The Income-tax Officer, Jammu V. M/s. R.R. Prefab Industry, Jammu

ITA 241/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63421 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; 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. 241(ASR)/2012 ASSESSMENT YEAR:2007-08 PAN :AAIFR5851J INCOME-TAX OFFICER, VS. M/S. R.R. PREFAB INDUSTRY , WARD-1(2), JAMMU. BARI BRAHMANA, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY: NONE DATE OF HEARING: 06/08/2012 DATE OF PRONOUNCEMENT:06/08/2012 ORDER PER BENCH ; THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A), JAMMU, DATED 13.01.2010 FOR THE ASSESSME NT YEAR 2007-08 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(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 ITA NO.241(ASR)/2012 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. EVEN THOUGH THE TAX EFFECT INVOLVED IN THIS CASE IS BELOW RS. 3 LACS, THE APPEAL IS FILED IN VIEW OF THE DECI SION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT CENTRAL III VS. SU RYA HERBAL LTD. VIDE CC NO.13694/2011 DATED 29.08.2011 IN WHICH THE HONBLE SUPREME COURT HAD HELD THAT THE CIRCULAR DATED 09.0 3.2011 SHOULD NOT BE APPLIED IPSO FACTO, PARTICULARLY, WHEN THE MATTE R HAS A CASCADING EFFECT. THERE ARE CASES UNDER THE INCOME TAX ACT, 1 961 IN WHICH COMMON PRINCIPLE MAY BE INVOLVED IN SUBSEQUENT GROU P OF MATTERS OR LARGE NUMBER OF MATTERS. 3. NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY RPAD FOR 06.08.2012. DESPITE THIS, NEITHER THE ASSESSEE NOR HIS AUTHORIZ ED REPRESENTATIVE APPEARED ITA NO.241(ASR)/2012 3 ON THE DATE OF HEARING. THE ASSESSEE HAS NOT EVEN F ILED ANY ADJOURNMENT APPLICATION. KEEPING IN VIEW THE FACTS AND CIRCUMST ANCES, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED IF THE NOTIC E IS ISSUED TO THE ASSESSEE AGAIN AND AGAIN. THEREFORE, WE DISPOSING OF THE PRE SENT APPEAL EX-PARTE AFTER HEARING THE LEARNED DR. 3. AFTER HEARING THE LD. DR AND PERUSING THE RELE VANT MATERIAL AVAILABLE WITH US, WE ARE OF THE VIEW THAT THE IS SUE INVOLVED IN THE PRESENT GROUNDS OF APPEAL IS RELATING TO DEDUCTION UNDER S ECTION 80IB ON EXCISE DUTY REFUND AND IT IS AN ADMITTED FACT THAT THE ISS UE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSES SEE BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KA SHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 I TR 335 (J&K) BY HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATE D 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 ITA NO.241(ASR)/2012 4 THE HONBLE JURISDICTIONAL HIGH COURT (SURPA), WE D ISMISS THE APPEAL OF THE REVENUE RELATING TO EXCISE DUTY REFUND. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH AUGUST, 2012. SD/- SD/-S (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:6TH AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. R.R. PREFAB INDUSTRY, JAMMU. 2. THE WARD-1(2), JAMMU. 3. THE CIT(A), JAMMU 4. THE CIT , JAMMU 5. THE SR DR, ITAT, AMRITSAR.