The Dy. Commissioner of Income-tax, Jammu V. M/s. Kashmir Udyog, Jammu

ITA 252/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63409 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 7 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: 08-08-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GAURAV ARORA
• 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. 252(ASR)/2012 ASSESSMENT YEAR:2009-10 PAN :AADFK9880H DY. COMMR. OF INCOME TAX, VS. M/S. KASHMIR UDYOG, CIRCLE-1, JAMMU. JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY: SH. GAURAV ARORA, ADVOCATE 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 12.03.2012 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 ITA NO.252(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. 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 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 ITA NO.252(ASR)/2012 3 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 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 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. KASHMIR UDYOG, JAMMU. 2. THE DCIT CIR.1, JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER