M/s. Kapsons Industries Limited, Jalandhar V. The Income-tax Officer, Jalandhar

ITA 264/ASR/2012

• Counselvise Citation: 26420914 RSA 2012
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 07-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K BANSAL
• Assessee Lawyers: R L CHHNALIA
• 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.264(ASR)/2011) ASSESSMENT YEAR:2005-06 PAN :AAHFR9381E INCOME TAX OFFICER, VS. M/S. KASHMIR UDYOG, WARD 1(2), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L. CHHNALIA, DR RESPONDENT BY:SH. S.K.BANSAL, ADVOCATE DATE OF HEARING:05/10/2012 DATE OF PRONOUNCEMENT:05/10/2012 ORDER PER BENCH ; THIS APPEAL FILED BY THE REVENUE IS AGAINST THE IM PUGNED ORDER OF THE CIT(A), JAMMU, DATED 08.04.2011 RELATING TO ASSESS MENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING PENALTY IMPOSED U/S 271(1)(C) ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80IB ON EXCISE DU TY REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT OF J& K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS OF THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BECAUSE TH E POLICY UNDER 2 WHICH THE SAME WAS PAID ENVISAGED TACKLING THE UNEM PLOYMENT 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 PRES S WORKS LTD, WHEREIN THE HON'BLE SUPREME COURT HAD HELD SUC H RECEIPTS TO BE THE REVENUE RECEIPTS IN AS MUCH AS IN THAT CA SE 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 HARB OUR DOCK COMPANY WHICH LAYS DOWN TWO IMPORTANT TESTS FOR DET ERMINING WHETHER RECEIPTS 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 D OWN BY THE JUDGMENTS OF THE HON'BLE SUPREME COURT. IN THE CAS E OF ASSESSEE, THE MONEY RECEIVED BY THE ASSESSEE ON ACC OUNT OF REFUND OF CENTRAL EXCISE WAS NOT SUPPOSED TO BE SPE NT IN A PARTICULAR MANNER FOR PURPOSE OF SUBSTANTIAL EXPANS ION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO RE PEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3 3. AT THE TIME OF HEARING, THE LD. DR, SH.R.L.CHHAN ALIA, RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE, SH. S.K. BANSAL, ADVOCATE, RELIED UPON THE ORDER PASSED BY THE LD. C IT(A). 5. AFTER HEARING BOTH THE PARTIES AND THOROUGHLY GO ING THROUGH THE MATERIAL AVAILABLE ON RECORDS INCLUDING THE IMPUGNE D ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE PENALTY IN DISPUTE ON THE BASIS OF ORDER PASSED BY THE JURISDICTIONAL HIGH COURT OF J & K IN THE CASE OF M/S. SHREE BALAJI ALLOYS AND OTHERS VS. CIT (2011) 333 I TR 335 (J&K) WHERE THE HONBLE HIGH COURT HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. TH E LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY HELD THAT SINCE THE QUANTUM ADDITION ST ANDS DELETED BY THE JURISDICTIONAL HIGH COURT OF J & K (SUPRA) IN ASSES SEES OWN CASE AND THERE REMAINS NO AMOUNT OF DISALLOWANCE U/S 80IB OF THE I .T.ACT, THEREFORE, THERE IS NO AMOUNT LEFT ON WHICH QUESTION OF IMPOSING OF PENALTY WHETHER TO BE IMPOSED OR NOT ARISES. ACCORDINGLY, HE DELETED THE PENALTY IN DISPUTE IMPOSED BY THE AO. THE LD. CIT(A) HAS PASSED A WELL REASONED ORDER, WHICH DOES NOT REQUIRE ANY INTERFERENCE. HENCE, WE UPHOLD THE IMPUGNED 4 ORDER OF THE FIRST APPELLATE AUTHORITY BY DISMISSIN G THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 5TH OCTOBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. KASHMIR UDYOG, JAMMU. 2. THE ITO WARD 1(2), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR.