2016 (2) TMI 700 - AT - Income Tax

Revision u/s 263 - subsidy received by the assessee under the West Bengal Incentive Scheme 2000 was capital or revenue subsidy - Held that - It is clear from the order passed by AO u/s 143(3) of the Act and enquiry made by the AO before passing such order that the AO went in to the question as to whether the subsidy received by the assessee under the West Bengal Incentive Scheme 2000 was capital or revenue subsidy. Though the AO had not raise any specific query as to whether the subsidy in question has to be reduced from the value of fixed assets for the purpose of allowing depreciation invoking the provisions of Explanation 10 to section 43(1) of the Act. The assesse in its reply to the notice u/s 142(1) of the Act has clearly set out that the subsidy in question need not be reduced from the value of fixed assets. We have extracted the reply of the assessee in the earlier part of this order. Therefore the CIT in exercising his powers u/s 263 of the Act cannot come to a conclusion that there is a failure on the part of the AO to have made proper and adequate enquiry with regard to applicability of Explanation 10 to section 43(1) of the Act to the subsidy received by the assessee. Thus it cannot be said that the incentive in question was granted to meet any portion of the actual cost of fixed assets and the same is not required to be excluded from the cost of fixed assets on which the depreciation is to be allowed. We also find force in the submissions of learned counsel for the assessee that AO has taken one of the possible view and at best it would be a case where the CIT in exercising his powers u/s 263 of the Act wants to substitute his view with that of the view by the AO. Such a course is not permissible in the proceedings u/s 263 of the Act. For the reasons given above we quash the order u/s 263 of the Act and allow the appeal of the assessee.

Summary

Issues Involved:
1. Whether the subsidy received by the assessee under the West Bengal Incentive Scheme 2000 should be considered as a capital or revenue subsidy.
2. Whether the subsidy amount should be reduced from the cost of fixed assets for the purpose of allowing depreciation as per Explanation 10 to section 43(1) of the Income Tax Act, 1961.
3. Whether the order passed by the Assessing Officer (AO) was erroneous and prejudicial to the interest of the revenue, justifying revision under section 263 of the Income Tax Act, 1961.

Detailed Analysis:

1. Capital or Revenue Subsidy:
The assessee received a state capital investment subsidy of Rs. 1.5 crores under the West Bengal Incentive Scheme 2000. The assessee argued that the subsidy was a capital receipt intended to promote industrial development in backward areas and not to meet the cost of acquiring fixed assets. The assessee cited the decision in the case of Sasisri Extractions Ltd vs. ACIT, where it was held that such subsidies are not meant to subsidize the cost of capital and hence, should not be reduced from the actual cost of assets.

2. Reduction of Subsidy from Cost of Fixed Assets:
The AO, in the assessment order passed under section 143(3), did not reduce the subsidy amount from the cost of fixed assets for the purpose of allowing depreciation. The CIT, exercising powers under section 263, believed that the AO failed to consider the applicability of Explanation 10 to section 43(1) of the Act, which mandates that any subsidy received for acquiring an asset should reduce the actual cost of the asset. The CIT directed the AO to re-examine the matter and reduce the value of the assets by the subsidy amount for depreciation purposes.

3. Erroneous and Prejudicial Order under Section 263:
The assessee contended that the AO had made adequate inquiries regarding the nature of the subsidy and had applied his mind to the issue, concluding that the subsidy need not be reduced from the asset value. The Tribunal noted that the AO had indeed considered whether the subsidy was capital or revenue in nature and had received detailed explanations from the assessee. The Tribunal also referred to the ITAT Kolkata Bench decision in the case of DCIT vs. Rasoi Ltd., where it was held that subsidies under similar schemes were not meant to meet the cost of fixed assets and thus should not be reduced from the asset value for depreciation purposes.

Conclusion:
The Tribunal concluded that the AO had taken a plausible view based on the facts and legal precedents, and the CIT's attempt to substitute his view was not permissible under section 263. The Tribunal quashed the order under section 263, holding that the subsidy received under the West Bengal Incentive Scheme 2000 was not intended to meet the cost of fixed assets and thus should not be reduced from the asset value for depreciation purposes. The appeal of the assessee was allowed.