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TMI Blog2015 (2) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... our notice the decision of this Court in Tax Appeal No.167 of 2012 and allied matters in respect of the very Assessee for the very question decided on 08.01.2013 whereby, the similar view as was taken in the earlier matter, has been upheld by this Court . However, he submitted that against the aforesaid judgment of this Court, the matter is carried before the Apex Court in the proceedings of Special Leave Petition (Civil ) No.15773 of 2013 and the leave has been granted and the appeal is ordered to be tagged with further Civil Appeal No.8119 of 2013 arising from the different High Courts. However, he is unable to show any order passed by the Apex Court whereby, the judgment of this Court in the aforesaid Tax Appeal No.167 of 2012 and allied matters is stayed by the Apex Court. 3. In our view, if the question which arises for consideration is already covered by the decision of this Court, as such, it can be said that no substantial question would arise for consideration, more particularly, when the judgment of this Court is not stayed by the Apex Court in the abovereferred proceedings but, at the same time, it cannot be disputed that if any view is taken by the Apex Court in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bombay High Court in case of Commissioner of Income Tax, Kolhapur Vs. M/s. Chaphalkar Brothers, Pune in Tax Appeal No. 1036 of 2010 and connected appeals dated 08.06.2011 in which, the Bombay High Court had in light of the incentive scheme of the Maharashtra Government for multiplexes, upheld the Tribunal's decision treating such receipts as capital in nature. 6. Learned counsel for the revenue referred to the scheme of incentive formulated by the State Government and contended that the benefit granted was in the nature of entertainment tax exemption. Such benefit was to be made available only once the multiplex was in operation. Such incentive must therefore, be treated as revenue receipt. He took us through various provisions of the scheme to further contend that the Tribunal committed an error in holding that the receipt was a capital receipt. Counsel also produced, for our perusal, the notification issued by the Maharashtra Government under which, certain incentives were granted to the multiplex theaters in the State from payment of certain taxes. On the basis of such document, counsel contended that the Tribunal committed a grave error in relying on the decision of the Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility and provides that the quantum of incentives shall not exceed 100% of eligible capital investment and if the limits of incentives expire before the eligible period, the unit would not be allowed to avail of any further benefit. For the purpose of different units, the tax exemption period varied between 5 to 10 years. Clause 11 pertains to procedure for claiming incentives and provides that the competent authority, after scrutinizing the application for exemption, would issue eligibility certificate so as to enable the units to obtain the benefits. 10. From the above noted provisions of the scheme it can be clearly seen that the entire purpose of granting tax exemption was for giving the boost to the terrorism sector. This was to be achieved by attracting higher investment in areas with tourism potential. In order to achieve such purpose, exemption from various taxes as may be applicable was granted. It is true that the exemption was to be computed in terms of tax otherwise payable by the industry. However, the purpose of such exemption was to meet with the capital outlay already undertaken by the assessee. This clearly comes out from various provisions of the scheme. For exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration, we are of the opinion that the Tribunal committed no error. 13. Insofar as Maharashtra scheme is concerned, our task is much easier. To begin with the scheme itself is very specific in its purport and intent. Under notification dated 20.09.2001, by which such scheme was promulgated by the State of Maharashtra, it is provided that lately people prefer to see movies at home. Multiplex theaters are, therefore, required to be given incentive. These complexes are highly capital incentive and their gestation period is also quite longer. The Government, therefore, finds a need to support such complexes by offering incentives in the form of entertainment duty. The eligible units were, therefore, offered incentive in terms of entertainment tax exemption at different ratio for different purpose of its operation. Full exemption from payment of such tax was offered for first three years; 75% of the duty was waived for subsequent two years whereas from the sixth year, full duty would have to be paid. 14. The very purpose of the scheme thus was to give incentive to the multiplex units which were found to be highly capital incentive. The very scheme was considered in case of Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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