Bhushan Steel vs. CIT (Supreme Court)- 15 Dec 2017
Some very useful pointers of the case (for easy reference):
1- The revenue in its appeal argues that the source of the funds and the manner it is collected from the public and also permitted to be retained by the assessee is immaterial for determination as to whether in the hands of the tax payer, it is a capital or revenue receipt. Acknowledging that this position is recognized and well established in law, learned counsel relied upon the decision in Sahney Steel and Press Works Ltd. v. Commissioner of Income Tax: 1997 (228) ITR 253(SC)
2- Learned counsel further discussed "In other words, by allowing the unit to collect sales tax, but not have the corresponding obligation of passing it over to the revenue, the State permitted augmentation of the assessee’s income. No strings were attached to the effect that equipment or any other capital expenditure had to be incurred.
3- It is interesting to note further that ""On the other hand, Ponni Sugars (supra) emphasized that the main eligibility condition and the scheme in that case was that the incentive had to be utilized for repayment of loans taken by the assessee to set up new units or for substantial expansion of existing units. The object of the subsidy, therefore, was to enable the assessee to recoup its capital expenditure. The Court clearly observed that if, on the other hand, the object of the subsidy scheme was to enable the assessee to run the business more profitably, then the receipts were on the revenue account.""
4- It was highlighted that ""The purpose of the subsidy, therefore, clearly was revenue augmentation to ensure greater profitability and economic viability in the particular backward area of Uttar Pradesh aimed at greater growth and higher levels of employment""
5- Learned counsel took the Court through the decisions in Sahney Steel (supra) and Ponni Sugars (supra), to say that neither is the point of time when the subsidy was paid relevant nor is the source or the form of the subsidy relevant but what is relevant is the assistance and its purpose,
6- Section 2(24) of the Income Tax Act and inserted Clause (xvi). It is stated that assistance in the form of subsidy or grant or cash incentive or duty drawback or waiver by Central or State Governments or any authority in cash or kind to the assessee other than subsidy or grant or reimbursement which is taken into account determining the actual cost of the asset, is deemed to be income. It was submitted that this amendment clarifies the intent of Parliament which is that the assistance received otherwise than towards capital augmentation or creation is deemed to be income.
7- It is stated that in Sahney Steel (supra) and Ponni Sugars (supra) the issue decided was, what was the true purpose of the incentive or the subsidy. The end use of the funds was considered as an additional argument to decide the matter either way,
Hence, the absence of any condition towards capital utilization meant that the policy makers envisioned greater profitability as an incentive for investors to expand units, for rapid industrialization of the state, ensuring greater employment. Clearly, the subsidy was revenue in nature.
For reading full text of the case law please refer link - http://itatonline.org/archives/bhushan-steel-vs-cit-supreme-court-taxability-of-subsidies-supreme-court-stays-judgement-of-the-delhi-high-court-in-cit-vs-bhushan-steels-and-strips-which-held-that-if-the-recipient-has-the-flexibil/bhushan-steels-subsidy-revenue-receipt-sc-stay/
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Some very useful pointers of the case (for easy reference):
1- The revenue in its appeal argues that the source of the funds and the manner it is collected from the public and also permitted to be retained by the assessee is immaterial for determination as to whether in the hands of the tax payer, it is a capital or revenue receipt. Acknowledging that this position is recognized and well established in law, learned counsel relied upon the decision in Sahney Steel and Press Works Ltd. v. Commissioner of Income Tax: 1997 (228) ITR 253(SC)
2- Learned counsel further discussed "In other words, by allowing the unit to collect sales tax, but not have the corresponding obligation of passing it over to the revenue, the State permitted augmentation of the assessee’s income. No strings were attached to the effect that equipment or any other capital expenditure had to be incurred.
3- It is interesting to note further that ""On the other hand, Ponni Sugars (supra) emphasized that the main eligibility condition and the scheme in that case was that the incentive had to be utilized for repayment of loans taken by the assessee to set up new units or for substantial expansion of existing units. The object of the subsidy, therefore, was to enable the assessee to recoup its capital expenditure. The Court clearly observed that if, on the other hand, the object of the subsidy scheme was to enable the assessee to run the business more profitably, then the receipts were on the revenue account.""
4- It was highlighted that ""The purpose of the subsidy, therefore, clearly was revenue augmentation to ensure greater profitability and economic viability in the particular backward area of Uttar Pradesh aimed at greater growth and higher levels of employment""
5- Learned counsel took the Court through the decisions in Sahney Steel (supra) and Ponni Sugars (supra), to say that neither is the point of time when the subsidy was paid relevant nor is the source or the form of the subsidy relevant but what is relevant is the assistance and its purpose,
6- Section 2(24) of the Income Tax Act and inserted Clause (xvi). It is stated that assistance in the form of subsidy or grant or cash incentive or duty drawback or waiver by Central or State Governments or any authority in cash or kind to the assessee other than subsidy or grant or reimbursement which is taken into account determining the actual cost of the asset, is deemed to be income. It was submitted that this amendment clarifies the intent of Parliament which is that the assistance received otherwise than towards capital augmentation or creation is deemed to be income.
7- It is stated that in Sahney Steel (supra) and Ponni Sugars (supra) the issue decided was, what was the true purpose of the incentive or the subsidy. The end use of the funds was considered as an additional argument to decide the matter either way,
Hence, the absence of any condition towards capital utilization meant that the policy makers envisioned greater profitability as an incentive for investors to expand units, for rapid industrialization of the state, ensuring greater employment. Clearly, the subsidy was revenue in nature.
For reading full text of the case law please refer link - http://itatonline.org/archives/bhushan-steel-vs-cit-supreme-court-taxability-of-subsidies-supreme-court-stays-judgement-of-the-delhi-high-court-in-cit-vs-bhushan-steels-and-strips-which-held-that-if-the-recipient-has-the-flexibil/bhushan-steels-subsidy-revenue-receipt-sc-stay/
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