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TMI Blog2018 (3) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order. ITA no.5768/Mum./2015 - A.Y. 2008-09 and ITA no.5769/Mum./2015 - A.Y. 2009-10 Assessee's Appeals 2. Grounds raised in these two appeals are identical except the figures. Therefore, for the sake of convenience, the grounds raised in ITA no.5768/Mum./2015 are reproduced hereunder:- "1. The learned CIT(A) erred in law and on facts in upholding the issuance of notice under section 148 r/w section 147 of the Act. Appellant prays that the assessment order passed under section 143(3) r/w section 147 based on mere change of opinion should be quashed being bad-in-law; 2. The learned CIT(A) erred in law and on facts in holding that though the subsidy received is a capital receipt the same has to be reduced from the WDV of the books of assets and to allow the depreciation on the reduced value of WDV accordingly. Appellant prays that the subsidy collected in the form entertainment duty of ' 6,08,46,243 during the year under consideration should be treated as capital receipt and not liable to be reduced from WDV of block of assets for allowance of depreciation; and 3. Appellant craves to leave, to add, to alter, to amend or to modify all or any of the ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148 on 16th March 2013 and ultimately passed the assessment order under section 143(3) r/w section 147 of the Act disallowing depreciation claimed of ' 81,95,591 by the assessee. The assessment order so passed was challenged before the first appellate authority, inter-alia, on the ground of validity of re-opening of assessment under section 147 of the Act. However, the learned Commissioner (Appeals) did not find merit in the submissions of the assessee with regard to assessee's challenge on the issue of re-opening of assessment. 7. Learned Authorised Representative submitted, during the original assessment proceedings the Assessing Officer has specifically enquired into and examined the issue relating to the nature of reimbursement of entertainment tax collected and also the applicability of section 43(1). He submitted, after examining the issue in detail and keeping in view the submissions made by the assessee the Assessing Officer completed assessment by holding that the entertainment tax subsidy received by the assessee was of revenue nature, hence, to be treated as income. Learned Authorised Representative submitted, the Assessing Officer having enquired into and examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted, the issue whether the entertainment tax subsidy is to be reduced from the cost of asset under section 43(1) of the Act for computing depreciation was never examined by the Assessing Officer in the original assessment proceedings, since, he treated the entertainment tax subsidy received by the assessee as revenue receipt. She submitted, that being the case, there is no change of opinion while re-opening of assessment. As far as the merits of the issue are concerned the learned Departmental Representative relied upon the observations of the learned Commissioner (Appeals). 10. We have heard rival submissions and perused material available on record. We have also applied our mind to the decisions relied upon. Undisputedly, in the relevant previous year the assessee has received the entertainment tax collected by it from the multiplexes as subsidy as per the scheme of Maharashtra Government. In the course of the original assessment proceedings, the Assessing Officer specifically enquired into and examined not only the nature and character of the entertainment tax subsidy received by the assessee, whether revenue or capital, but he also raised query with regard to applicabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any fresh tangible material, the re-opening of assessment under section 147 in the present case is invalid as it tantamounts to re-opening on a mere change of opinion. The decision relied upon by the learned Authorised Representative squarely support this view. Therefore, we have no hesitation in holding that the impugned assessment order passed under section 143(3) r/w section 147 of the Act is legally unsustainable, hence, deserves to be quashed. Having held so, though, it is not necessary to delve into the merits of the issue, however, considering the fact that we have heard the parties on merits and it is a recurring issue between the parties even in the subsequent assessment year, we proceed to deal with the merits as well. It is evident, the Departmental Authorities have disallowed assessee's claim of depreciation on the reasoning that the entertainment tax subsidy being in the nature of capital receipt should be reduced from the cost of asset in terms of Explanation 10 to section 43(1) for computing depreciation. However, as brought to our notice by the learned Authorised Representative, in assessee's own case for the assessment year 2010-11, the Tribunal while decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inment tax subsidy received by the assessee to be capital receipt, hence, not taxable. 17. We have heard rival submissions and perused material available on record. As discussed in the earlier part of order, in assessee's own case for assessment years 2008-09 and 2009-10, the Hon'ble Jurisdictional High Court while dismissing the Revenue's appeal has upheld the decision of the Tribunal in treating the entertainment tax subsidy received by the assessee from the State Government as capital receipt. The Tribunal has again reiterated the same view in assessee's own case for assessment year 2010-11 in ITA no.7380/ Mum./2013, dated 20th July 2016. In fact, the issue relating to the nature of entertainment tax subsidy given to multiplexes theatre by the State Government has attained finality by the decision of the Hon'ble Supreme Court in Chaphalkar Brothers (supra), wherein the Hon'ble Supreme Court considering the very same issue relating to the nature of entertainment tax subsidy granted by the State Government has held it to be of capital in nature. In view of the aforesaid, we do not find any infirmity in the order of the learned Commissioner (Appeals) on the issue. Grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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