Shree Balaji Alloys, Jammu V. The Income tax Officer, Kathua

ITA 163/ASR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5717 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 22-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR. BEFORE SHRI H.L. KARWA, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER. I.T.A. NO.163(ASR)/2010. (ASSESSMENT YEAR: 2006-07) M/S.SHREE BALAJI ALLOYS, THE INCOME TAX OFFICER, 36-B, INDUSTRIAL EXTN. AREA, KATHUA (J&K). KATHUA (J&K). (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SH. P.N. ARORA, ADV. RESPONDENT BY: SHRI TARSEM LAL, D.R. ORDER PER H.L. KARWA, VICE PRESIDENT. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE CIT(A), JAMMU DATED 18-12-2009, RELATING TO THE ASS ESSMENT YEAR 2006-07. 2. GROUND NOS.1 AND 2 OF THE APPEAL ARE GENERAL IN NATURE AND HENCE NO COMMENTS ARE BEING GIVEN. 3. GROUND NOS.5,6,7,8,12, 14 AND 15 WERE NOT PRESSE D BEFORE US AND ACCORDINGLY, WE DISMISS THE SAME AS NOT PRESSED. 4. GROUND NOS.3 AND 4 OF THE APPEAL READ AS UNDER:- 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW REFUND OF EXCISE DUTY AMOUNTING TO RS.8,16,87,809/- IS A CAPITAL RECEIPT NOT LIABLE TO TAX UNDER THE PROVI SIONS OF THE INCOME TAX ACT, 1961 (THE ACT). 2 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW INTEREST SUBSIDY AMOUNTING TO RS.8,05,993/- IS A C APITAL RECEIPT NOT LIABLE TO TAX UNDER THE PROVISIONS OF THE ACT. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN MANUFACTURING OF ALUMIN IUM INGOTS AT ITS INDUSTRIAL UNIT LOCATED AT 36B, INDUSTRIAL EXTENSIO N AREA, KATHUA (J&K). DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE R ECEIVED REFUND OF EXCISE DUTY AMOUNTING TO RS.8,16,87,809/-. THE ASSESSEE A LSO RECEIVED INTEREST SUBSIDY AMOUNTING TO RS.8,05,993/-. ON THE ABOVE A MOUNTS, THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80-IB OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THE A.O. DID NOT ALLOW THE DEDU CTION AND TAXED THE ABOVE TWO AMOUNTS TREATING THE SAME AS REVENUE RECEIPT. 5. ON APPEAL, THE CIT(A) FOLLOWING THE ORDER OF THE AMRITSAR BENCH OF THE TRIBUNAL PASSED IN THE CASE OF M/S.SHREE BALAJI ALLOYS, KAHUA DATED 26-11-2009 DISMISSED THE APPEAL OF THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT M/S. SHREE BALAJI ALLOYS, KATHUA CHALLENGED THE ORDER OF THE TRIBUNAL BEFORE THE HON BLE JURISDICTIONAL J & K HIGH COURT. THE ISSUE BEFORE THE HONBLE JURISDIC TIONAL HIGH COURT WAS AS UNDER:- WHETHER THE AMOUNT OF EXCISE REFUND AND INTERES T SUBSIDY RECEIVED BY THE APPELLANTS-ASSESSES, IN PURSUANCE OF THE IN CENTIVES ANNOUNCED AND SANCTIONED VIDE GOVERNMENT OF INDIA, MINISTRY O F COMMERCE AND INDUSTRY (DEPARTMENT OF INDUSTRIAL POLICY AND PROMO TION)S OFFICE MEMORANDUM NO.1(13)2000-NER DATED JUNE 4, 2002 AND CENTRAL EXCISE NOTIFICATION NOS.56 AND 57, DATED NOVEMBER 1 4,2002 AND OTHER NOTIFICATIONS ISSUED ON THE SUBJECT, PERTAINI NG TO THE INDUSTRIAL POLICY INTRODUCED IN THE STATE OF JAMMU & KASHMIR, IS A CAPITAL RECEIPT AND, THUS, NOT LIABLE TO TAX UNDER THE PROV ISIONS OF THE ACT, OR REVENUE RECEIPT, AS OPINED BY THE AUTHORITIES UNDER THE ACT? 3 7. THE HONBLE HIGH COURT VIDE JUDGMENT DATED 31-1- 2011 IN THE CASE OF M/S.SHREE BALAJI ALLOYS, KATHUA, REPORTED IN (2011) 333 ITR 335 (J&K) DECIDED THE ISSUE, OBSERVING AS UNDER:- IN THIS VIEW OF THE MATTER, THE INCENTIVES PROV IDED TO THE INDUSTRIAL UNITS, IN TERMS OF THE NEW INDUSTRIAL PO LICY, FOR ACCELERATED INDUSTRIAL DEVELOPMENT IN THE STATE, FO R CREATION OF SUCH INDUSTRIAL ATMOSPHERE AND ENVIRONMENT, WHICH W OULD PROVIDE ADDITIONAL PERMANENT SOURCE OF EMPLOYMENT T O THE UNEMPLOYED IN THE STATE OF JAMMU AND KASHMIR, WERE IN FACT, IN THE NATURE OF CREATION OF NEW ASSETS OF INDUSTRI AL ATMOSPHERE AND ENVIRONMENT, HAVING THE POTENTIAL OF EMPLOYMENT GENERATION TO ACHIEVE A SOCIAL OBJECT. SUCH INCENT IVES, DESIGNED TO ACHIEVE PUBLIC PURPOSE, CANNOT, BY ANY STRETCH O F REASONING, BE CONSTRUED AS PRODUCTION OR OPERATIONAL INCENTIVE S FOR THE BENEFIT OF ASSESSEES ALONE. THUS, LOOKING TO THE PURPOSE, OF ERADICATION OF THE SOCIAL PROBLEM OF UNEMPLOYMENT IN THE STATE BY ACCELERATIO N OF THE INDUSTRIAL DEVELOPMENT AND REMOVING BACKWARDNESS OF THE AREA THAT LAGGED BEHIND IN INDUSTRIAL DEVELOPMENT, WHICH IS CERTAINLY A PURPOSE IN THE PUBLIC INTEREST, THE INCENTIVES PR OVIDED BY THE OFFICE MEMORANDUM AND STATUTORY NOTIFICATIONS ISSUE D IN THIS PRODUCTION AND TRADE INCENTIVES, AS HELD BY THE TRI BUNAL. MAKING OF ADDITIONAL PROVISION IN THE SCHEME THAT INCENTIVES WOULD BECOME AVAILABLE TO THE INDUSTRIAL UNITS, ENTITLED THERETO, FROM THE DATE OF COMMENCEMENT OF THE COMMERCIAL PRODUCTION, AND THAT THESE WERE NOT REQU IRED FOR CREATION OF NEW ASSETS CANNOT BE VIEWED IN ISOLATIO N, TO TREAT THE INCENTIVES AS PRODUCTION INCENTIVES, AS HELD BY THE TRIBUNAL, FOR THE MEASURE SO TAKEN, APPEARS TO HAVE BEEN INTENDED TO ENSURE THAT THE INCENTIVES WERE MADE AVAILABLE ONLY TO THE BONA FIDE INDUSTRIAL UNITS SO THAT LARGER PUBLIC INTEREST OF DEALING WITH UNEMPLOYMENT IN THE STATE, AS INTENDED, IN TERMS OF THE OFFICE MEMORANDUM, WAS ACHIEVED. 4 THE OTHER FACTORS, WHICH HAD WEIGHED WITH THE TRIBU NAL IN DETERMINING THE INCENTIVES AS PRODUCTION INCENTI VES MAY NOT BE DECISIVE TO DETERMINE THE CHARACTER OF THE INCEN TIVE SUBSIDIES, WHEN IT IS FOUND, AS DEMONSTRATE IN THE OFFICE MEMORANDUM, AMENDMENT INTRODUCED THERETO AND THE ST ATUTORY NOTIFICATION TOO THAT THE INCENTIVES WERE PROVIDED WITH THE OBJECT OF CREATING AVENUES FOR PERPETUAL EMPLOYMENT , TO ERADICATE THE SOCIAL PROBLEM OF UNEMPLOYMENT IN THE STATE BY ACCELERATED INDUSTRIAL DEVELOPMENT. FOR ALL WHAT HA BEEN SAID ABOVE, THE FINDING OF THE TRIBUNAL ON THE FIRST ISSUE THAT THE EXCISE DUTY RE FUND, INTEREST SUBSIDY AND INSURANCE SUBSIDY WERE PRODUCTION INCEN TIVES, HENCE REVENUE RECEIPT, CANNOT BE SUSTAINED, BEING A GAINST THE LAW LAID DOWN BY THE HONBLE SUPREME COURT OF INDIA IN SAHNEY STEEL CASE [1997] 228 ITR 253 AND PONNI SUGARS CASE [2008] 306 ITR 391. THE FINDING OF THE TRIBUNAL THAT THE INCENTIVES WER E REVENUE RECEIPT IS, ACCORDINGLY, SET-ASIDE HOLDING THE INCENTIVES TO BE CAPITAL RECEIPTS IN THE HANDS OF THE ASSESSE E. IN VIEW OF OUR ABOVE FINDING ON THE FIRST ISSUE, TH ERE IS NO NEED TO OPINE ON THE SECOND ISSUE, WHICH WAS RAISED IN THE ALTERNATIVE. 8. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONB LE JURISDICTIONAL J & K HIGH COURT IN THE CASE OF M/S.SHREE BALAJI ALLOYS (SUPRA), WE HOLD THAT THE AMOUNT OF EXCISE DUTY REFUND AND ALSO INTEREST SUBSIDY ARE CAPITAL RECEIPTS AND THUS, NOT LIABLE TO TAX UNDER THE PROV ISIONS OF THE INCOME TAX ACT, 1961. THUS, GROUND NOS.3 AND 4 STAND ALLOWED. 9. GROUND NOS.10 AND 11 OF THE APPEAL READ AS UNDER :- 10. THAT ON THE FACTS AND IN LAW THE LD. CIT(A) ER RED IN UPHOLDING THAT THE EXCISE DUTY REFUND OF RS.8,16,87,809/-RECE IVED BY THE ASSESSEE WAS NOT DERIVED FROM THE INDUSTRIAL UNDERT AKING AND THUS WAS NOT ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 80IB 5 OF THE INCOME TAX ACT, 1961. IT IS PRAYED THAT THE DEDUCTION U/S.80IB MAY BE ALLOWED AT RS.10,10,32,755/- AS CLA IMED. 11. THAT ON THE FACTS AND IN LAW THE LD. CIT(A) ERR ED IN UPHOLDING THAT THE INTEREST SUBSIDY OF RS.8,05,993/- RECEIVED BY THE ASSESSEE WAS NOT DERIVED FROM THE INDUSTRIAL UNDERT AKING AND THUS WAS NOT ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 80IB OF THE INCOME TAX ACT, 1961. IT IS PRAYED THAT THE DEDUCTION U/S.80IB MAY BE ALLOWED AT RS.10,10,32,755/- AS CLA IMED. 10. SINCE WE HAVE ALLOWED GROUND NOS.3 AND 4 OF THE APPEAL, THEREFORE, WE DO NOT THINK IT NECESSARY TO ADJUDICATE GROUND N OS.10 AND 11 OF THE APPEAL. THEREFORE, NO FINDINGS ARE BEING GIVEN. 11. GROUND NO.13 OF THE APPEAL RELATES TO THE CHARG ING OF INTEREST U/S.234B OF THE ACT. AT THE TIME OF HEARING, SHRI P.N. ARORA, THE LEARNED COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THIS GROUN D OF APPEAL IS CONSEQUENTIAL IN NATURE AND WE HOLD ACCORDINGLY. 11. IN THE ABOVE TERMS, THE APPEAL IS ALLOWED PARTL Y AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST JUNE, 20 11. SD/- SD/- (MEHAR SINGH) (H.L. KARWA) ACCOUNTANT MEMBER. VICE PRESIDENT. DATED: 21 ST JUNE, 2011. KC/- COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: M/S.SHREE BALAJI ALLOYS, KATHUA. (2) THE ITO, KATHUA.(3)THE CIT, JAMMU.(4)THE CIT(A), JA MMU. (5) THE SR.D.R., ITAT, ASR. TRUE COPY BY ORDER ASSTT. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, AMRITSAR. 6