Case Law Details

Case Name : Dayal Steel Ltd. Vs Addl. CIT (ITAT Patna)
Appeal Number : IT Appeal No. 86 (Pat.) of 2014
Date of Judgement/Order : 13/04/2017
Related Assessment Year : 2006-07
Courts : All ITAT (7439)

Dayal Steel Ltd. Vs Addl. CIT (ITAT Patna)Admitted facts are that during the year under consideration assessee-company received incentive subsidy from Govt. of Jharkhand as encouragement for setting up of new industrial project and/or expansion/modernization of the existing unit. It is also a fact that maximum limit of the subsidy was restricted with reference to the value of fixed capital investments in land, building, plant and machinery but no part of the subsidy was specifically intended to subsidize the cost of any fixed asset, therefore, it cannot be said that the subsidy was to meet a portion of cost of the asset. According to us, the assessee has rightly not reduced the amount of subsidy received from the actual cost/WDV of the fixed assets while claiming depreciation. Even Hon’ble Supreme Court in the case of P.J. Chemicals Ltd. (supra) has considered this issue and held that where Government subsidy is intended as an incentive to encourage entrepreneurs to move to backward areas and establish industries, the specified percentage of the fixed capital cost, which is the basis for determining the subsidy, being only a measure adopted under the scheme to quantify the financial aid, is not a payment, directly or indirectly, to meet any portion of the actual cost. Therefore, the said amount of subsidy cannot be deducted from the actual cost under section 43(1) for the purpose allowing depreciation. It is further held that if Government subsidy is an incentive not for the specific purpose of meeting a portion of the cost of the assets, though quantified as a percentage of such cost, it does not partake the character of payment intended either directly or indirectly to meet the “actual cost”. By implication, the above judgment also provides that if the subsidy is intended for meeting a portion of the cost of the assets, then such subsidy should be deducted from the actual cost, for the purpose of computing depreciation. As per Hon’ble Supreme Court, the law is that if the subsidy is asset-specific, such subsidy goes to reduce the actual cost. If the subsidy is to encourage setting up of the industry, it does not go to reduce the actual cost, even though the amount of subsidy was quantified on the basis of the percentage of the total investment made by the assessee.

The law is already settled on the subject. Now, the only wavering is with reference to Explanation 10 provided under section 43(1). The said Explanation provides that where a portion of the cost of an asset acquired by the assessee has been met directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. It is further, provided there under, that where such subsidy or grant or reimbursement of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee. In order to invoke Explanation 10, it is necessary to show that the subsidy was directly or indirectly used for acquiring an asset. This is again a question of fact. The relatable subsidy to such asset can be reduced from the cost only if it is found that the cost for acquiring that asset was directly or indirectly met out of the subsidy. Likewise in the proviso, it is necessary to show that the subsidy has been directly or indirectly used to acquire an asset but it is not possible to exactly quantify the amount directly or indirectly used for acquiring the asset. Here also, a finding of fact is necessary that an asset was acquired by directly or indirectly using the subsidy. The above Explanation and the proviso thereto do not dilute the finding of the Hon’ble Supreme Court in the case of P. J. Chemicals Ltd. (supra) that asset-wise subsidy alone can be reduced from the actual cost. The above Explanation and the proviso therein attempt to explain the law. They are not bringing any new law different from the law considered by the Hon’ble Supreme Court in the above cases. We also find that the assessing officer has reduced the value of the fixed assets by the amount of subsidy proportionately which also proves that assessing officer has failed to establish the direct connection with the specific assets.

In view of the above facts and circumstances of the case and legal position explained by Hon’ble Supreme Court in the case of P.J. Chemicals Ltd.(supra), we are of the view that Commissioner (Appeals) has wrongly denied the claim of depreciation of assessee.

Full Text of the ITAT Order is as follows:-

This appeal by the assessee is directed against the order of Commissioner (Appeals) Dhanbad Camp Office, Patna dated 26-3-2014. Assessment was framed by ACIT. Ramge-2, Patna under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 22-10-2008 for assessment year 2006-07.

Shri A.K. Rastogi, learned Advocate appeared on behalf of assessee and Shri S.K. Paul, learned. Departmental Representative represented on behalf of Revenue.

2. Only effective issue raised by assessee in this appeal is that learned Commissioner (Appeals) erred in applying the provision of Explanation10 of section 43(1) on account of subsidy received.

3. Briefly stated facts are that assessee is a private limited company and engaged in manufacturing & sale of M.S. Ingot, Silico Manganese. The assessee in the year under consideration has received subsidy from Government of Jharkhand for Rs. 25 lakh, which was reduced by the assessing officer from the amount of fixed asset in terms of provision of Explanation 10 to section 43(1) of the Act.

4. Aggrieved, assessee preferred an appeal before learned Commissioner (Appeals). The assessee before learned Commissioner (Appeals) submitted that the subsidy was given to encourage the entrepreneurs for setting up new unit/or expansion of existing unit. The impugned subsidy has no connection with any of the fixed asset. Therefore, the said provision of Explanation 10 to section 43(1) of the Act cannot be invoked. However, learned Commissioner (Appeals) disregarded the claim of assessee and confirmed the order of assessing officer by observing as under:–

“2.3 I have considered the facts of the assessee. After decision of the Apex Court in the case of CIT v. P.J. Chemicals Ltd. (supra), Explanation 10 was inserted in section 43(1) of the Income Tax Act, 1961 with effect from 1-4-1999 as under:–

‘Explanation 10.–Where a portion of the cost of an asset acquired by the se has been mete directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee;

Provided that where such subsidy or grant or reimbursement is of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee.’

2.4 Therefore, from assessment year 1999-00 onwards, the law laid down by the Apex Court in the above mentioned decision no longer remains a good law. In the decisions cited as above by the appellant, even though some of these decisions have been rendered after insertion of Explanation 10 in section 43(1) of the Income Tax Act, 1961, assessment years n question are prior to assessment year 1999-10 and the applicability of Explanation 10 as above has not been discussed. From the above, Explanation and the proviso thereto, it is seen that the assessing officer has taken a correct view in line with the provisions of the statute and no intervention is called for.”

Being aggrieved by this order of learned Commissioner (Appeals) assessee came in second appeal before us on the following grounds:–

“1. For that the learned Commissioner (Appeals) has erred in upholding the reduction of subsidy of Rs. 25,00,000 for the purposes of allowance of depreciation by applying Explanation10 of section 43(1).

2. For that the learned Commissioner (Appeals) has erred in holding that the judgment of the Hon’ble Apex Court in the case of CIT v. P.J. Chemicals Ltd. no longer remains good law after insertion of Explanation 10 to section 43(1) with effect from 1-4-1999.

3. For that the learned Commissioner (Appeals) has failed to appreciate that the subsidy in question was given as an incentive against capital investment made by the appellant on expansion of the second unit and was not given to meet out the cost of a particular asset or block of asset.

4. For that the learned Commissioner (Appeals) has erred in affirming the invocation of Explanation 10 of section 43(1) on the subsidy in question which is different from the subsidy mentioned in Explanation 10 of section 43(1).

5. For that the reduction of subsidy for the purposes of allowance of depreciation is wrong illegal and unjustified as Explanation 10 of section 43(1) is not applicable to the appellant’s case.

6. For that the whole order is bad in fact and law of the case and is fit to be modified.”

5. Before us learned Authorised Representative for the assessee filed paper book which is running pages from 1 to 19 and submitted that the appellate order is not justified in upholding the assessment order by relying on Explanation 10 to section 43(1) of the Act and has erroneously held that the insertion of the Explanation 10 in section 43(1) of the Act was to overcome the judgment of Hon’ble Supreme Court in the case of CIT v. P.J. Chemical (1994) 210 ITR 830 The admitted fact on record is that the subsidy was not granted to the assessee to meet out cost of a particular asset or assets. The same was granted vide letter dated 28-2-2006 (copy enclosed at pages 4 to 6 of the paper book) under the Jharkhand Industrial Incentive Rules, 2003 (copy enclosed at pages 7 to 14 of the paper book. The very purpose for bringing these Rules were to give incentive for setting up of new industrial unit and/or expansion/modernization of the existing unit. The assessee has resorted to expansion of its second unit and has accordingly been granted subsidy of Rs. 25 lakh. He further stated that on perusal of said letter dated 28-2-2006 and the Jharkhand Industrial Incentive Rules, 2003, it is clear that the capital invested by the assessee in factory shed, plant and machinery and electrification were the mode of quantifying the eligible subsidy and the subsidy was not given to reduce the cost of these assets. In this regard, learned Authorised Representative cited a case law of ITAT Vishakhapatnam Bench in the case of Sasisri Extractions Ltd. v. Asstt. CIT (2010) 122 ITD 428 (copy enclosed at pages 15 to 19 of paper book) wherein the Tribunal after considering the Explanation 10 vis-à-vis the judgment of Hon’ble Supreme Court in the case of P.J. Chemicals (supra) have categorically held that–

“Held, allowing the appeal, that the scheme was intended to accelerate industrial development of the State and the incentive was given for setting up of industries in Andhra Pradesh. The amount of subsidy to be given was determined by taking the cost of eligible investment as the basis. The incentive in the form of subsidy could not be considered as a payment directly or indirectly to meet any portion of the actual cost and thus it fell outside the keen of Explanation 10 to section 43(1) of the Income Tax Act, 1961. The subsidy amount could not be reduced from the actual cost of the capital asset.”

Learned Authorised Representative drew our attention of the aforesaid order of ITAT Vishakhapatnam Bench is on all fours to the facts of the present case of assessee so also the judgment of Hon’ble Supreme Court in the case of P.J. Chemical (supra) is clearly applicable and the order of learned Commissioner (Appeals) may be quashed.

On the other hand, learned Department Representative vehemently relied on the order of Authorities Below.

6. We have heard the rival contentions and perused the materials available on record and the case laws cited by the learned Authorised Representative for the assessee. From the above facts and circumstances, the admitted facts are that during the year under consideration assessee-company received incentive subsidy from Govt. of Jharkhand as encouragement for setting up of new industrial project and/or expansion/modernization of the existing unit. It is also a fact that maximum limit of the subsidy was restricted with reference to the value of fixed capital investments in land, building, plant and machinery but no part of the subsidy was specifically intended to subsidize the cost of any fixed asset, therefore, it cannot be said that the subsidy was to meet a portion of cost of the asset. According to us, the assessee has rightly not reduced the amount of subsidy received from the actual cost/WDV of the fixed assets while claiming depreciation. Even Hon’ble Supreme Court in the case of P.J. Chemicals Ltd. (supra) has considered this issue and held that where Government subsidy is intended as an incentive to encourage entrepreneurs to move to backward areas and establish industries, the specified percentage of the fixed capital cost, which is the basis for determining the subsidy, being only a measure adopted under the scheme to quantify the financial aid, is not a payment, directly or indirectly, to meet any portion of the actual cost. Therefore, the said amount of subsidy cannot be deducted from the actual cost under section 43(1) for the purpose allowing depreciation. It is further held that if Government subsidy is an incentive not for the specific purpose of meeting a portion of the cost of the assets, though quantified as a percentage of such cost, it does not partake the character of payment intended either directly or indirectly to meet the “actual cost”. By implication, the above judgment also provides that if the subsidy is intended for meeting a portion of the cost of the assets, then such subsidy should be deducted from the actual cost, for the purpose of computing depreciation. As per Hon’ble Supreme Court, the law is that if the subsidy is asset-specific, such subsidy goes to reduce the actual cost. If the subsidy is to encourage setting up of the industry, it does not go to reduce the actual cost, even though the amount of subsidy was quantified on the basis of the percentage of the total investment made by the assessee.

The law is already settled on the subject. Now, the only wavering is with reference to Explanation 10 provided under section 43(1). The said Explanation provides that where a portion of the cost of an asset acquired by the assessee has been met directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. It is further, provided there under, that where such subsidy or grant or reimbursement of such nature that it cannot be directly relatable to the asset acquired, so much of the amount which bears to the total subsidy or reimbursement or grant the same proportion as such asset bears to all the assets in respect of or with reference to which the subsidy or grant or reimbursement is so received, shall not be included in the actual cost of the asset to the assessee. In order to invoke Explanation 10, it is necessary to show that the subsidy was directly or indirectly used for acquiring an asset. This is again a question of fact. The relatable subsidy to such asset can be reduced from the cost only if it is found that the cost for acquiring that asset was directly or indirectly met out of the subsidy. Likewise in the proviso, it is necessary to show that the subsidy has been directly or indirectly used to acquire an asset but it is not possible to exactly quantify the amount directly or indirectly used for acquiring the asset. Here also, a finding of fact is necessary that an asset was acquired by directly or indirectly using the subsidy. The above Explanation and the proviso thereto do not dilute the finding of the Hon’ble Supreme Court in the case of P. J. Chemicals Ltd. (supra) that asset-wise subsidy alone can be reduced from the actual cost. The above Explanation and the proviso therein attempt to explain the law. They are not bringing any new law different from the law considered by the Hon’ble Supreme Court in the above cases. We also find that the assessing officer has reduced the value of the fixed assets by the amount of subsidy proportionately which also proves that assessing officer has failed to establish the direct connection with the specific assets.

In view of the above facts and circumstances of the case and legal position explained by Hon’ble Supreme Court in the case of P.J. Chemicals Ltd.(supra), we are of the view that Commissioner (Appeals) has wrongly denied the claim of depreciation of assessee.

6.1 We also find that the Hon’ble ITAT Vishakhapatnam in the case of Sasisri Extractions Ltd. (supra) has decided the issue in favor of assessee in the similar facts & circumstances by holding as under :–

“Held, allowing the appeal, that the scheme was intended to accelerate industrial development of the State and the incentive was given for setting up of industries in Andhra Pradesh. The amount of subsidy to be given was determined by taking the cost of eligible investment as the basis. The incentive in the form of subsidy could not be considered as a payment directly or indirectly to meet any portion of the actual cost and thus it fell outside the ken of Explanation 10 to section 43(1) of the act. The subsidy amount could not be reduced from the actual cost of the capital asset.”

In the light of the above discussion, we are of the view that for the purpose of computing depreciation allowable to the assessee, the subsidy amount cannot be reduced from the actual cost of the capital asset. Thus, we have no hesitation to reverse the order of the lower authorities. The assessing officer is directed accordingly. This issue of assessee’s appeal is allowed.

7. In the result, assessee’s appeal stands allowed.

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