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TMI Blog2023 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... capital and not revenue - once the object of the subsidy was to industrialize the State and to generate employment in the State, the fact that the subsidy took a particular form and the fact that it was granted only after commencement of production would make no difference - Decided in favour of assessee. - THE HON BLE JUSTICE T.S. SIVAGNANAM And THE HON BLE JUSTICE HIRANMAY BHATTACHARYYA Mr. Smarajit Roy Cowdhury, Adv. Mr. Soumen Bhattacharyya, Adv. for appellant Mr. Abhrotosh Mazumder, Sr. Adv., Ms. Swapna Das, Adv. Mr. Siddharth Das, Adv. for respondent ORDER The Court : - There is a delay of 803 days in filing the appeal. Though the explanation given in the affidavit in support of the petition is not fully s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 36(va) of the Income Tax Act, and the declaratory explanation introduced in the Finance Bill, 2021 at clauses 8 and 9 of the Bill? We have heard learned Advocates for the parties. So far as the substantial question no.[a] is concerned, the same is squarely covered by the decision of this Court in the case of Principal Commissioner of Income Tax vs. Krishi Rasayan Exports [P] Ltd.; [2022] 145 taxmann.com 191 [Cal]. The operative portion of the decision reads as follows :- 4. The substantial question of law involved in this appeal is squarely covered in favour of the assessee and against the revenue in the light of the decision of the Hon ble Supreme Court in CIT vs. M/s. Chaphalkar Brothers [2017] 88 taxmann.com 178/[2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 2(24) of the Act, whether it can be said to form part of the book profit under Section 115 JB. The said question was answered in favour of the revenue in the following terms :- 31. In this case since we have already held that in the relevant assessment year 2010-11 the incentives interest subsidy and power subsidy is a capital receipt and does not fall within the definition of income under section 2(24) of the Income-tax Act, 1961 and when a receipt is not in the character of income it cannot form part of the book profit under section 115JB of the Act, 1961. In the case of Apollo Tyres Ltd. (supra) the income in question was taxable but was exempt under a specific Provision of the Act as such it was to be included as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 284 ITR): In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. This judgment was followed by our court in the case of CIT v. Britannia Industries Ltd. reported in [2017] 396 ITR 677 (Cal) holding that the Tribunal has the power to entertain the claim of deduction not claimed before the Assessing Officer by filing a revised return. Respectfully following the aforesaid decision as well as the view already taken by us in this case that the aforesaid subsidies are capital receipt and not an income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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