The Income-tax Officer, Jammu V. M/s. Alpha Menthol, Jammu

ITA 238/ASR/2012

• Counselvise Citation: 23820914 RSA 2012
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GAURAV ARORA
• Keywords: Additional evidence; 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. 238(ASR)/2012 ASSESSMENT YEAR:2009-10 PAN :AALFA8284H INCOME TAX OFFICER, VS. M/S. ALPHA MENTHOL, WARD 1(1), JAMMU. GANGYAL, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY: SH.GAURAV ARORA, ADV DATE OF HEARING: 08 /08/2012 DATE OF PRONOUNCEMENT:08/08/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF THE CIT(A), JAMMU, DATED 23.01.2012 FOR THE ASSE SSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS: 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 CENTRAL EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BL E HIGH COURT IF J&K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS O F THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BE CAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACKLING TH E UNEMPLOYMENT 2 IN THE STATE WHICH CANNOT BE SAID TO BE 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. 5. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHEN THE ASSESSEE DESPIT E SEVERAL OPPORTUNITIES AFFORDED TO IT, HAS FAILED TO FURNISH THE ADDRESS, FILING OF RETURN OF INCOME, PAN, CHEQUE NO. & DATE & COPY OF BANK ACCOUNT OF THE PERSON M/S. ANNU DEEP TOWER (P) LTD. WHO HAS GIVEN LOAN TO THE ASSESSEE. 2. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, BOTH THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR FOR THE REVENUE CON CEDED THAT THE ISSUE INVOLVED IN GROUND NOS 1 TO 4 IS SQUARELY COVERED BY THE DECISION OF THE 3 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). 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT MATERIAL AVAILABLE WITH US, WE ARE OF THE VIEW THAT THE IS SUE INVOLVED IN GROUNDS NO.1 TO 4 OF THE APPEAL IS RELATING TO DEDUCTION U NDER SECTION 80IB ON EXCISE DUTY REFUND AND IT IS AN ADMITTED FACT THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF T HE ASSESSEE BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT O F JAMMU & KASHMIR 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. 3.1. 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 APPEAL OF THE REVENUE RELATING TO EXCISE D UTY REFUND. 4. IN GROUND NO.5, THE REVENUE CONTENDED THAT THE L D. CIT(A) WAS NOT RIGHT IN ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. 4 5. AFTER HEARING BOTH THE PARTIES AND GOING THROUGH THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE VI EW THAT THE LD. FIRST APPELLATE AUTHORITY HAS SENT THE ADDITIONAL EVIDENCE FILED B Y THE ASSESSEE TO THE AO FOR HIS COMMENTS AND AS PER REMAND REPORT OF THE AO, HE STATED THAT THE ASSESSEE HAS NOT FILED THESE DOCUMENTARY EVIDENCES BEFORE HI M INSPITE OF ENOUGH OPPORTUNITIES WERE AFFORDED TO THE ASSESSEE. THE AO ON MERITS, OPINED THAT THE TRANSACTION APPEARED TO BE GENUINE TO HIM AS TH E TRANSFER OF MONEY WAS THROUGH RTGS TRANSFER MADE THROUGH BANKING CHANNELS . WE ARE OF THE CONSIDERED VIEW THAT THE LD. FIRST APPELLATE AUTHOR ITY HAS RIGHTLY ADMITTED THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, WHICH WA S VERY MUCH ESSENTIAL TO DECIDE THE ISSUE IN DISPUTE. ACCORDINGLY, THIS GROU ND OF APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH AUGUST, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. ALPHA MENTHOL, GANGYAL, JAMMU. 2. THE ITO WARD 1(2), JAMMU. 3. THE CIT(A) 4.THE CIT. 5.THE SR DR, ITAT, AMRITSAR