The Income-tax Officer, Kathua V. M/s. Nitin Enterprises, Kathua

ITA 145/ASR/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7726 (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: 2009-2010
• Appeal Filed On: 01-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

ITA NO.145(ASR)/2012 2 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. 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 DISALLOWANCE ON ACCOUNT OF INTEREST ON EX CISE DUTY, CHARITY AND DONATION & INTEREST ON TDS. 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTION U /S 80IB ON DISALLOWANCE OF RS.71,68, RS.5000/- AND RS.68/- ON ACCOUNT OF INTEREST ON EXCISE DUTY, CHARITY & DONATION & INTEREST ON TD S, MADE AS THE ASSESSEE HAS CONTRAVENED THE PROVISIONS OF INCOME T AX ACT, IN VIEW OF THE DECISION OF THE JURISDICTIONAL BENCH IN THE CASE OF KASHMIR TUBES REPORTED IN ITA 145(ASR)/2005 DATED 07.12.200 7 WHERE SUCH DISALLOWANCE WERE UPHELD BY THE HONBLE ITAT, AMRIT SAR BENCH. ITA NO.145(ASR)/2012 4 6. GROUND NO.4 RELATES TO NON ALLOWANCE OF DEDUCTI ON U/S 80IB OF THE I.T. ACT ON THE ITEMS ADDED BACK, BEING INADMI SSIBLE TO THE INCOME OF THE ASSESSEE. THESE AMOUNTS WERE RS.5,000/- AS C HARITY AND DONATION, RS.7168/- AS INTEREST ON EXCISE DUTY AND RS.68/- AS INTEREST ON TDS. THESE ITEMS OF EXPENSES WERE CLEARLY INADMI SSIBLE IN NATURE AND HENCE ADDED BACK BY ASSESSEE AND AS A RESULT TH E INCOME HAS SWELLED TO THAT EXTENT. THE ASSESSEE IS FOUND RIGHT IN CONTENDING THAT THESE AMOUNTS CANNOT BE KEPT OUT AND TAXED SEPARATE LY. IN VIEW OF THIS, THE ADDITIONS MADE IN RESPECT OF THESE ITEMS ARE DE LETED. 3.1. IN VIEW OF THE ABOVE DISCUSSIONS , WE CONCUR WITH THE FINDINGS OF THE LD. FIRST APPELLATE AUTHORITY, WHO HAS RIGHTLY DELE TED THE ADDITIONS. ACCORDINGLY, THIS GROUND OF THE REVENUE IS DISMISSE D. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I N ITA NO.145(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: M/S. NITIN ENTERPRISES, KATHUA 2. THE ITO KATHUA. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY