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2015 (7) TMI 784 - HC - Income TaxNature of receipt - Refund of excise duty claimed from DGFT - Business receipt or capital gain - whether is not income under Section 5 read with Section 28(iii)(b) in the hands of Assessee Company as held by ITAT? - Held that - Character of the receipt of subsidy in the hands of the Assessee under the scheme had to be determined with respect to the purpose for which the subsidy was granted. If the object of the assistance under the subsidy scheme was to enable the assessee to set up a new unit or to expand the existing unit then the receipt of the subsidy would be capital account . It was clarified that the form or the mechanism through which the subsidy is given are irrelevant. This Court concurs with the views expressed by the CIT (A) and the ITAT that any refund or drawback would go to ultimately reduce the cost of the project and had therefore to be treated as a capital receipt. See Challapalli Sugars Ltd. v. CIT 1974 (10) TMI 3 - SUPREME Court and CIT v. Bokaro Steel Ltd 1998 (12) TMI 4 - SUPREME Court - Decided against revenue.
Issues:
1. Interpretation of Section 28(iiic) of the Income Tax Act, 1961 regarding excise duty refund. 2. Treatment of excise duty refund claimed by the Assessee as income. 3. Capitalization of excise duty refund in the project cost. 4. Legal position on the nature of receipts related to capital assets. 5. Application of the purpose test in determining the nature of subsidies received. Analysis: 1. The primary issue in this case is the interpretation of Section 28(iiic) of the Income Tax Act, 1961, concerning the treatment of excise duty refund claimed by the Assessee. The question of law framed by the Court revolves around whether the refund of excise duty claimed by the Assessee from DGFT should be considered as income under Section 5 read with Section 28(iii)(b) of the Act. 2. The Assessee, a joint venture involved in setting up a thermal power generation plant, claimed excise duty refund as 'deemed export benefits'. The AO treated this refund as income, citing Section 28(iii)(b) related to cash assistance to exporters. However, it was clarified that the correct provision should be Section 28(iiic), which deals with duty repaid as drawback against exports. 3. The Court examined the project's status during the relevant Assessment Year (AY) and found that the thermal power plant was not operational. Consequently, the CIT (A) correctly held that all costs incurred by the Assessee should be treated as capital work in progress. The excise duty refund was deemed to reduce the project cost, being related to capital assets. 4. Legal precedents such as Challapalli Sugars Ltd. v. CIT and CIT v. Bokaro Steel Ltd were cited to support the capitalization of expenses necessary to bring fixed assets into existence. Receipts related to the construction of a steel plant were considered capital in nature, reducing the cost of construction. The Court reiterated that such receipts are capital in nature and not income from independent sources. 5. The application of the purpose test in determining the nature of subsidies received was highlighted through cases like CIT v. Karnataka Power Corporation and CIT v. Ponni Sugars & Chemicals Ltd. The Court agreed with the CIT (A) and ITAT that any refund or drawback ultimately reduces the project cost and should be treated as a capital receipt. In conclusion, the Court answered the question of law in favor of the Assessee, dismissing the appeal with no order as to costs. The judgment emphasizes the capital nature of the excise duty refund in the context of project costs and aligns with established legal principles regarding the treatment of such receipts.
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