TaxTMI 
TaxTMI 
2020 (12) TMI 55
X X X X Extracts X X X X
X X X X Extracts X X X X
....The return of income for the year under consideration was filed by it on 28-11-2014 declaring total income of Rs. 7,06,37,830/- under the normal provisions of the Act and Book Profit of Rs. 64,65,80,087/- under section 115JB of the Act. In the said return, dividend income of Rs. 4,89,391/- was claimed to be exempt u/s 10(34) of the Act by the assessee. In relation thereto, the assessee disallowed, demat charges of Rs. 9,844/- and administrative expenses of Rs. 4,89,391/- being amount equivalent to the sum of dividend income earned during the year; u/s 14A of the Act. This disallowance of Rs. 4,99,235/- offered by the assessee was not acceptable to the AO. The AO instead applied Rule 8D and worked out the disallowance in terms of Rule 8D(2)(ii) & (iii) at Rs. 29.31 lacs and Rs. 4.98 lacs respectively. Accordingly the AO disallowed further sum of Rs. 34.29 lacs u/s 14A of the Act read with Rule 8D. Aggrieved by this disallowance, the assessee preferred an appeal before the ld. CIT(A). On appeal the ld. CIT(A) deleted the disallowance. Aggrieved by the impugned order of ld. CIT(A), the Revenue is now in appeal before us. The grounds of appeal preferred by the Revenue on this issue are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ome earned by the assessee. He further relied on the decision of the coordinate Bench of this Tribunal in the case of Patrex Vyapar Limited Vs ITO in ITA No. 1921/Kol./2017 dated 02.01.2019. 5. We have considered the rival submissions and also perused the relevant material available on record. First we will deal with the merit of the disallowance made by AO applying Rule 8D(2)(ii) on account of interest expenses. The Ld. AR of the assessee contended that own funds available with the assessee during the financial year 2013-14 were sufficient to make the corresponding investments, and hence no interest bearing borrowed funds were utilized for making such investment, so no disallowance was warranted on this issue. For appreciating this fact let us have a look at the balance sheet of the assessee as on 31.03.2014, which is placed at Page 19 & 20 of paper-book, it is noted that the assessee's own funds of the assessee in the form of share capital and free reserves stood at Rs. 29,140.79 lacs and the investments as on 31.03.2014 was Rs. 991.45 lacs. Taking note of the aforesaid fact, the interest disallowance of Rs. 29.31 lacs made by the AO u/s 14A by applying Rule 8D(2)(ii) was delete....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the order dated 25.01.2018 passed in ITA Nos. 1634 & 1635/Kol/2016. Therefore, we uphold the impugned order of the ld. CIT(A) deleting the disallowance made by the Assessing Officer on account of interest under section 14A read with Rule 8D(2)(ii). 7. As regards the disallowance of Rs. 4.98 lacs made by the AO on account of common administrative expenses under section 14A read with Rule 8D(2)(iii), it is observed that the same was restricted by the ld. CIT(A) to the extent of exempt dividend income actually earned by the assessee during the year under consideration by following, the decision of the Hon'ble Delhi High Court in the case of Joint Investment Limited -vs.- CIT (372 ITR 694). It is noted that the aforementioned judgment of the Hon'ble Delhi High Court has been followed by this Tribunal in the case of Patrex Vyapar Limited Vs ITO (supra) wherein this Tribunal restricted the disallowance of Rs. 8,81,839/- made by AO u/s 14 read with Rule 8D to Rs. 72,000/- i.e., the dividend actually earned during the year. Hence, we do not see any reason to interfere with the impugned order of the ld. CIT(A) restricting the disallowance made on account of the common administrative expe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re that, in the return of income filed u/s 139 of the Act, the assessee had claimed deduction u/s 80IE of Rs. 52,53,13,324/- in respect of the profits derived by its eligible 'Centply' Unit in the State of Assam. The case of the assessee was selected for regular scrutiny under CASS. In the notice issued u/s 142(1) dated 07-06-2016 the AO had called for the details of the deduction's claimed under Chapter VI-A inter alia including the details of the eligible undertaking/s along with relevant stand-alone accounts and audit report. In response thereto, the assessee had furnished its reply vide letter dated 02-12-2016 wherein it had inter alia set out a note on deduction claimed under Section 80IE of the Act in respect of the profits derived by the Centply Unit located in the State of Assam, which was in its 6th year of claim. Along with the said note, the appellant also enclosed the relevant audit report in Form 10CCB issued by the Chartered Accountant and the stand-alone audited accounts of the eligible Assam Unit. On the last date of hearing i.e. 30-12-2016, vide an order sheet entry; the AO directed the A/R of the assessee to explain the reasons for higher profitability of the elig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....He submitted that the assessee had failed to explain the reasons of high profitability of the Centply Unit before the AO and therefore the AO was well within his powers to work out the adjustment u/s 80IE so as to arrive at the arm's length profits of the eligible unit. According to him the arguments put forth by the assessee before the ld. CIT(A), were not available before the AO and therefore he urged that this issue be set aside to the file of the AO. 12. Per contra Shri Akkal Dudhwewala, Ld. AR of the assessee supported the order of the ld. CIT(A) and vehemently opposes the plea of the Ld. CIT, DR to remand the issue back to AO. First of all, he drew our attention to the entire chronology of events which led to the disallowance made by the AO u/s. 80IE of the Act. He submitted that the eligible Assam Unit was set up in the AY 2009-10and its first year of claim of deduction u/s 80IE was AY 2010-11. The relevant AY 2014-15 was therefore the 6th year of claim. Inviting our attention to the assessment orders passed u/s 143(3) for AYs 2010-11 to 2012-13 placed at Pages 193 to 241 of the paper book, he pointed out that in all the earlier years the Revenue had allowed the deduction, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and, upon being satisfied with the explanation offered, no disallowance was made in relation to the claim made u/s 80IE of the Act in AY 2015-16. On these facts therefore, the ld. AR contended that when the audited stand-alone accounts of the eligible unit as well as its profitability has been accepted by the Revenue in the preceding years and in the subsequent year as well, then in absence of change in the factual matrix, there was no reason for the AO to hold the claim made u/s 80IE in the relevant year to be excessive. 14. The Ld. AR further submitted that the impugned disallowance was not made by the AO in terms of Section 92A of the Act. He submitted that it was not a case where the AO had pointed out any defect in the arm's length value of the specified domestic transactions undertaken by the eligible unit which could have enabled him to estimate the arm's length value of the said transactions resulting in downward adjustment of the eligible profits. He submitted that the AO proceeded to estimate the profits of the eligible unit on the premise that it was higher in comparison to other units. According to the ld. AR, before doing so, neither did the AO point out as to which....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nai, Haryana & Kandla, all of which are ineligible units. He noted that the assessee also operates an eligible manufacturing undertaking by the name, 'Cent Ply', located in industrially backward State of Assam. The AO observed that the profitability of the eligible business was 33.50% in comparison to the profitability of other units at 4.84%, which according to him was excessive. According to AO, the units located in backward areas could not be more profitable than units located in developed areas and therefore in his view it was nothing but diversion of profits. He further noted that the profit of the eligible had increased from 28.34% to 33.50% in comparison to earlier year. Citing preponderance of probabilities, the AO held that the assessee had shifted profits from non-eligible business to eligible business and that, merely because the deduction claimed u/s 80IE was allowed in earlier years, he was not bound to allow the same in relevant year. For such reasons he estimated the reasonable profitability of eligible Centply Unit at 19.17% and thereby disallowing sum of Rs. 22,47,63,955/- out of the total claim of Rs. 52,53,13,324/- made u/s 80IE of the Act. 18. On a perusal of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er than other units in developed areas, then the onus lay on the AO to establish the same with cogent material and corroborative evidence on at least find fault or infirmity in the books produced by the assessee. We however note that the AO clearly failed to do so. Nothing tangible was brought on record to support such reasoning. Instead the disallowance was made on the last ray of assessment purely on suspicion. 20. According to us, the fact that high profits were earned by the eligible unit in comparison to other businesses by itself cannot lead to conclusion that the deduction claimed u/s 80IE was excessive. In this regard, it would first be relevant to examine the provisions of sub-section (10) of Section 80-IA of the Act which empowers the AO of the assessee having eligible business to scale down the profits which provision has been incorporated by sub-section (6) of section 80IE by virtue of which sub-section (5) and subsection (7) to (12) of section 80IA has been incorporated in to section 80IE of the Act. The relevant extracts of the provision of section 80IA(10) of the Act is as follows: "(10) Where it appears to the Assessing Officer that, owing to the close connection....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es as contemplated section 80IA(10) of the Act has to be necessarily proved by the AO with tangible evidence. And unless such 'arrangement' or 'manipulation' is shown to exist by the AO, there can be no question of discarding the declared actual profit and substituting it with a reasonable profit. Thus, from the discussion, it is clear that there is a condition precedent before the AO invokes the deeming provision for estimating the reasonable amount of profit of the eligible unit. First the AO has to discharge the burden that assessee has made an 'arrangement' between it and the related parties and due to such an arrangement, it lead to higher profit of the eligible unit. Therefore, the high profit must necessarily be the consequence of such an arrangement between the assessee and the related parties, which has been exposed by the AO. So first of all, the mere higher profit earned by such eligible assessee can be no reason to conclude that the assessee transacted in such an 'arranged' manner with its related persons so as to produce more profits to it. To put it simply, if such an 'arrangement' is a 'cause', the higher profit is its 'effect'....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Unit. We further note that the product profile manufactured by the eligible unit was also different. It is noted that the eligible Assam unit manufactured both plywood and block boards, whereas the units at Joka & Chennai were only manufacturing plywood. Due to difference in nature of products manufactured, the margins varied. Moreover it is noted that the eligible unit was able to procure their primary raw material i.e. veneer in the range of Rs. 20 to Rs. 25, whereas the ineligible unit at Karnal was procuring them in the range of Rs. 25 to Rs. 35 [Pages 142 to 162 of paper book]. We further note that the Ld. CIT(A) had also called for the details of electricity expenses, from which it was gathered that the per unit cost of electricity at the eligible Assam Unit was in the range of Rs. 4.93 to Rs. 6.12, whereas, on the other hand, the per unit electricity cost at Karnal and Joka was in the range of Rs. 7.93 to Rs. 8.22 [Page 175 of paper-book]. We further note that the cost of wages per worker in the eligible unit located in backward area was around Rs. 3500/- per month whereas in the unit at Karnal and Joka it averaged around Rs. 5500/- and Rs. 8000/- approx. [Page 174 of paper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g with comparative details of sales made to unrelated third parties [Pages 129 to 130 of paperbook]. It is noted that the rates at which the different products were supplied to depots was comparable with that the rates at which the same product was sold to third parties. We further note that the rates at which the eligible Assam Unit recognized the supplies in its books to Units/Depots was in conformity with the valuation Rules set out in Rule 7 of the Central Excise Valuation (determination of price of excisable goods) Rules, 2000. On perusal of the said Rule 7, we note that where the goods are supplied to related parties, then even in terms of the excise laws, irrespective of the transacted value, the excise duty is payable by the manufacturing unit at the "market value" of the product prevailing at the point of destination on the date of removal of the goods. From the audit report issued Central Excise Audit for the relevant financial year 2013-14, it is noted that the Central Excise Department did not dispute the invoice rates at which the goods were transferred by the eligible Assam Unit to its depots, which also showed that the goods were cleared by the eligible Assam Unit a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e AO. For the reasons as aforesaid, we thus find substance in the argument of the ld. AR that AO's action of estimating the profit of eligible unit was erroneous and therefore we reject this contention of the ld. CIT, DR. Moreover, we also note that, it is not a case where the AO had invoked Section 145(3) of the Act and rejected the book results and has passed the order u/s 144 of the Act. We thus find merit in the findings recorded by the ld. CIT(A) that the AO could not have legally ventured into estimation of profits without rejecting the books of accounts u/s 145(3) of the Act. 28. Coming to the AO's observation that the profits for AY 2014-15 had increased in comparison to earlier year and therefore the rule of consistency did not apply. We note that the relevant year in question is the 6th year of claim of deduction u/s 80IE of the Act. It is noted that in the income-tax assessments from the first year of claim i.e. AY 2010-11 and AYs 2011-12 & 2012-13 were completed u/s 143(3) and the deductions as claimed u/s 80IE in the return of income was allowed to the assessee. From the comparative chart furnished at Page 192 of paper book, it is noted that the profit margins in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year." 29. Now we proceed to deal with the ld. CIT, DR's contention that, the assessee did not furnish these explanations before the AO and therefore the matter should be set aside to him. In this regard, we note as a matter of fact that the AO never gave proper show cause to the assessee before making such estimated disallowance. It was vide an order sheet entry dated 30.12.2016 i.e. the same date on which he passed the assessment order, that the assessee was put to notice to explain the reasons for higher profitability. Such action of the AO done in haste amounted to violation of principles of natural justice. Further, as observed supra that, the burden lay on the Revenue, to first demonstrate that the transactions between the assessee and the other related person were 'arranged' with a view to produce more profit to the assessee carrying on eligible business, and not the other way round. It was on this principle reason that the ld. CIT(A) allowed the appeal of the assessee. The ld. CIT(A) further took note of the fact that the profitability of the eligible Assam Unit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out above therefore, we do not find any reason to interfere with the order of the ld. CIT(A) and accordingly uphold the same. Ground Nos. 5 to 7 of the Revenue's appeal therefore stands dismissed. 32. Now we shall take up the Cross-objections filed by the assessee in C.O No.22/Kol/2020. These cross objections filed by the assessee is barred by limitation by 341 days. The Assessee has moved a petition requesting the Bench to condone the delay. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the petition and for rendering substantial justice, we condone the delay and admit these cross objections filed by assessee. 33. Ground No. 1 raised in this Cross Objection is as follows: "(1) For that on the facts and in the circumstances of the case and in law, the Education Cess and the Secondary and Higher Education Cess incurred by the assessee is deductible while computing profits from business and in that view of the matter, the AO may be directed to allow deduction thereof." 34. At the outset, the ld. AR mentioned that this issue now stands covered by the judgement of the Hon'ble Bombay High Court in the case of Sesa Goa Ltd. v. Jt.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of substantial justice prevails over all technical aspects. Their lordships' latter decision in National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC) also held that the tribunal can very well entertain an additional ground/issue in order to determine correct tax liability of an assessee provided all the relevant facts are already on record. We hold in view of the foregoing pleadings and settled legal proposition that the impugned delay of 1535 days in filing deserves to be condoned. We order accordingly. The assessee's cross-appeal ITA No.485/Kol/2019 is taken for adjudication. 9. Adverting to the assessee's sole substantive grievance seeking to delete its educational cess disallowance made in both the lower proceedings u/s 40(a)(ii) of the Act, hon'ble Rajasthan high court and as well this tribunal (supra) have already held the same to be not sustainable. Learned CIT-DR took pains to refer to the tribunal's latter decision in ACIT v. Srei Infrastructure Finance Ltd. [IT Appeal No.1302-1318 (Delhi) of 2012 Dated 27.02.2019] that the issue stands adjudicated in the Revenue's favour. We are informed that the hon'ble jurisdictional high court ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (es) as deduction u/s 37 of the Act. The assessee's appeal I.T.A. No. 685/Ko/2014 is partly accepted in above terms." However, the ld. DR for the Revenue submitted before the Bench that the Income Tax Appellate Tribunal (ITAT), Kolkata in the case of Srei Infrastructure Ltd, in ITA No.1302/Del/2012 and ITA No.1318/Del/2012, for A.Y. 2008-09, order dated 27.02.2019 held that the education cess is not allowable expenditure under section 37(1) of the Act. On appeal by assessee, the Hon'ble High Court of Calcutta, vide ITAT No.121 of 2019, order dated 08.08.2019, has remanded the matter back to the ITAT Kolkata to reconsider the issue. Hence there is no contrary view on this issue which survive as on date. Therefore, respectfully following the judgment of this Coordinate Bench in the case of ITC Limited (supra), we allow the claim of the assessee." 36. Respectfully following the judgments rendered by the Hon'ble Bombay High Court & Rajasthan High Court and the binding decisions of this Tribunal, we thus direct the AO to allow the deduction of the education cess in computing total income of the assessee company. Ground No. 1 of the cross objection therefore stands allowed. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is noted that the said exemption was given to the new units for development of Industries and generation of employment in the North Eastern States. In this regard relevant extracts of Notification No. 20/2007 is reproduced below:- "5. The exemption, contained in this notification shall apply only to the following kind of units, namely; a) New Industrial units which commence commercial production on or after the 1st day of April, 2007 but not later than 31st day of March, 2017; b) Industrial Units existing before the 1st day of April, 2007 but which have undertaken substantial expansion by way of increase by not less than 25% in the value of fixed capital investment in plant and machinery for the purposes of expansion of capacity/modernization and diversification and have commenced commercial production from such expanded capacity on or after the 1st day of April, 2007 but not later than 31st day of March, 2017." 40. During the relevant year the assessee was also in receipt of subsidy in form of refund of sales tax/VAT from the State of West Bengal under the West Bengal Incentive Scheme, 2000 which was formulated expressly for the purpose of attracting private investment in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assistance was not to enable the assessee to run the business more profitably but encourage them to set up a new unit or expand the existing unit for overall economic development of the State. Referring to the decision of the Hon'ble Supreme Court in the batch of cases, with its lead order in the matter of CIT Vs Chaphalkar Brothers (400 ITR 279), the ld. AR contended that, it is now well settled that subsidies granted under the State Industrial Schemes formulated with the object to accelerate industrial development and generate employment, is capital in nature and therefore not liable to income-tax. He accordingly contended that even while computing book profit u/s.115JB of the Act, these subsidies should be excluded though it is credited in the profit and loss account. In support of this proposition, he relied on the judgment of the Hon'ble jurisdictional High Court in the case of Pr. CIT vs Ankit Metal & Power Ltd (416 ITR 591) and the decisions rendered by this Tribunal in the cases of DCIT vs Emami Biotech Ltd. in ITA No. 1915/KOL/2017 and SICPA India (P) Ltd. vs DCIT (80 taxmann.com 87). Per contra, the Ld. CIT, DR argued that since this claim was not made before the AO by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pt Mr. Narasimha's argument that it is only the immediate object and not the larger object which must be kept in mind in that the subsidy scheme kicks in only post construction, that is when cinema tickets are actually sold. We hasten to add that the object of the scheme is only one -there is no larger or immediate object. That the object is carried out in a particular manner is irrelevant, as has been held in both Ponni Sugar and Sahney Steel. 23. Mr. Ganesh, learned Senior Counsel, also sought to rely upon a judgment of the Jammu and Kashmir High Court in Shree Balaji Alloys v. CIT [2011] 9 taxmann.com 255/198 Taxman 122/ 333 ITR 335. While considering the scheme of refund of excise duty and interest subsidy in that case, it was held that the scheme was capital in nature, despite the fact that the incentives were not available unless and until commercial production has started, and that the incentives in the form of excise duty or interest subsidy were not given to the assessee expressly for the purpose of purchasing capital assets or for the purpose of purchasing machinery. 24. After setting out both the Supreme Court judgments referred to hereinabove, the High Court fou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sions is to bring out the true working result of the companies. As held in the preceding paras, the subsidies received by the assessee were capital in nature and therefore not liable to tax. In the circumstances therefore, inclusion of such capital receipt in the computation of book profit u/s 115JB would defeat two fundamental principles. Firstly, it would levy tax on receipt which is not in the nature of income at all and secondly it would not result in arriving at real working results of the company. We thus find merit in the assessee's claim that the said subsidies being capital in nature, deserves to be excluded from the computation of book profit u/s 115JB of the Act. 46. It is noted that in the context of similar State Industrial Scheme, the jurisdictional Hon'ble Calcutta High Court in the case of Pr.CIT Vs Ankit Metal and Power Ltd (416 ITR 591) held that subsidies received for setting up new industry is not in the nature of income and therefore cannot be deemed as income for the purposes of computing book profit u/s 115JB of the Act. In the decided case the assessee had received interest subsidy under the WB Incentive Scheme, 2000 and power subsidy under the Power Intens....
X X X X Extracts X X X X
X X X X Extracts X X X X
....main issue that arises for consideration on the basis of the grievance projected by the Revenue in the aforesaid ground No.2 is as to whether the excise duty refund which were held by the CIT(A) to be capital receipts not chargeable to tax can still be considered as part of the book profits u/s.115JB of the Act, even though these sums have been credited in the profit and loss account and treated as income and even though the exclusion of these sums for the purpose of computing book profit u/s.115JB has not been specifically provided under explanation below Sec.115JB (2) of the Act. In rejecting the claim of the Assessee in this regard, the AO held that these sums have been credited in the profit and loss account and treated as income and exclusion of these incomes (sums) for the purpose of computing book profit u/s.115JB has not been specifically provided under explanation below Sec.115JB (2) of the Act. 22. We have heard the submission of the learned counsel for the Assessee. As far as the excluding the subsidies in question from computation of book profit u/s 115JB of the Act is concerned, the provisions of Sec.115JB of the Act have to be looked at. Section 115JB of the Act pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w of the aforesaid decision of the Hon'ble High Court rendered on identical facts as that of the Assessee's case, there can be no doubt that subsidies in question does not have any character of income. 24. When a receipt is not in the character of income, can it form part of the book profits for the purpose of Sec.115JB of the Act, is the question that arises for consideration. The ITAT Kolkata Bench in the case of Dy. CIT v. Binani Industries Ltd. [2016] 178 TTJ 658 : had to deal with a case where the question was as to whether receipts on account of forfeiture of share warrants amounting to Rs. 12,65,75,000/-, being a capital receipt, would be liable for taxation u/s 115JB. The tribunal after referring to several decisions on the issue viz., the Hon'ble Apex Court in case of Indo Rama Synthetics (I) Ltd. v. CIT [2011] 330 ITR 336/9 taxmann.com 25, Apollo Tyres Ltd. v. CIT [2002] 255 ITR 273/122 Taxman 562 (SC), Special Bench ITAT in the case of Rain Commodities Ltd. v. Dy. CIT [2010] 40 SOT 265 (Hyd.) (SB), ITAT Luknow Bench in the case of ACIT v. L.H. Sugar Factory Ltd. and vice versa in ITA Nos. 417 , 418 & 339/LKW/2013 dated 9.2.2016 and decision of Mumbai ITAT....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ceipts not chargeable to tax and hence not in the nature of income were held not included in the book profits. The Bench also referred to the decision of the Mumbai Bench of the ITAT in the case of Shivalik Venture (P.) Ltd. (supra) which was a case where the question was whether profits arising on transfer of a capital asset by a company to its wholly owned subsidiary company which is not treated as income" u/s 2(24) of the Act and since it does not form part of the total income u/s.10 of the Act and therefore does not enter into computation provision at all under the normal provisions of the Act, the same should be considered for the purpose of computing book profit u/s 115JB of the Act. The Mumbai Bench held as follows: '26. We shall now examine the scheme of the provisions of sec. 115JB of the Act. It is pertinent to note that the provisions of sec. 10 lists out various types of income, which do not form part of Total income. All those items of receipts shall otherwise fall under the definition of the term "income" as defined in sec. 2(24) of the Act, but they are not included in total income in view of the provisions of sec. 10 of the Act. Since they are considered as "i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned, we note that the claim raised by the assessee is legal in nature in as much as the primary details of the subsidies received during the year was available before the lower authorities. The paper book filed by the assessee in this regard comprised of the relevant Notifications and the judicial precedents on this subject. It is noted that the assessee had not raised this claim earlier due to the complex legal position on the issue which has now been adjudicated by the Hon'ble Calcutta High Court in the case of Pr.CIT Vs Ankit Metal and Power Ltd (supra) on 09.06.2019. We observe that the Hon'ble Gujrat High Court in the case of CIT vs. Mitesh Impex (270 CTR 66) after considering the decisions rendered by the Hon'ble Apex Court in the case of NTPC Vs CIT (229 ITR 383) and Goetze (India) Ltd. vs. CIT (284 ITR 323) has held that that, if a claim which is available in law is not raised either inadvertently or an account of erroneous plea of complex legal position, such a relief cannot be shut up for all the times to come merely because it is raised for the first time in appellate proceedings in absence of a revised return filed before the Assessing Officer. 54. We further note ....