases.

9. In view of the above facts and circumstances of the case and legal position explained by Hon'ble Supreme Court in the case of P. J. Chemicals Ltd. (supra), we are of the view that subsidy receipt should not be reduced from the actual cost of fixed assets for computing depreciation under the provisions of the Act. Accordingly, this issue of revenue's appeal is dismissed and that of the assessee is allowed.

10. The next issue in this appeal of assessee (ITA No.683/K/2011) is as regards to allowance of balance 50% additional depreciation u/s 32(1)(iia) of the Act in respect of new plant and machinery, purchased and put to use for less than 180 days in the immediately preceding year. The relevant ground raised by assessee is as under:–

"2.That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not directing the AO to allow balance 50% of initial depreciation to the extent of Rs.1339063209 u/s 32(1)(iia) on Plant & Machinery put to use for a period of less than 180 days during the Financial Year 2005-06 relevant to Asst. Year 2006-07."

11. The brief facts are that during financial year 2005-06 relevant to AY 2006-07, the assessee purchased and installed new plant and machinery for its manufacturing unit. Such plant and machinery was put to use for a period less than 180 days during the aforesaid financial year and claimed balance 50% of additional depreciation u/s 32(1)(iia) of the Act in view of the second proviso to Sec. 32(1) of the Act. During the current financial year 2006-07 relevant to AY 2007-08, the year under consideration, the assessee claimed additional depreciation (balance 50%) on the same plant and machinery as it was entitled to get balance additional depreciation this year also. The AO disallowed the claim by observing that "However, contesting to the assessee claim, it can be said that nowhere in the act it has been provided that balance 50% of further depreciation can be claimed in the subsequent year if the assessee had claimed initial 50% of further depreciation in the year of purchased because of used for less 180 days in terms of proviso to sec. 32(1). Accordingly the claim for further depreciation to the extent of Rs.13,39,63,209/- pertaining to additions made during Assessment Year 2006-07 and used for period of less than 180 days is not accepted."

Aggrieved, assessee preferred appeal before CIT(A).

12. The CIT(A) confirmed the action of the AO by observing in para-7.3 as under:–

"7.3 I have considered the above submission of Ld. AR. The first argument of the Ld. AR is that in Clause (iia) of Sec. 32(1) as introduced by Finance Act 2002 there was a mention of the previous year in which the additional depreciation u/s 32(1)(iia) was to be allowed but in the provisions which have been made effective from 01.04.2005 there is no mention about the previous year in which such additional depreciation is to be allowed. Ld. AR has submitted that this additional/further depreciation is not similar to the normal depreciation. It is an incentive which is granted to encourage the industry and therefore if such incentive gets restricted in the first year it should be allowed in the second year. Ld.AR has contended that there is no prohibition in allowing the initial depreciation in two years. In respect of this argument, I feel that that in the provisions of Clause (iia) introduced by Finance Act, 2002 the previous year was specified because under the first proviso to this clause the assessee was required to fulfill certain additional conditions for claiming this additional depreciation. In the provisions which are applicable with effect from 01.04.2005 such conditions are not there. But this does not mean that the assessee can claim this further additional depreciation in any year. I am of the opinion that to understand the eligibility for further/additional allowable under clause (iia) of Sec. 32(1)we must refer to the initial wording in this section, which is as follows:

'in the case any new machinery or plant'

From this wording it can be noted that the first requirement of this section is that the machinery or plant on which additional depreciation of 20% is being claimed should be new. In the first year in which the new plant and machinery is used by the assessee it is a new plant or machinery and therefore allowing depreciation in the next year will be against the basic requirement of clause (iia). The additional depreciation of 20% is an incentive but it can be allowed only in the year in which the assessee is eligible for it. In the IT Act there is no provision for spreading this incentive over two years. It can be allowed only in the year in which the new plant or machinery is first used by the assessee. Ld. AR has contended that as this initial depreciation is an incentive therefore it should be construed liberally and the assessee should be given its benefit to the full effect. In this respect I am of the view that any incentive can be allowed to the assessee only in the year in which he is eligible for the incentive as per law. But if the assessee is not eligible in any other year for such incentive it cannot be allowed. As per the provisions of Sec. 32(1)(iia) the assessee was eligible for initial depreciation in the assessment year 2006-07. It claimed this additional depreciation in that year but could be allowed only 50% of the additional depreciation since the new plant and machinery were put to use for a period less than 180 days in the relevant previous year. The remaining 50% of the initial depreciation cannot be allowed in the subsequent assessment year i.e. asst. year 2007-08 because in this asstt. year the plant and machinery are not new and there is no provision under the IT Act to allow such depreciation in the subsequent year also. In view of the above discussion I dismiss this ground of the assessee."

Aggrieved, assessee is in second appeal before Tribunal.

13. Before us, Ld. senior counsel for the assessee pointed out that second proviso to section 32(1)(ii) of the Act restricts the additional depreciation to 50% in case the machinery and plant was put to use for the purpose of business or profession for a period less than 180 days. Therefore, when the plant and machinery used for less than 180 days, the assessee is entitled for 50% for the additional depreciation and remaining 50% can be claimed in subsequent year since there is no restriction to claim the additional depreciation. He further stated that it is not a case of carry forward of additional depreciation for want of sufficient profit but in fact the assessee has sufficient profit to absorb the entire depreciation for the first year in which depreciation was claimed. However, in view of second proviso to section 32(1)(ii), the AO has allowed only 50% of depreciation of the total claim. In the absence of any proviso to prohibit the assessee from claiming remaining additional depreciation in the next assessment year, the claim of depreciation cannot be disallowed. Ld. Senior counsel submitted that section 32(1)(iia) is an incentive provision and enacted by the legislature with an intention to boost investment in industry so as to increase the productivity. A provision in taxing statute granting incentive for promoting growth and development should be construed liberally. According to the ld. senior counsel, hyper technical and legalistic approach would frustrate and defeat the very intention of the legislation. Shri J. P. Khaitan, Senior Advocate argued that a bare reading of section 32(1)(iia) clearly shows that the assessee is eligible for additional depreciation in case the new machinery and plant was acquired and installed after 31-03-2005. There is no restrictive condition in the clause for the eligibility of the assessee to claim additional depreciation. When the assessee is eligible for depreciation @ 20%, in the absence of any specific provision, the AO cannot cut down the scope of deduction by referring to second proviso to section 32(1)(ii) of the Act. According to him, even if there is any contradiction between sections 32(1)(iia) and second proviso to section 32(1)(ii), it has to be reconciled so as to give harmonious effect to the legislative intent. The benefits conferred on the assessee by way of incentive provision cannot be taken away by adopting an implied meaning to second proviso to section 32(1)(ii) of the Act. Since the second proviso to section 32(1)(ii) does not expressly prohibit the allowance of the balance 50% depreciation in the subsequent year, second proviso to section 32(1)(ii) shall not be interpreted to mean that it impliedly restrict the additional depreciation to be allowed in the subsequent assessment year. According to him, when the main provision which allows depreciation @ 20% and does not prescribe any particular year in which it has to be allowed, the intention of the legislature is to allow entire additional depreciation @ 20%. The second proviso to section 32(1)(ii) is to mean that 10% should be allowed in the year in which the machinery is acquired and installed and the balance 10% has to be impliedly allowed in the subsequent year.

14. On the other hand, Ld. CIT, DR Shri Ravi Jain stated that the assessee is entitled for additional depreciation u/s. 32(1)(iia) of the Act in respect of new machinery and plant and depreciation has to be granted only in the year in which machinery was put to use. According to him, if the machinery was put to use for less than 180 days and in that case assessee is entitled only for 50% of additional depreciation and the benefit cannot be carried forward for next year for allowance in the next year. According to him, there is no provision in the Act to carry forward the allowable depreciation when the assessee has sufficient profits. According to him, the provision is very clear and therefore, in view of the proviso to section 32(1)(ii) of the Act the assessee is entitled only for 50% of depreciation and not 100%.

15. We have heard rival submissions and gone through facts and circumstances of the case. The facts are admitted and there is no dispute on the facts. Only issue for adjudication is whether the assessee is entitled for the balance 50% additional depreciation in view of sec. 32(1)(iia) of the Act in the next assessment year for remaining unutilized additional depreciation. We have gone through the relevant provisions of second proviso to section 32(1)(ii) and 32(1)(iia) of the Act. In the present case before us, the assessee has purchased and installed new plant and machinery for its manufacturing unit and put to use for a period of less than i.e. 180 days, during the FY 2005-06 relevant to AY 2006-07 and claimed 50% additional depreciation u/s. 32(1)(iia) of the Act in view of the second proviso to section 32(1)(ii) of the Act. Further, the balance 50% of additional depreciation on such plant and machinery has been claimed by the assessee company during the year under consideration i.e. the FY 2006-07 relevant to this assessment year 2007-08. A bare reading of clause (iia) of section 32(1) of the Act w.e.f. the AY 2006-07, provides for allowance of additional depreciation equal to 20% of actual cost of new plant and machinery acquired and installed after March, 31st 2005 by an assessee engaged in the business of manufacture or production of any article or thing. Such additional depreciation is to be allowed as deduction u/s. 32(1)(iia) of the Act but second proviso to section 32(1)(ii) restricts the allowance of depreciation at 50%, if the plant and machinery is acquired during the previous year is put to use for a period of less than 180 days in that previous year. The second proviso specifically makes a reference to an asset referred to in clause (iia) of the said section 32(1) of the Act. And it is because of the second proviso assessee claimed only 50% additional depreciation for AY 2006-07 and accordingly, claimed the balance amount of additional depreciation in the immediately subsequent year i.e. the year under consideration AY 2007-08. We are in full agreement with the argument of Shri J. P. Khaitan, Senior Advocate that a bare reading of section 32(1)(iia) clearly shows that the assessee is eligible for additional depreciation in case the new machinery and plant was acquired and installed after 31-03-2005. There is no restrictive condition in the clause for the eligibility of the assessee to claim additional depreciation. When the assessee is eligible for depreciation @ 20%, in the absence of any specific provision, the AO cannot cut down the scope of deduction by referring to second proviso to section 32(1)(ii) of the Act. He also pointed out that even if there is any contradiction between sections 32(1)(iia) and second proviso to section 32(1)(ii), it has to be reconciled so as to give harmonious effect to the legislative intent. The benefits conferred on the assessee by way of incentive provision cannot be taken away by adopting an implied meaning to second proviso to section 32(1)(ii) of the Act. Since the second proviso to section 32(1)(ii) does not expressly prohibit the allowance of the balance 50% depreciation in the subsequent year, second proviso to section 32(1)(ii) shall not be interpreted to mean that it impliedly restrict the additional depreciation to be allowed in the subsequent assessment year. We are of the view that the assessee now is entitled for 50% additional depreciation, because in the year in which the machinery was first put to use the assessee claimed only 50% of additional depreciation for the reason that the same was put to use for less than 180 days, in this assessment year for the balance of depreciation.

16. Before us, Ld. counsel for the assessee relied on the decision of Coordinate Bench of ITAT of Cochin in the case of Apollo Tyres Ltd. v. Asstt. CIT [2014] 64 SOT 203/45 taxmann.com 337 (unreported), wherein the Bench has decided the issue as under:

'10. We have also carefully gone through the Second Proviso to section 32(1)(ii) of the Act, which reads as follows:

"Provided further that where an asset referred to clause (i) or clause (ii) or clause (iia), as the case may be, is acquired by the assessee during the previous year and is put to use for the purpose of business or profession for a period of less than one hundred and eighty days in that previous year, the deduction under this sub-section in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (i) or clause (iii) or clause (iia) as the case may be."

11. A bare reading of this section 32(1)(iia) clearly says that in case a new machinery or plant was acquired and installed after 31-03-2005 by an assessee, who is engaged in the business of manufacture or produce of article or thing, the, a sum equal to 20% of the actual cost of the machinery and plant shall be allowed as a deduction. It is not in dispute that the assessee has acquired and installed the machinery after 31-03-205. IT is also not in dispute that the assessee is engaged in the manufacture of article or thing. Therefore the assessee is eligible for additional depreciation which is equivalent to 20% of the actual cost of such machinery. The dispute is the year in which the depreciation has to be allowed. The assessee has already claimed 10% of the depreciation in the earlier assessment year since the machinery was used for less than 180 days and claiming the balance 10% in the year under consideration. Section 32(1)(iia) does not say that the year in which the additional depreciation has to be allowed. It simply says that the assessee is eligible for additional depreciation equal to 20% of the cost of the machinery provided the machinery or plant is acquired and installed after 31-03-2005. Proviso to section 32(1)(iia) says hast if the machinery was acquired by the assessing during the previous year and has put to use for the purpose of business less than 180 days, the deduction shall be restricted to 50% of the amount calculated at the prescribed rate. Therefore, if the machinery is put to use in any particular year, the assessee is entitled for 50% of the prescribed rate of additional depreciation. The Income-tax Act is silent about the allowance of the balance 10% additional depreciation in the subsequent year. Taking advantage of this position, the assessee now claims that the year in which the machinery was put to use the assessee is entitled for 50% additional depreciation since the machinery was put to use for less than 180 days and the balance 50% shall be allowed in the next year since the eligibility of the assessee for claiming 20% of the additional depreciation cannot be denied by invoking Second Proviso to section 32(1)(ii) of the Act.'

17. The ld. senior counsel also relied on the decision of the Delhi Bench of this Tribunal in the case of Dy. CIT v. Cosmo Films Ltd. [2012] 139 ITD 628/24 taxmann.com 189 and in the case of Asstt. CIT v. SIL Investment Ltd. [2012] 54 SOT 54/26 taxmann.com 78 (Delhi). This issue was considered by the Delhi Bench of this Tribunal in the case of Cosmo Films Ltd. (supra), wherein considering the provisions of section 32(1)(iia) and second proviso to section 32(1)(ii) of the Act found that when there is no restriction in the Act to deny the benefit of balance 50%, the assessee is entitled for the balance additional depreciation in the subsequent assessment year and observed as under:

"... Thus, the intention was not to deny the benefit to the assessee who have acquired or installed new machinery or plant. The second proviso to section 32(1)(iia) restricts the allowances only to 50% where the assts have been acquired and put to use for a period less than 180 days in the year of acquisition. This restriction is only on the basis of period of use. There is no restriction that balance of one time incentive in the form of additional sum of depreciation shall not be available in the subsequent year. Section 32(2) provide for a carry forward set up of unabsorbed depreciation. This additional benefit in the form of additional allowance u/s. 32(1)(iia) is onetime benefit to encourage the industrialization and in view of the decision of Hon'ble Supreme Court in the case of Bajaj Temp Ltd. (supra), the provisions related to it have to be construed reasonably liberally and purposive to make the provision meaningful while granting the additional allowance. This additional benefit is to give impetus to industrialization and the basic intention and purpose of these provisions can be reasonably and liberally held that the assessee deserves to get the benefit in full when there is no restriction in the statute to deny the benefit of balance of 50% when the new machinery and plant were acquired and used for less than 180 days. Onetime benefit extended to assessee has been earned in the year of acquisition of ne machinery and plant. It has been calculated @ 15% but restricted to 50-% only on account of usage of these plant and machinery in the year of acquisition. In section 32(1)(iia), the expression used is "shall be allowed". Thus, the assessee had earned the benefit as soon as he had purchased the new machinery and plant in full but it is restricted to 50% in that particular year on account of period usages. Such restrictions cannot divest the statutory right. Law does not prohibit that balance 50% will not be allowed in succeeding year. The extra depreciation allowable u/s. 32(1)(iia) in an extra incentive which has been earned and calculated in the year of acquisition but restricted for that year to 50% on account of usage./ The so earned incentive must be made available in the subsequent year. The overall deduction of depreciation u/s 32 shall definitely not exceed the total cost of machinery and plant. In view of this matter, we set aside the orders of the authorities below and direct to extend the benefit. We allow ground no.2 of the assessee's appeal. Since we have decided ground no.2 in favour of assessee, there is no need to decide the alternative claim raised in ground no.3. The same is dismissed."

18. In view of the above discussion and considering the orders of coordinate Benches, cited supra, we are of the considered view that the assessee is entitled for additional depreciation u/s. 32(1)(iia) of the Act in this assessment year also. We direct the AO accordingly.

19. The next issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of the AO in treating the interest subsidy received from the state government as revenue receipt. For this, assessee has raised following ground No.3:-

"3. That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not holding that interest subsidy of Rs.20245164 received from the State Government is a capital receipt and to be excluded from total income."

20. Briefly stated facts are that the assessee-company namely Chanderia Cement Works at Rajasthan, one of the unit, received interest subsidy of Rs.2,02,45,164/- on account of Investment Promotion Policy of Rajasthan government which was applicable to all new investments and investments made by the existing units and enterprises for modernization/expansion/diversification subject to the condition that such unit shall commence commercial production/ operation owing to such investments during the operative period of the scheme i.e. 01-07-2003 to 31-03-2008. As per the scheme a unit was eligible for subsidy under the scheme for the date of payment of sales tax and the amount of subsidy shall be subject to a maximum of 50% of the additional amount of Rajasthan Sales Tax & CST or VAT payable or deposited by the unit over and above the highest tax payable or deposited whichever is higher, in any of the three immediately preceding years, subject to above clause interest subsidy shall be 5% on maximum side. The assessee-company claimed this subsidy to be a capital in nature. According to AO, the subsidy in the form of realisation of the tax was more for encouragement to entrepreneurs to establish/expand industrial unit in the state o Rajasthan rather than towards acquisition of specific capital assets in that industrial unit. The intention was with the object of supplementing trade receipt and profits of the assessee-company rather than to assist the assessee in acquiring a capital asset, accordingly it was incidental to carrying on the business of the assessee. In view of this reasoning the AO rejected the claim of the assessee for treating this subsidy as capital in nature and treated the same as revenue receipt. Aggrieved, assessee preferred appeal before CIT(A).

21. The CIT(A) confirmed the action of AO in treating the interest subsidy as revenue receipt by observing as under:

"8.3 I have carefully considered the above submission made by Ld. AR. I have also examined the decision of Hon'ble Supreme Court in the case of CIT v. Ponni Sugars & chemicals Ltd [2008] 306 ITR 396. Ld. AR has claimed that in this decision Hon'ble Apex court has analyzed its earlier decision in the case of Sahney Steel and has clarified the criteria to be followed for deciding whether any subsidy or assistance is to be treated as capital or revenue. According to ld AR Hon'ble Apex Court has held that the main criteria for deciding nature of any subsidy should be the purpose for which such subsidy is given. In his submission reproduced above Ld. AR has summarized salient features of this scheme of Rajasthan Government and on the basis of these he has claimed that the main purpose of this scheme was to enable the assessee to set up a new unit or to expand its existing unit. The scheme required that for setting up new unit or expanding the existing unit the investment should be made by taking term loan from financial institution/scheduled banks. The loan/borrowing from the financial institution/bank should be for creation of fixed assets and not for working capital, over draft and current liabilities. On the basis of these features of the incentive scheme of Rajasthan Government Ld. AR claimed that the nature of the subsidy received under this scheme would be capital receipt in view of the decision of Hon'ble Supreme Court in the case of Ponni Sugars and Chemicals Ltd.

In this regard I am of the opinion that in the case of Ponni Sugars and Chemicals though Hon'ble Supreme Court has emphasized that for deciding the nature of any subsidy the purpose for which the subsidy is given should be the main criterion but we should understand that this emphasis on purpose of the subsidy scheme was given under the special circumstances of the case of Ponni Sugars and Chemicals. In that case the subsidy was given for setting up of new units and substantial expansion of the existing units. A minimum amount of investment was specified for setting up new unit and expansion of existing unit. However, one important requirement in that case was that the subsidy amount received was to be used by the assessee for repayment of the loan taken for setting up of new plan and machinery.

Now if we consider the incentive scheme of Rajasthan Government for 2003 we find that in this scheme here is no requirement that the subsidy amount should be used for repayment of the loan taken for new plant/expansion/modernization. Under this scheme the assessee is free to use the subsidy amount in the manner it wants. Therefore I am of the opinion that the decision of Hon'ble SC in the case of Ponni Sugars and Chemicals should not be applied here.

In fact if we look at the exact purpose for which the subsidy has been given in the particular case of the assessee we find that as such the assessee has not undertaken any expansion of its plant and capacity. First of all in the eligibility certificate under this scheme issued by the Rajasthan Government, it is mentioned that the subsidy is being give both for expansion and modernization. During the appellate proceedings Ld. AR of the assessee were asked to give complete details of the exact expansion undertaken by the assessee for claiming subsidy under this scheme. From the details submitted b Ld. AR it was revealed that in fact the assessee has not under taken any expansion of its plant rather this subsidy under the Rajasthan Government scheme of 2003 is given to the assessee for setting up a captive power plant. It is seen that this captive power plant was installed by the assessee in its Chanderia Cement Plant. For setting up this power plant the assessee took term loan of Rs.40.50 cr. from SBI and SBBJ. The assessee is paying interest on this loan @ 8% per annum. The subsidy is given to the assessee @ 5% of the loan amount used for setting up the captive power plant. The 5% of this loan amount comes to Rs.2,02,45,163/-which has been allowed as a subsidy to the assessee under this scheme of Rajasthan Government.

From these facts first of all it can be seen that the assessee has not carried out any expansion of its existing plant. The whole of the subsidy has been given in respect of setting up of a captive power plant which cannot be said to be in the nature of expansion. Secondly, in case of this particular scheme it is important t note that this scheme has been termed as a scheme of interest subsidy. Under this scheme an assessee becomes eligible only when it borrows funds from banks/financial institutions etc. for investing in the new industry/expansion/modernization allowed under this scheme. The subsidy amount is calculated @ 5% of the funds borrowed for use in the projects allowed under this scheme. The subsidy9 is give only till the assessee pays interest on the borrowed funds. If no interest is payable then the subsidy will not be allowed to the assessee. There is a limit to which subsidy can be claimed which is decided on the basis of the Sales Tax paid in three earlier years. All these features of this scheme show that the subsidy is not given for meeting a part of the capital expenditure incurred by the assessee but for meeting part of the interest which will be payable on the loan taken for investing in the capital assets. This means that through this subsidy the Government of Rajasthan is bearing a part of the interest burden of the assessee which is a revenu9e item. Therefore, it is clear that through this subsidy a revenue expenditure of the assessee is getting reduced leading to increase in its profitability. There is no doubt that if any incentive is received by the assessee for increase in its profitability such receipt will be a revenue receipt. This receipt cannot be capital in nature because it is not going to meet the capital expenditure of the assessee at all.

In view of the above discussion I hold that the interest subsidy of Rs.2,02,45,163/- received by the assessee is a revenue receipt and it will be taxable as income in the hands of the assessee."

Aggrieved, assessee came in appeal before Tribunal in second appeal.

22. We have heard rival submissions and gone through facts and circumstances of the case. Before us Ld. counsel for the Assessee Shri Khaitan, Sr. Advocate argued on behalf of assessee and narrated the fact that the assessee company is having two manufacturing units namely, Birla Cement Woks and Chanderia Cement Works situated Madhavnagar, Chanderia, Dist. Chittorgarh, Rajasthan. He narrated that in the year 2003, the Govt. of Rajasthan announced an Investment Promotion Policy, known as "The Rajasthan Investment Promotion Scheme, 2003 (Raj Invest-2003)", which was applicable to all new investment and investment for expansion of existing units and enterprise for modernization/expansion/diversification subject to the terms and conditions that the unit shall commence commercial production owing to such investment during the operative period of scheme w.e.f. 01.07.2003 to 31.03.2008. He explained the scheme that the subsidy includes interest subsidy as well as wage/employment subsidy for investment made in modernization/expansion/diversification of the unit eligible for subsidy under the scheme from the date of payment of sales tax. The amount of subsidy shall be subject to a maximum of 50% of additional amount of sales tax under Rajasthan Sales Tax Act and Central Sales Tax Act or VAT payable or deposited by the unit over and above the highest tax payable or deposited in any of the three preceding years immediately, whichever is higher. According to him, the interest subsidy shall be 5% of maximum side. He explained the purpose for giving subsidy to ensure that company makes investment in expansion/modernization. The present case carries rate of loan @ 8% on loan and subsidy is available for investors for seven years from the date of first repayment of interest. According to him, the company was allowed to utilize the subsidy only for repayment of term loans taken by it for expansion of existing business and the intention of granting subsidy thereof is to assist the company to recoup part of above investment and to repay the borrowings. Ld. counsel for the assessee narrated that the loan account under the Industrial Promotion Scheme was for the setting up of captive power plant and this fact has been admitted by lower authorities. This loan from State Bank of India and State Bank of Bikaner & Jaipur for a sum of Rs.40.50 cr. was taken for the purpose of setting up of power plant in its Chanderia Cement Plant and on this assessee is paying interest @ 8% p.a. The subsidy to be given to the assessee @ 5% of the loan amount used for setting up the captive power plant and assessee has accordingly made a claim @ 5% of this loan amount which comes to Rs.2,02,45,163/-, which has been allowed by the State Government as subsidy to the assessee under the Scheme. This setting up of Captive power plant is in the nature of expansion because the assessee is always facing acute shortage of power and to meet the power crisis this power plant was set up which is regularly producing power. In term of the above, Ld. counsel for the assessee stated that the assessee's subsidy is within the four corners of scheme which is for expansion of existing unit. Hence, according to Ld. counsel, the subsidy is capital in nature.

23. We have gone through the scheme, "Raj Investment Promotion Policy-2003", and it is necessary to understand the policy and for this we have to go through definition as provided in the scheme, wherein the term has been defined in clause (4) in respect to Expansion, modernization, diversification, investment and loan/borrowing which reads as under:

'(f) "Diversification" means launching of a new and different product or services by the same unit with the help for new set of machines in the case of industrial units or provision of new services by a unit in service sector with an additional fresh borrowing exceeding rupees ten lacs or investment in new land and/or building valued at more than rupees ten lacs.

(g) "Expansion" means minimum fresh additional borrowing of rupees ten lacs or investment in new land and/or building valued at more than rupees ten lacs; provided that the above limit of Rs.10 lacs shall be Rs.5 lacs in case of Small Scale Industries.

(h) "Modernization" means any improvement in the existing industrial or service unit by minimum borrowing of rupees ten lacs in the fixed assets. Provided that the above limit of Rs.10 lacs shall be Rs.5 lacs in case of Small Scale Industries.

(i) "Investment" means investment of funds (whether borrowed from designated institutions i.e. Commercial banks or State or Central Government financial institutions or from own resource) in any unit/project having commercial, or industrial output of goods or services, or projects set up for such common social good as are duly recognized by the Government by an order in this respect as a qualifying sphere of activity.

(j) "Loan/borrowing" means any long term loan or advance where the terms under which money is loaned or advanced provide for repayment along with interest thereon. Such loan/borrowing should e meant for creation of fixed assets and shall not include working capital loan, overdraft, and current liabilities. Lon/borrowing shall be obtained from scheduled commercial bank and/or financial institutions of the State or Central Governments.'

Further, the terms and conditions in respect to interest subsidy and/or wage /employment subsidy is described as under:–

"The Interest Subsidy and/or Wage/Employment Subsidy sanctioned and paid under the Scheme and the exemption of luxury tax, electricity duty, mandi tax, entertainment tax, stamp duty, conversion charges and other benefits availed under the Scheme shall be subject to the following conditions. Breach of any of these conditions shall make the subsidy/exemption amount liable to be recovered as Tax or arrears of land revenue/along with interest @ 18% per annum from the date from which the subsidy was provided."

We have also gone through this scheme, which was clarified by Finance Department (Tax Division) Government of Rajasthan, vide No.F.4(18) FD/Tax-Div./2001/T Dated 10-10-2003, wherein the existing clause7(i)(b) of the Raj Invest-2003 was amended in respect to expansion as under:–

"In case of investment made in Modernization Expansion, the amount of subsidy shall be subject to a maximum of fifty percent of the amount of the Central Sales Tax and VAT payable or deposited by the unit on its additional capacity, so created over and above the installed capacity before Expansion/Modernization.

Illustration :- installed capacity of unit 'A' before expansion/Modernization was 100 tons and after expansion it becomes 150 tons but the unit 'A' produce 140 tons. Tax paid on (140 tons 100 tons) = 40 tons shall qualify for calculation of subsidy.

For diversification the amount of subsidy shall be subject to a maximum of fifty percent of the amount of Central Sales Tax and VA payable or deposited by the unit over and above the highest tax payable or deposited whichever is higher, in any of the three immediately preceding years."

Further, existing clause-7 (iii) of the Raj Invest-2003 was amended in respect to the time lap as under:–

"The Subsidy shall be available to the investors for seven years from the date of first repayment of interest in case of Capital Subsidy, and first payment of wages/employment in case of wage employment subsidy. In case of Expansion/Modernization the unit shall be eligible for subsidy under the scheme from the date of payment of tax deposited on their additional production after Expansion/Modernization and for diversification, the amount in excess of the Central Sales Tax and VAT deposited by the unit over and above the highest tax payable or deposited whichever is higher, in any of the three immediately preceding years. "

Even government of Rajasthan issued entitlement certificate in Form-6 in respect to interest and/or/wage/employment subsidy certifying the entitlement of the assessee vide No.F.23(251)IIB(RIPS)/Ind/2005 dated 03-12-2005 and from which it is clear that this subsidy was for expansion and modernization. The certificate was issued after verification of the expansion.

24. From the above facts and the scheme issued by Rajasthan Government, it is clear that the assistance was to enable the assessee to set up a new unit or expand the existing unit. From the scheme and fact it is clear that the assessee has put its manufacturing unit under expansion from the loan taken under scheme. The assessee claimed that in its case the purpose of giving subsidy was to ensure that the assessee made investment in expansion/modernization. As the assessee was obliged to utilize the subsidy only for repayment of term loans undertaken for setting up new units/expansion of existing business, granting of the subsidy therefore was to assist the assessee-company to recoup part of the above investment and to repay the borrowing. Consequently and considering the capitalistic intention of the grant, we have already held the subsidy in the form of sales tax as capital in nature. Even, it would be evident from the 2003 Scheme that the same was framed with a view to provide investors as attractive opportunity to invest in the State of Rajasthan. The salient features of the 2003 Scheme may be summarized as under:–

"(a) The 2003 Scheme was applicable to all new investments and investment made by existing units and enterprises for modernization/expansion/diversification subject to the condition that such units shall commence commercial production/operation owing to such investment during the operation period of the scheme.

(b) Clause 5 of the 2003 scheme laid down the eligibility criteria. Some of such criteria were:-

(i) The term loan for financial institutions/scheduled commercial banks should have been sanctioned and utilized during the operative period of the scheme.

(ii) There should be a specified minimum borrowing for investment or there should be a minimum specified investment in land and/or building;

(iii) Commercial production/operation should have commenced during the operative period of the scheme;

(iv) There should be no default in repayment of dues against term loan of the financial institutions/bank.

(c) The loan/borrowing from the financial institution/bank should be for creation of fixed asset and shall not include working capital loan, overdraft and current liabilities.

(d) Investment for the purpose of the 2003 scheme meant investment of funds in any unit/project having commercial or industrial out of goods or services or project set up for common social good recognized by the government.

(e) The subsidy was available to the investors for seven years from the date of first repayment of interest.

(f) The interest actually being paid on the additional capital borrowed shall be the only basis of computation of subsidy.

(g) The application for subsidy had to be accompanied by inter alia, loan sanction letter issued by the term lending institution/bank. The subsidy was to be paid only for the period for which sales tax was deposited and/or regular repayment of loan and interest due to the financial institutions had been made. Subsidy was to be disallowed for the period there was default in depositing sales tax or in regular repayment of loan or interest. Restoration could be made only if all dues were cleared and regular payment of sales tax and repayment of term loan/interest were commenced."

From the above, it is clear that the provisions of the 2003 Scheme that the object of the scheme was to enable the assessee to set up a new unit or to expand the existing unit. The subsidy was to be granted only if the specified minimum funds were borrowed on long term basis for creation of fixed assets and was to be paid only if such loans were repaid along with interest in time. In case of default in timely repayment, subsidy was to be disallowed and could be restored only if the overdue amounts were cleared and regular repayment was started. The scheme ensured timely repayment of the loans with interest taken for creating fixed assets for the purpose of expansion. In the similar circumstances Hon'ble Supreme Court in the case of CIT v. Ponni Sugars & Chemicals Ltd. [2008] 306 ITR 392/174 Taxman 87 has laid principle on the very same issue and Tribunal in assessee's own case for assessment years 2001-02 to 2005-06 held that the subsidy received by the assessee was a capital receipt.

25. As we have held this subsidy receipt on account of interest on loan for expansion of manufacturing unit of the assessee-company, we are of the view, even admitted by assessee, that in the event the contention of the assessee for treatment of the subsidy as a capital receipt is accepted, in view of the provisions of Explanation 10 to section 43(1) of the Act, the Assessing Officer may be directed to reduce the amount of subsidy in determining the actual cost of the fixed assets for depreciation allowance. We direct the AO to reduce the amount of subsidy in determining the actual cost of the fixed assets for depreciation allowance. This issue of assessee's appeal is allowed.

26. The next issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of the AO in disallowing leave encashment u/s 43B(f) of the Act. For this, assessee has raised following ground No.4:-

"4. That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not holding that provision for leave encashment of Rs.16274391 is neither is a statutory nor contingent liability and therefore not to be considered for the purpose of computing disallowance u/s 43B(f) of IT Act, 1961."

27. At the outset, Ld. counsel for the assessee stated that the deduction on account of provision of leave encashment was made on the basis of the judgment of Hon'ble jurisdictional High Court in the case of Exide Industries Ltd. v. State of Maharashtra [Writ Petition No. 12025 of 2012, dated 4-8-2014], but he fairly conceded that subsequently Hon'ble Supreme Court has stayed this judgment of Hon'ble jurisdictional High Court vide order 08-05-2009 by following observations:-

"Pending hearing and final disposal of the Civil Appeals, Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case Civil Appeal of the Department is allowed.

We further make it clear that the assessee would, during the pendency of this Civil Appeal, pay tax as if section 43B(f) is on the Statue Book but at the same time it would be entitled to make a claim in its returns."

In view of the above, Ld. counsel for the assessee fairly stated that let Hon'ble Supreme Court decide the issue and by that time the matter can be remitted back to the file of AO for fresh adjudication in term of the decision of Hon'ble Supreme Court. On this, Ld. CIT DR has not objected to the same. Accordingly, we set aside this issue to the file of the AO to await the decision of Hon'ble Supreme Court and decide the issue accordingly. This issue of assessee's appeal is remitted back to the file of AO and allowed for statistical purposes.

28. The next common-issue in these cross-appeals is as regards to the estimation disallowance u/s.14A of the Act. For this, assessee has raised following ground No.5:–

"5.That on the facts and circumstances of the case, the learned CIT(Appeals) erred in disallowing 1% of Dividend income in a mechanical manner without appreciating the facts and submissions made by the appellant company in earning the said income."

Revenue has raised following ground No.4:–

"4.That Ld. CIT(A)-VI Kolkata has erred in law as well as on facts by deleting the addition made by the AO on account of disallowance u/s. 14A for Rs.1,36,63,647/-"

29. We have heard rival contentions and gone through facts and circumstances. We find that the AO during assessment proceedings noted the fact that assessee earned dividend of Rs.1,34,79,846/-claimed as exempt u/s.10(34) of the Act and dividend of Rs.10,86,28,149/- claimed as exempt u/s. 10(35) of the Act. He found that in respect of these exempt incomes the assessee did not make any disallowance u/s14A. The AO relied on the decision of Special Bench of ITAT Mumbai n the case of ITO v. Daga Capital Managment (P.) Ltd. [2008] 26 SOT 603 and applied the formula given in Rule 8D(iii) and calculated disallowance u/s.14A as Rs.1,48,84,723/- and added to the total income of the assessee. Aggrieved, assessee preferred appeal before CIT(A), who restricted the disallowance at 1% of the exempt income. Aggrieved, both came in second appeal before tribunal.

30. We find that the AO has applied Rule 8D(iii) read with section 14A of the Act for making disallowance by relying the decision of Special Bench of ITAT, Mumbai in the case of Daga Capital Management (P.) Ltd. (supra). Apart from this, the AO has not given any finding in respect to nexus of this expenditure with that of the earning of exempted income. The CIT(A) restricted the disallowance at 1% of exempted income by observing as under:

"On this issue I find that in the above mentioned decision of Godrej and Boyce Manufacturing Co. Hon. Bombay High Court has held that Rule 8D will be applicable from, assessment year 2008-09 onwards. Since here the assessment year involved is 2007-08 therefore Rule 8D cannot be applied. However it is seen that in some recent decisions Hon ITAT has held that 1% of the exempt income could be disallowed u/s 14A. In the case of the assessee the total exempt income comes to Rs.12,21,07,635/-. Therefore, 1% of this amount amounting to Rs.12,21,076/- is held as disallowable u/s. 14A."

We find that the decision of Special Bench of ITAT Mumbai in the case of Daga Capital Management (P.) Ltd. (supra) has been reversed by Hon'ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81/194 Taxman 203. Once this is the position that Rule 8D is prospective and not retrospective, the same cannot be applied to the year under consideration i.e. AY 2007-08. Even otherwise the AO has not given any finding with respect to the nexus of this expenditure with that of the exempted income and has not pointed out to any expenditure, whatsoever, which is relatable to the exempted income. In the absence of the same, we are of the view that no disallowance at all should be made. We

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hold accordingly. This issue of assessee's appeal is allowed and that revenue is dismissed. 31. The next issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in treating the industrial promotion assistance received as revenue in nature instead of claimed by assessee as capital in nature. For this, assessee has raised following ground nos. 6 and 7: "6. That on the facts and circumstances of the case, the learned CIT(Appeals) erred in not admitting an additional Ground raised by the appellant company during the course of hearing. 7. That without prejudice to Ground No.6 Rs.25527120 being Industrial Promotion Assistance a capital receipt, the learned CIT(Appeals) further erred in not directing the AO to exclude it from the total income." 32. At the outset, Ld. counsel for the assessee took us to the order of CIT(A) and argued that the CIT(A) has not admitted this ground and requested that the issue can be remitted back to the file of CIT(A) by directing him to adjudicate this ground. We have seen from the order of CIT(A) that the same was raised before CIT(A) by way of additional ground but he has not adjudicated for the reason that the assessee has not filed revised return for making the claim but he has made claim by way of computation of income. After hearing both the sides, we are of the view that this issue requires adjudication because the facts are already available in the assessment records. Similar issue was referred back by this Tribunal in assessee's own case for AY 2006-07 in ITA No. 1812/K/2010 dated 29.07.2011 vide para 9.4, wherein the Tribunal exactly on similar facts and same issue has been remitted back to AO for fresh adjudication. In term of the decision in AY 2006-07 of this Tribunal, we remit the issue back to the file of the AO to decide afresh after giving reasonable opportunity of being heard to the assessee. We order accordingly. 33. Ground no. 1 of revenue's appeal is against the order of CIT(A) deleting the disallowance made by AO on account of claim of deduction of proportionate amount of leasehold land written off of Rs.21,78,088/-. For this, revenue has raised following ground no.1: "1. That Ld. CIT(A)-VI, Kolkata has erred in law as well as on facts by deleting the disallowance made by AO on account of claim of deduction of proportionate amount of leasehold land written off of Rs.21,78,088/-. " 34. We have heard rival submissions and gone through facts and circumstances of the case. We find that this issue has been decided by the tribunal in assessee's own case in ITA No.1936/K/2010 for AY 2006-07 dated 29.07.2001 against the revenue and in favour of assessee. The Tribunal vide para 15 of its order has held as under: "15. We have heard the parties and perused the material placed on record. The learned counsel for the assessee has elaborated the facts of the case making reference of several decisions of Tribunal and Hon'ble Supreme Court and High Courts. After careful consideration of the same and evidences filed on record and in the paper book. We find that the assessee is required to pay compensation as determined by the local authority/court to the persons whose rights are infringed because of the mining activity. We also observe that ld. CIT(A) has properly analyzed the facts of the present case and distinguished the facts decided by the Hon'ble Apex Court in the case of Enterprising Enterprises v. Dy. CIT [2007] 293 ITR 437/160 Taxman 188 and then only has come to a conclusion that the compensation was paid for the damaged caused on the infringement of right of the land owner. He has also analyzed that the payments are progressively distributed as they work, as they proceed year by year, going on with their work and the payments are in the nature of incidental expenditure to conduct the mind and the business operations. He, therefore, held that the payment of compensation to persons whose rights are infringed by the mining activity is revenue in nature. We, therefore, find no infirmity in the order of the ld. CIT(A) on this issue and confirmed the same. Ground No. 1 of the Revenue's appeal is thus dismissed. " Since this issue is covered in favour of assessee by the aforesaid decision cited supra, we find no infirmity in the order of CIT(A) and confirmed the same. This issue of revenue's appeal is dismissed. 35. The next issue of revenue's appeal is against the order of CIT(A) deleting the addition made by the AO on account of profit on sale of fixed assets. For this, revenue has raised following ground no.3: "3. That Ld. CIT(A)-VI, Kolkata has erred in law as well as on facts by deleting the addition made by the AO on account of profit on sale of fixed assets for Rs. 45,34,000/-. " 36. We have heard rival submissions and gone through facts and circumstances of the case. We find that this issue has been decided by the tribunal in assessee's own case in ITA No.1936/K/2010 for AY 2006-07 dated 29.07.2001 against the revenue and in favour of assessee. The Tribunal vide para 23 of its order has held as under: "23. We have heard the parties and perused the material placed on record. Section 43(6)(c)(i)(B) specifically requires the reduction of the written down value of the block of assets by the moneys payable in respect of any asset falling within that block which is sold during the previous year. We find that the ld. CIT(A) discussed the facts and legal position in this regard by observing as under:– 'I have gone through the submissions of the appellant and also the order of the AO The accounting treatment cannot effect the operation of the statutory provisions contained in section 43(6) of the Act. The ld. AR argued that for accounting purpose as per accounting standard 10 some assets were transferred from heading of fixed assets to a separate heading 'other current assets" with a description "fixed assets held for disposal". However for income tax purposes the block of assets concept was followed as per statutory provisions. As per provisions of section 43(6)(c)(i)(B), the AO is directed to reduce the sale proceeds from the written down value and allow depreciation on reduced written down value. The ground of appeal is allowed.' From the above, it is evident that the Ld. CIT(A) has pointed out that the accounting treatment cannot effect the operation of the statutory provisions contained in Section 43(6) of IT Act and for income-tax purposes, the block of assets concept was followed as per statutory provisions. Considering the totality of the above facts and legal position, we do not find any justification to interfere with the findings of the Ld. CIT(A) in this regard. The same is sustained and the Ground No.3 of the Revenue's appeal is rejected." 37. Since this issue is covered in favour of assessee by the aforesaid decision cited supra, we find no infirmity in the order of CIT(A) and confirmed the same. This issue of revenue's appeal is dismissed. 38. In the result, the appeal of the Revenue is dismissed and that of the assessee is partly allowed as indicated in each of the grounds.
O R







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