ACIT 11(1), MUMBAI vs. FUN MULTIPLEX P.LTD, MUMBAI

The solitary issue raised by the Revenue in this appeal is with regard to action of Ld. CIT(A) in cancelling the order passed u/s 154 by the AO wherein AO had reduced the amount of entertainment tax subsidy of Rs.8.38 crore from the block of the assets for the purpose of computing depreciation. 3.1. Brief facts and background of the issue involved before us are that in this case original assessment was passed u/s 143(3) for the impugned assessment year wherein the AO had held that the Entertainment Tax Subsidy received by the assessee amounting to Rs.8.38 crores was revenue receipt 3 Fun Multiplex P. Ltd. whereas, the assessee on the other hand was of the opinion that the said receipt was capital in nature and hence not taxable. Hence, the assessee appealed against the assessment order before the CIT(A), who vide his order dated 20-07-2011 agreed with the assessee that Entertainment Tax Subsidy was a capital receipt in view of the judgment of Hon’ble Bombay High Court in the case of Chappalkar Brothers. In pursuance to the order of the CIT(A), the AO, vide order dated 09-09-2011, gave relief of R3.8.38 crores; thereby computing the total income at a loss of Rs.1,34,48,250/-, as against earlier assessed income of Rs.7,03,80,046/-. Subsequently, vide notice dated 21-11-2013 u/s 154 / 155 of the Act, the assessee was asked to show cause as to why depreciation on subsidy should not be disallowed. In response to the said notice, the assessee submitted that in view of the order of the Tribunal in the case of M/s. PVR Ltd., and the order of the Supreme Court in the case of PJ Chemicals Ltd., the said subsidy cannot be reduced from the 'actual cost’, as defined in section 43(1). The AO, however, disagreed with the assessee and held that the subsidy was given for the construction of multiplex theatre complex and was hence, reducible from the cost of construction. Accordingly, the AO disallowed deprecation amounting to Rs.63,86211/-. 3.2. Being aggrieved, the assessee filed an appeal before the Ld. CIT(A) and contested the order passed u/s 154 by the AO on various grounds. It was contended by the assessee that 4 Fun Multiplex P. Ltd. issue involved is beyond the scope of section 154 proceedings. On merits also, the assessee submitted that impugned amount was capital receipt and not against any particular asset and therefore it could not have been reduced from any particular asset. Ld. CIT(A) considered the submissions of the assessee and found substance in the contention of the assessee and held that AO did not have jurisdiction u/s 154 to rectify the order giving effect to the order of the Ld. CIT(A) on the issue in the hands and therefore, he annulled impugned order u/s 154 with following observations: “I have perused the facts in the matter and the provisions of section 154. The first objection of the appellant is that the AC cannot amend / rectify an order of the CIT(A). As pointed out supra, the AO, vide his notice u/s.154, had given the following show cause: 'While passing order giving effect to CIT(A) 's order depreciation allowed on Subsidy in assessment order is not disallowed." 1.4 In order words, the AO has found fault in the order of the CIT(A), in as much as, the CIT(A) has not disallowed depreciation while holding that the 'Entertainment Tax Subsidy' was capital in nature. The provisions of section 154(1) and (1A) make it clear that the authority passing the order under that section may amend any order passed by it. Thus, an order passed by an appellate authority cannot be amended by the Assessing Officer. In the instant case the issue of depreciation on Subsidy was neither adjudicated by the AO in his order u/s 143(3) or the by the CIT(A) in his order u/s 251. The AO has now sought to rectify the order giving effect to the order of the CIT(A) by disallowing depreciation on the subsidy amount. This would indirectly amount to rectifying the CIT(A)'s.. I find that a similar issue arose before the Bombay High Court in the case of VS Dempo & Co., cited supra. In that case the facts were that in the order u/s 143(3) the AO disallowed claim 5 Fun Multiplex P. Ltd. of depreciation on the amount incurred by the assessee on account of customs duty payable. The Tribunal held that the assessee was entitled to the deprecation on the amount of customs duty payable. The AO, contrary to the directions of the Tribunal rectified the order giving effect to order of the Tribunal u/s.154 and held that the order of the Tribunal was contrary to the decision of the Supreme Court in ACIT vs. Dunlop India Lid. This order of the AO was quashed by the Tribunal. The question raised by the Department before the High Court was whether the Tribunal was correct in quashing the order of the CIT(A) and the AC rectifying the order u/s.154 in view of the Subsequent judgment of the Supreme Court. The Bombay High Court dismissed the appeal of the Department, as follows: • A plain reading of sub-sections (1) & (IA) of section 154 makes it clear that the authority passing the order can, amend the order. Thus, for instance, an. order passed by the Commissioner (Appeals) cannot be amended by the Assessing Officer and an order passed by the Tribunal cannot be amended by the Commissioner (Appeals) or the Assessing Officer. In any event, neither the Assessing Officer nor the Commissioner (Appeals) can sit in judgment over the decision of the Tribunal and they cannot correct an order of the Tribunal. The matter regarding the claim for depreciation stood concluded, as for as the Assessing Officer, The Commissioner (Appeals), as well as the Tribunal are concerned. If the Revenue considered the order of the Tribunal incorrect, it was bound to challenge the some in accordance with law. The Assessing Officer was not entitled suo motu under section 154 to do so. [Para 9] • A view to the contrary would result in a totally chaotic situation, leaving if open to the Assessing Officer, the Commissioner (Appeals) to ignore the orders of the Tribunal and, in fact, set them aside and rendered them nugatory. As rightly held by the Tribunal, section 154 can be invoked in respect of an order by the Assessing Officer who passes the order; Assessing Officer cannot invoke section 154 in respect of the orders passed by the 6 Fun Multiplex P. Ltd. appellate authorities - whether it is the Commissioner (Appeals) at the ITAT. In other words, the Assessing Officer can rectify a mistake in his own orders and not in the orders passed by the appellate authorities. [Fore 10]-----“ 1.5 Keeping in view the ratio of the above decision, the AO was incorrect in rectifying the order giving effect to the order of the CIT(A). The order of the AC, therefore, is erroneous to that extent. 1.6 Even otherwise I find that the order of the AO u/s 154 cannot be upheld, in as much as, the AO ought to rectify an issue which is highly debatable. On similar facts the Delhi Tribunal in the case of M/s. PVR Ltd. (ITA No.1897/DeI./2010) had held that Entertainment Tax Subsidy, being for the promotion of Cinema / Multiplex Industry will not reduce the cost of the asset directly or indirectly in terms of Explanation 10, to section 43(1). The Delhi Tribunal based its view upon the judgment of the Supreme Court in Ri Chemicals Ltd., (Supra) and the Visakhapatnam Bench of the Tribunal in the case of Sasisri Extractions Ltd., 307 ITR (AT) 127. It thus appears that even on merits the judicial view is that Entertainment ax Subsidy would not be hit by Explanation 10, to Section 43(1). In any case the issue is highly debatable. The assessing authority had no jurisdiction to revise the assessment order. This is the principle laid down by the Supreme Court in T.S. Balaram, ITO v. Volkart Bros.[1971] 82 ITR 50]. In the said case, the Supreme Court, after considering the fact that the mistake rectified was not an error or mistake apparent on the face of record, observed as follows :- "5. . . . A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with low though in our opinion the High Court was not justified in going into that question. In Sotycnarayan Laxminarayan Hegde v. Millikorjun Bhavanappa Trumale (AIR 1960 SC 137) This court while 7 Fun Multiplex P. Ltd. spelling out the scope of the power of a High Court under Article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record-see Sidhrarrappa v. CIT, Bombay (21 ITR 333). The power of the officers mentioned in section 154 of the Income-tax Act, 1961 to correct any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an 'error apparent on the face of the record. In this case it is not necessary for us to spell out the distinction between the expressions 'error apparent on the face of the record and 'mistake apparent from record'. But suffice it to say that the Income Tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. 1.7 In view of the above decision of the Supreme Court, I find that the AO did not have the jurisdiction u/s.154 to rectify the order giving effect to the order of the CIT(A), on the issue in hand. Therefore, even on this ground the order u/s.154 cannot be upheld. Hence the said order is annulled and set aside. 3.3. Being aggrieved, the Revenue filed an appeal before the Tribunal. 3.4. During the course of hearing, Ld. DR relied upon the orders of the lower authorities. On the other hand, Ld. Counsel of the assessee submitted that Tribunal has decided this issue in favour of the assessee by holding that impugned amount was capital receipt. It has not been held anywhere that impugned amount has been received against any particular asset. It was further submitted that in any case the issue involved is beyond the scope of order passed u/s 154 as there was no mistake much less mistake apparent from 8 Fun Multiplex P. Ltd. records. In any case, this action could not have been taken by the AO while passing appeal effect order to the order of Ld. CIT(A). Thus, viewed from any angle, action of the AO is legally invalid and beyond jurisdiction. 3.5. We have gone through the orders of the lower authorities, facts of this case and submissions made by both the sides before us and orders passed by the Tribunal in assessee’s own case in earlier and subsequent years. It is noted that the Tribunal in A.Ys. 2008-09 and 2009-10 held that amount received by the assessee on account of Entertainment Tax Subsidy is capital receipt. The AO had treated the same as revenue receipt in the assessment order. The action of AO has been reversed by the Tribunal by holding the same to be capital receipt. Under these circumstances, while giving effect to the order of the higher authorities, the AO was not permitted to rake up another issue by correlating the amount of receipts against any particular asset and reducing the same from the cost of the asset and thereby denying the benefit of depreciation on the amount so reduced. Neither there were any such facts nor any such findings in the order or record available with the AO so as enable him to correlate the impugned amount of subsidy received by the assessee against any particular asset. Under these circumstances, we agree with the reasoning given by Ld. CIT(A) that action of AO could not have been subject matter of the impugned rectification proceedings initiated u/s 154 of the Act. It is further noted by us that in A.Y. 2009-10, the AO has simply give effect to the order of the Tribunal for treating the impugned amount as 9 Fun Multiplex P. Ltd. capital receipt in the hands of assessee. It is informed that the AO did not reduce this amount from the cost of any particular asset. Thus, we find that there was no justification on the part of the AO in doing so in the impugned year and that too by way of proceedings u/s 154 and that too after passing the order giving effect to the order of Ld. CIT(A). Thus, viewed from any angle the order passed by the AO u/s 154 was contrary to law and facts and beyond jurisdiction and therefore same has been rightly annulled by the Ld. CIT(A). No interference is called for in the order of Ld. CIT(A) and the same is upheld.

Order pronounced in the open court on 9th September, 2016.