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2018 (1) TMI 515 - HC - Income TaxAddition on account of disallowance of claim of VAT reimbursement - character of the subsidy in the hands of the assessee - nature of income - Revenue or capital receipt - Held that - Any subsidy given by the Central Government or a State Government or any authority etc. for any purpose, except where it is taken into account for determination of the actual cost of the asset under Explanation 10 section 43(1), has become chargeable to tax. Even if a subsidy is given to attract industrial investment or expansion, which is a otherwise a capital receipt under the pre-amended era, shall henceforth be treated as income chargeable to tax, except where it has been taken into account for determining the actual cost of assets in terms of Explanation 10 to section 43(1). This amendment is with effect from 1-4-2016 and is prospective in its application. In the instant case, as the assessment year under consideration is 2009-10, Section 2(24)(xviii) shall have no operation. In light of above discussions and in the entirety of the facts and circumstances of the case, VAT subsidy received by the assessee from the Government of Bihar is a capital receipt and accordingly not chargeable to tax - Decided in favour of assessee.
Issues Involved:
1. Whether the ITAT was justified in deleting the addition made by the AO on account of disallowance of claim of VAT reimbursement. Issue-wise Detailed Analysis: 1. Justification of ITAT in Deleting the Addition of VAT Reimbursement: The appeals were centered on the substantial question of law regarding whether the ITAT was justified in deleting the additions made by the AO concerning the disallowance of VAT reimbursement claims by the assessee. The appellant contended that the Tribunal committed an error in allowing the appeal of the assessee and dismissing the appeal of the Department. The Tribunal’s decision was based on the analysis of the nature of the subsidy provided to the assessee. The Tribunal referred to various judgments, including the Supreme Court's decision in *Commissioner of Income Tax, Madras vs. Ponni Sugars and Chemicals Ltd.*, which emphasized the purpose test to determine the nature of the subsidy. The purpose test examines the objective for which the subsidy is given, rather than the form, source, or point of time it is paid. In the case of *Ponni Sugars*, the Supreme Court held that if the subsidy was to assist in carrying on trade or business, it was revenue in nature. Conversely, if it was to set up a new unit or expand an existing one, it was capital in nature. The Tribunal also cited the *Shree Balaji Alloys* case, where the incentives provided under the New Industrial Policy were deemed to be capital in nature as they aimed at creating new assets and employment opportunities, rather than merely assisting in production. The Tribunal observed that the VAT reimbursement in question was provided under the Industrial Incentive Policy of Bihar, 2006, aimed at establishing new industries and reviving sick units to generate employment. The subsidy was linked to the capital employed and was intended to encourage the setting up of new units. The Tribunal concluded that the VAT subsidy was a capital receipt, not chargeable to tax, as it was aimed at creating new assets and employment opportunities, rather than merely assisting in production. The Tribunal also noted that the Finance Act, 2015, which amended the definition of income to include subsidies, was prospective and did not apply to the assessment year in question (2009-10). Based on these observations, the Tribunal held that the VAT subsidy received by the assessee was a capital receipt and not chargeable to tax. Consequently, the Tribunal’s decision to delete the additions made by the AO was justified. The appeals were dismissed, and the issues were answered in favor of the assessee against the department.
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