2015 (2) TMI 1169 - HC - Income Tax

Entertainment tax exemption in respect of Multiplexes - revenue or capital receipt - non exigibility to tax - whether the subsidy received by the assessee was after the completion of the cinema house and commencement of operation and used entirely for the business operation and therefore revenue in nature? - Held that - Since the object of subsidy was to promote construction of multiplex theater complexes in our opinion receipt of subsidy would be on capital account. The fact that the subsidy was not meant for repaying the loan taken for construction of multiplexes cannot be a ground to hold that subsidy receipt was on revenue account because if the object of the scheme was to promote cinema houses by constructing multiplex theaters then irrespective of the fact that the multiplexes have been constructed out of own funds or borrowed funds the receipt of subsidy would be on capital account. In the light of the aforesaid objects of the Scheme framed by the State Government the decision of the Income Tax Appellate Tribunal that the amount of subsidy received by the assessee is on capital account cannot be faulted.

Summary

Issues Involved:
1. Whether the entertainment tax exemption for Multiplexes should be treated as a capital receipt or revenue receipt.
2. Dependency of the second question on the first question.

Detailed Analysis:

Issue 1: Treatment of Entertainment Tax Exemption as Capital Receipt or Revenue Receipt

The primary issue in this case is whether the entertainment tax exemption received by the assessee for its multiplex units should be treated as a capital receipt, which is not exigible to tax, or as a revenue receipt, which is taxable. The Revenue contended that the subsidy was received after the commencement of business operations and was used for business operations, thus arguing that it should be treated as revenue in nature.

The court noted that the same issue had been previously decided in favor of the assessee by this Court in Tax Appeal No.167 of 2012 and allied matters on 08.01.2013, where the judgment was not stayed by the Apex Court despite an ongoing appeal (Special Leave Petition (Civil) No.15773 of 2013). The court upheld the previous decision, stating that no substantial question of law arises for consideration.

Issue 2: Dependency of the Second Question on the First Question

The court observed that the second question is dependent upon the first question. Since the first question had already been settled by the previous judgment, the second question did not require separate consideration.

Comprehensive Analysis:

Background and Facts:
The respondent-assessee, a company operating multiplexes and theaters, received entertainment tax exemptions from the State Governments of Gujarat and Maharashtra under specific incentive schemes. The Assessing Officer initially treated these receipts as revenue in nature, arguing that the subsidies were granted after the commencement of business operations and were used for business purposes.

CIT(A) and Tribunal's Decision:
The CIT(A) reversed the Assessing Officer's decision, holding that the receipts were capital in nature, as the tax exemptions were related to capital investments made by the assessee. The Tribunal upheld this view, relying on the Bombay High Court's decision in Commissioner of Income Tax, Kolhapur Vs. M/s. Chaphalkar Brothers, Pune, which treated similar receipts as capital in nature.

High Court's Analysis:
The court examined the provisions of the incentive schemes, noting that the primary purpose was to boost tourism by attracting investment in areas with tourism potential. The schemes provided tax exemptions up to 100% of the capital investment, clearly linking the incentives to capital outlay. The court emphasized that the eligibility for tax exemption was contingent on new or expanded capital investments, further supporting the view that the receipts were capital in nature.

The court also referenced the Supreme Court's rulings in Sahney Steel and Press Works Ltd. vs. Commissioner of Income Tax and Commissioner of Income Tax Vs. Ponni Sugars and Chemicals Ltd., which established that the nature of a subsidy (capital or revenue) depends on the purpose for which it is granted. Applying this "purpose test," the court concluded that the subsidies in question were intended to recoup capital investments, thus qualifying as capital receipts.

Conclusion:
The court dismissed the appeal, affirming that the entertainment tax exemptions received by the assessee were capital receipts and not taxable. The judgment was made with the observation that any contrary view taken by the Apex Court in the ongoing appeal would hold the field, and the Revenue could take appropriate steps based on such a decision.

Final Order:
The appeal was dismissed as meritless, with the court reiterating that the decision of the Tribunal required no interference. The court also noted that any future decision by the Apex Court in the related Special Leave Petition would prevail, and the Revenue could proceed accordingly.