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2020 (8) TMI 403 - AT - Income TaxRevision u/s 263 - incentive received being refund of VAT under the scheme of Government of Gujarat - revenue or capital receipt - CIT was of the view that such incentive was disbursed towards meeting the running expenses and the operating the business and has to be treated as revenue in nature - HELD THAT - ITAT in the own case of the assessee has decided the identical issue in favour of the assessee. Thus the AO has taken one of the possible view by treating the incentive as capital receipt not chargeable to tax. Therefore, in our considered view the order of the AO cannot be held as erroneous insofar prejudicial to the interest of revenue. In this regard we find support and guidance from the judgment in the case of CIT vs. Max India Ltd 2007 (11) TMI 12 - SUPREME COURT . We hold that there is no error in the order of the AO causing prejudice to the interest of revenue as alleged by the learned principle CIT. Accordingly we hold that the order passed by the learned PCIT under section 263 of the Act, is not sustainable. Hence we quash the same. Thus the ground of appeal of the assessee allowed.
Issues:
Appeal against order under section 263 of the Income Tax Act, 1961 - Treatment of incentive as capital or revenue receipt. Analysis: The appeal before the Appellate Tribunal ITAT Rajkot arose from an order under section 263 of the Income Tax Act, 1961, where the only issue raised was the treatment of an incentive received by the assessee as either a capital or revenue receipt. The assessee contended that the incentive, a refund of VAT under the Gujarat government scheme, was a capital receipt not chargeable to tax, while the Principal CIT held it to be revenue in nature. The Principal CIT directed the AO to add the incentive amount to the total income of the assessee, deeming the assessment order as erroneous insofar prejudicial to the interest of revenue. In the hearing, the learned AR for the assessee argued that a similar issue had been decided in favor of the assessee by the ITAT in a previous case. The ITAT noted that the AO had taken a permissible view by treating the incentive as a capital receipt, and hence, the order could not be considered erroneous prejudicial to the interest of revenue. Citing the judgment in CIT vs. Max India Ltd and Malabar Industries Co Ltd vs. CIT, the ITAT emphasized that the mere loss of revenue due to a permissible view taken by the AO does not render the order erroneous. The ITAT concluded that the order passed under section 263 was not sustainable, quashing the same and allowing the appeal of the assessee. Furthermore, the ITAT addressed the delay in pronouncing the order beyond the prescribed 90-day limit, attributing it to the COVID-19 lockdown situation. Referring to the extension of time granted by other tribunals and courts due to the pandemic, the ITAT justified the delay in pronouncing the order beyond the stipulated period. The ITAT highlighted the exceptional circumstances caused by the lockdown and the need for a pragmatic approach in interpreting time limits, ultimately allowing the appeal of the assessee and dismissing the appeal of the Assessing Officer. In conclusion, the ITAT allowed the appeal of the assessee, dismissed the appeal of the Assessing Officer, and pronounced the order under rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1962. The judgment was pronounced on 02-06-2020, acknowledging the delay in issuing the order due to the COVID-19 lockdown.
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