The Income-tax Officer, Kathua V. Smt. Harbhajan Kaur, Kathua

ITA 139/ASR/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7727 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO. 139(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :AAWPK6944R INCOME TAX OFFICER, VS. SMT. HARBHAJAN KAUR, KATHUA. KATHUA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L. CHHANALIA, DR RESPONDENT BY:SH. SUSHIL KUMAR, ADV. DATE OF HEARING:27/06/2012 DATE OF PRONOUNCEMENT: 03/07/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER OF THE CIT(A), JAMMU, DATED 28.01.2012 FOR THE ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTIO N U/S 80IB ON CENTRAL EXCISE DUTY REFUND BY RELYING UPON ORDERS O F HON'BLE HIGH COURT IF J&K, JAMMU WHICH HAS BEEN DELIVERED NOT O N MERITS OF THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEI PT ONLY BECAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACK LING THE UNEMPLOYMENT IN THE STATE WHICH CANNOT BE SAID TO B E A GOOD TEST FOR DECIDING WHETHER A RECEIPT IS A TRADING RECEIPT OR A CAPITAL RECEIPT. 2 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT APPRECIATING THE JUDGMENTS OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF PONNI SUGAR & SAWHNEY STEEL AND PRESS WORKS LTD, WHEREIN THE HON'BLE SUPREME COURT HAD HELD SUCH RECEIPTS TO BE THE REVE NUE RECEIPTS IN AS MUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AFTER THE INDUSTRIES HAD BEEN SET UP AND PAYMENTS WERE NOT MADE FOR PURPOSE OF SETTING UP OF INDUSTRIES. 3. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT CONSIDERING THE DECISION IN THE CASE OF SEAHAM HARBOUR DOCK COMPANY WHICH LAYS DOWN TWO IMPORTANT TESTS FOR DETERMINING WHETHER RE CEIPTS IS A TRADING RECEIPT OR A CAPITAL RECEIPT. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT APPRECIATING AND APPLIED THE PURPOSE TEST AS LAID DOWN BY THE JUDGME NTS OF THE HON'BLE SUPREME COURT. IN THE CASE OF ASSESSEE, THE MONEY RECEIVED BY THE ASSESSEE ON ACCOUNT OF REFUND OF CENTRAL EXCISE WAS NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. REGARDING ADDITION ON ACCOUNT OF DISALLOWANCE OF EP F 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTION U/ S 80IB ON ADDITION MADE ON ACCOUNT OF LATE DEPOSIT OF EPF AS THE ASS ESSEE HAS CONTRAVENED THE PROVISIONS OF THE ACT, IN VIEW OF T HE DECISION OF JURISDICTIONAL BENCH IN THE CASE OF M/S. KASHMIR TU BES REPORTED IN ITA NO.145(ASR)/2005 DATED 07.12.2007 WHERE SUCH DI SALLOWANCES WERE UPHELD BY THE HONBLE ITAT, AMRITSAR. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIAL AVAILABLE WITH US. WE ARE OF THE VIEW THAT AS REGA RDS THE ISSUE INVOLVED IN GROUND NOS. 1 TO 4 RELATING TO DEDUCTION UNDER SEC TION 80IB ON EXCISE DUTY REFUND, IT IS AN ADMITTED FACT THAT THE ISSUE IN DI SPUTE HAS ALREADY BEEN 3 ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE B Y THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMI R IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) BY HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. 2.1. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO DE CIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY RELYING UPON THE DECISION OF TH E HON'BLE JURISDICTIONAL HIGH COURT OF J & K, IN THE CASE OF SHREE BALAJI A LLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K). THEREFORE, RESPECTFULLY F OLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SURPA), WE D ISMISS GROUND NOS. 1 TO 4 OF THE REVENUE RELATING TO EXCISE DUTY REFUND. 3. AS REGARDS ADDITION ON ACCOUNT OF DISALLOWANCE OF EPF, WE ARE OF THE VIEW THAT THE ISSUE IN DISPUTE IS SQUARELY COVERE D BY THE DECISION OF HONBLE ITAT, AMRITSAR BENCH IN THE CASE OF M/S. SU N PHARMACEUTICALS, IN ITA NO.184(ASR)/2009 FOR THE ASSESSMENT YEAR 2005-0 6 DATED 11.06.2010 IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 3.1. RESPECTFULLY FOLLOWING THE DECISION OF I.T.A.T AMRITSAR BENCH, IT IS HELD THAT DEDUCTION U/S 80IB OF THE I.T. ACT IS ALL OWABLE ON THE AMOUNT OF ENHANCEMENT OF INCOME IN VIEW OF THE DISALLOWANCE M ADE ON ACCOUNT OF 4 DELAYED PAYMENT IN RESPECT OF EPF. HENCE, THIS GROU ND OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I N ITA NO.139(ASR)/2012 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3RD JULY, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3RD JULY, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SMT. HARBHAJAN KAUR, KATHUA, 2. THE ITO KATHUA. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.