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TMI Blog2014 (1) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt - Decided against the assessee. - ITA No.7125/Mum/2007, ITA No.2218/Mum/2008, ITA No.3833/Mum/2008, ITA No. 772/Mum/2009, ITA No.2012/Mum/2009, ITA No.4566/Mum/2009, ITA No.3960/Mum/2008 - - - Dated:- 8-1-2014 - Shri I. P. Bansal, JM And Shri N. K. Billaiya, AM,JJ. For the Appellants : Shri Prakash Jotwani For the Respondent : Shri M. L. Perumal ORDER Per Bench: All these appeals were heard together and are being disposed off by this common order for the sake of convenience and brevity. All these appeals involve one common issue relating to the taxability of sales tax benefit/subsidy received by the assessee under Power Policy of the State Government as incentive for setting up windmills in the Maharashtra State. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions as prescribed by the State Government of Maharashtra Policy, the assessee was eligible for claiming sales tax exemption, which was to the tune of Rs.1.66 cores. As per the policy on wind power generation, there was also a facility of transferring sales tax benefit to the third party. For this eligibility certificate was given by the Director, Maharashtra Energy Development Agency (MEDA). It was stipulated in the said policy that the promoters would be allowed to choose at the most two names of the third party units to get the sales tax benefits. The Entitlement Certificates for units of third party were to be certified by Commissioner of Sales Tax. The amount of sales tax benefit related to the wind energy generation and not to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an incentive and not to meet the cost of windmills, which was paid by the company out of its own resources before availing such benefit and, as such, the same is in the nature of capital subsidy not liable to tax. The entire contentions/submissions of the assessee revolve around whether the subsidy is capital or revenue in nature. 7. We have explained hereinabove, as to how the assessee got the consideration for the transfer of sales tax benefit. In our considerate view, what the assessee has done is that it has sold its benefits/entitlements to the third parties. What the assessee has received is consideration in respect of sale of the entitlement/benefits. We failed to persuade ourselves to consider/accept this consideration as sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said Entitlement Certificate is transferable to any industry subject to the said Scheme of Incentives within the Maharashtra and the transferee of such Entitlement Certificate can avail the benefits under the Entitlement Certificate up to the period by which monetary ceiling specified in the eligibility certificate gets exhausted or till the last day of the period mentioned in the Entitlement Certificate whichever is earlier. ..... 3 THE PURCHASE AND PAYMENTS BY THE PURCHASER (1) The Purchaser shall in consideration of the Sales Tax Exemption entitlement be liable to pay to the vendor as and by way of Entitlement Fee, an amount equivalent to 75% of the sales tax liability utilized out of the entitlement amount. The Purchaser s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy on Wind Power Generation and to substantiate its claim the assessee has also relied upon the Special Bench decision of the Tribunal in the case of Reliance Industries Ltd. 88 ITD 273. The assessee has also relied upon the decision of the Hon'ble Jammu Kashmir High Court in the case of Shree Balaji Alloys 333 ITR 335; High Court of Punjab Haryana 237 CTR 321; High Court of Karnataka 35 DTR 104; High Court of Bombay in the case of Chaphalkar Brothers 351 ITR 309 and High Court of Gujarat in the case of Inox Leisure Ltd. 351 ITR 314. 8. None of the aforementioned decisions is applicable to the facts of present case as in none of the above cases the assessees have sold their entitlement of sales tax subsidy. Whereas in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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