CIVIL APPEAL None on 31 March 1995

ORDER

OD – 10 to 12

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE

ITA/133/2012

COMMISSIONER OF INCOME TAX, KOLKATA-II, KOLKATAVERSUSBIRLA CORPORATION LTD.

WITH

ITA/233/2007

COMMISSIONER OF INCOME TAX, KOLKATA-IVERSUSM/S. BIRLA CORPORATION LTD.

WITH

ITA/158/2010

COMMISSIONER OF INCOME TAX, KOLKATA-II, KOLKATAVERSUSM/S. BIRLA CORPORATION LTD.

BEFORE:

The Hon'ble Justice SURYA PRAKASH KESARWANI

The Hon'ble Justice RAJARSHI BHARADWAJ

Date : 13[th] December 2023.

Appearance:

Mr. Vipul Kundalia, Advocate… for appellant in ITA/133/2012.

Mr. Amit Sharma, Advocate… for appellant in ITA/233/2007.

Mr. Tilak Mitra, Advocate… for appellant in ITA/158/2010.

Mr. J.P. Khaitan, Sr. AdvocateMr. Sanjay Bhowmik, AdvocateMs. Swapna Das, Advocate… for respondent.

1. Heard learned counsel for the appellant / Income Tax Department andlearned senior counsel for the respondent/assessee at length.learned senior counsel for the respondent/assessee at length.

2. Learned counsel for the appellant has referred to Section 4-A of U.P. TradeTax Act, 1948 and the relevant notification No.780 dated 31.03.1995 issuedthereunder to contend that tax exemption has been granted on turnover ofsales. It is not a subsidy either for setting up of industry or on capitalgoods. Therefore, the assessing officer has lawfully and correctly held thatthe exemption from tax on sales availed by the assessee and collecting thetax on exempted sales and keeping the same with it, can, by no stretch ofimagination, be said to be a subsidy. Section 4-A of U.P. Trade Tax Act,1948 provides for conditional exemption from tax on sales. Exemption itselfpresupposes liability to tax. Subsidy is in the nature of assistance.Therefore, exemption or partial exemption from tax under Section 4-A readwith the notification in question is not a subsidy at all and in no case asubsidy on capital goods.Tax Act, 1948 and the relevant notification No.780 dated 31.03.1995 issuedthereunder to contend that tax exemption has been granted on turnover ofsales. It is not a subsidy either for setting up of industry or on capitalgoods. Therefore, the assessing officer has lawfully and correctly held thatthe exemption from tax on sales availed by the assessee and collecting thetax on exempted sales and keeping the same with it, can, by no stretch ofimagination, be said to be a subsidy. Section 4-A of U.P. Trade Tax Act,1948 provides for conditional exemption from tax on sales. Exemption itselfpresupposes liability to tax. Subsidy is in the nature of assistance.Therefore, exemption or partial exemption from tax under Section 4-A readwith the notification in question is not a subsidy at all and in no case asubsidy on capital goods.

3. Sri J.P. Khaitan, learned senior counsel for the respondent/assessee praysfor some time to give a fresh look to the controversy.for some time to give a fresh look to the controversy.

4. As prayed by learned senior counsel for the respondent, list on 18.12.2023[at 10:30 a.m.] along with ITA/233/2007 and ITA/158/2010 for furtherhearing.[at 10:30 a.m.] along with ITA/233/2007 and ITA/158/2010 for furtherhearing.

(SURYA PRAKASH KESARWANI, J.)

(RAJARSHI BHARADWAJ, J.)