The Income-tax Officer, Jammu V. M/s. Revenbhel Health Care P.Ltd, Jammu

ITA 269/ASR/2011

• Counselvise Citation: 26920914 RSA 2011
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-03-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 18-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Keywords: Capital receipt
• Section: 271(1)(c); 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.269(ASR)/2012) ASSESSMENT YEAR:2005-06 PAN :AACCR5365E THE INCOME TAX OFFICER VS. M/S. RAVENBHEL HEALTH CARE PVT. LTD. WARD 1(2), JAMMU. GANDHI NAGAR, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.R.L.CHHANALIA, DR RESPONDENT BY:NONE DATE OF HEARING:05/10/2012 DATE OF PRONOUNCEMENT:05/10/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E IMPUGNED ORDER PASSED BY THE CIT(A), JAMMU, DATED 08.03.2011 ON THE FOLLO WING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING PENALTY IMPOSED U/S 271(1)(C) O N ACCOUNT OF DEDUCTION U/S 80IB ON EXCISE DUTY REFUND BY RELYIN G UPON ORDERS OF HON'BLE HIGH COURT OF J&K, JAMMU WHICH HAS BEEN DE LIVERED NOT ON MERITS OF THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BECAUSE THE POLICY UNDER WHICH THE SAME WAS PAID EN VISAGED TACKLING THE UNEMPLOYMENT 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 2 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 & I NTEREST SUBSIDY WAS NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBSTANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING, THE LD. DR RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND ON THE CONTRARY INSPITE OF NOTICE ISSUED, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR FILED ANY AP PLICATION FOR ADJOURNMENT OF THE CASE. KEEPING IN VIEW THE FACTS AND CIRCUMS TANCES OF THE PRESENT CASE AS WELL AS THE ISSUE IN DISPUTE, WHICH IS COVERED I N FAVOUR OF THE ASSESSEE, WE ARE DECIDING THE PRESENT APPEAL EX-PARTE, AFTER HEA RING THE LD. DR. 3. WE HAVE HEARD THE LD. DR AND PERUSED MATERIAL A VAILABLE ON RECORD, ESPECIALLY THE ORDER PASSED BY THE LD. FIRST APPELL ATE AUTHORITY. WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUT HORITY HAS RIGHTLY DELETED THE 3 PENALTY IN DISPUTE ON THE BASIS OF THE DECISION OF THE JURISDICTIONAL HIGH COURT OF J & K IN THE CASE OF M/S. SHREE BALAJI AL LOYS AND OTHERS VS. CIT (2011) 333 ITR 335 (J&K) WHERE THE HONBLE HIGH COU RT HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL REC EIPT AND NOT LIABLE TO BE TAXED. THE LD. FIRST APPELLATE AUTHORITY HAS RIG HTLY HELD THAT SINCE THE BASIC ADDITION ON QUANTUM STANDS DELETED BY THE JURISDI CTIONAL HIGH COURT OF J & K (SUPRA) IN THE CASE OF THE ASSESSEE, PENALTY UND ER SECTION 271(1)(C) CEASES TO SURVIVE AND ACCORDINGLY PENALTY IMPOSED BY TH E AO IS DELETED. HENCE, WE UPHOLD THE IMPUGNED ORDER OF THE FIRST APPELLATE AUTHORITY BY DISMISSING THE APPEAL FILED BY THE REVENUE. 5. 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. RAVENBHEL HEALTH CARE PVT. LT. JA MMU. 2. THE ITO WARD-1(2), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL,