The Income tax Officer, Pathankot V. M/s. Bharat Udyog Sicop Industrial Estate, Pathankot

ITA 271/ASR/2013

• Counselvise Citation: 27120914 RSA 2013
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Keywords: Question of law; 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. 271 & 272(ASR)/ 2013 ASSESSMENT YEARS: 2009-10 & 2010-11 PAN: AAHFB2895H INCOME TAX OFFICER, VS. M/S BHARAT UDYOG SIC OP, WARD-6(1), PATHANKOT INDUSTRIAL ESTATE, KATHUA( J&K) H.O. SHOP NO. 72, OPP. S HREE RAM MARKET, DALHOUSIE ROAD, PATHANKOT. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SH. AMRIK CHAND, DR ASSESSEE BY: NONE DATE OF HEARING: 12.08.2013 DATE OF PRONOUNCEMENT: 12.08.2013 ORDER PER BENCH THE REVENUE HAS FILED THE PRESENT TWO APPE ALS AGAINST SEPARATE ORDERS EACH DATED 19.02.2013 PASSED BY LEARNED CIT(A), AMR ITSAR, FOR THE ASSESSMENT YEARS 2009-10 & 2010-11 ON THE FOLLOWING GROUNDS: I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW WHETHER THE LD. CIT(A), AMRITSAR WAS RIGHT IN ALLOWING RELI EF ON ACCOUNT OF DEDUCTION U/S 80IB ON CENTRAL EXCISE DUT Y REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT OF J&K , JAMMU 2 I.T.A. NO. 271 & 272(ASR)/ 2013 ASSESSMENT YEAR: 2009-10 & 2010-11 WHICH HAS BEEN DELIVERED IN THE CASE OF SHREE BALAJ I ALLOYS VS. CIT AND ANOTHER (2011) 333 ITR 335 (J&K), NOT ON ME RITS OF THE ISSUE BUT HOLDING THE CAPITAL RECEIPT ONLY. II. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW WHETHER THE LD. CIT(A), AMRITSAR, WAS RIGHT IN NOT APPRECI ATING THE JUDGMENTS OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF PONNI SUGAR & SAWHNEY STEEL AND PRESS WORKS LTD, WH EREIN THE HON'BLE SUPREME COURT HAD HELD SUCH RECEIPTS IN ASMUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AFTER THE INDU STRIES HAD BEEN SET UP AND PAYMENTS WERE NOT MADE FOR PURPOSE OF SETTING UP OF BUSINESS. III. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW WHETHER THE LD. CIT(A), AMRITSAR WAS RIGHT IN CONSIDERING T HE DECISION IN THE CASE OF SEAHAM HARBOUR DOCK COMPANY WHICH LA YS DOWN TWO IMPORTANT TESTS FOR DETERMINING WHETHER RE CEIPTS IS A TRADING RECEIPT OR A CAPITAL RECEIPT. IV. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW WHETHER THE LD. CIT(A), AMRITSAR WAS RIGHT IN NOT C ONSIDERING THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN T HE CASE OF LIBERTY INDIA VS. COMMISSIONER OF INCOME TAX, (2209 ) 317 ITR 218(SC), WHEREIN IT HAD BEEN HELD THAT DUTY DRA WBACK RECEIPT/DEPB BENEFITS DO NOT FORM PART OF THE NET P ROFITS OF ELIGIBLE INDUSTRIAL UNDER TAKING FOR THE PURPOSE OF SECTIONS 80I/80-IA/80-IB OF THE 1961 ACT. V. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW WHETHER THE LD. CIT(A), AMRITSAR WAS RIGHT IN NOT CONSIDERING THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S NEXO INDUSTRIAL PVT. LTD. VS. CIT IN I. T.A. NO. 271 OF 2010 BY RELYING ON THE DECISION OF APEX COURT IN THE CASE BY OBSERVING THAT 4. IN VIEW OF JUDGMENT OF THIS COUR T IN LIBERTY INDIA(SUPRA), WHICH HAS BEEN FOLLOWED BY THE TRIBU NAL, NO SUBSTANTIAL QUESTION OF LAW CAN BE HELD TO BE ARISI NG. MOREOVER, IN PARA 4 OF THE IMPUGNED ORDER, IT WAS OBSERVED:- 3 I.T.A. NO. 271 & 272(ASR)/ 2013 ASSESSMENT YEAR: 2009-10 & 2010-11 4. THE NEXT GROUND I.E. GROUND NO. 3 RAISED BY THE REVENUE IS THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN ALL OWING THE ASSESSEE A DEDUCTION U/S 80IB ON THE EXCISE DUTY RE FUND. AT THE OUTSET, IT WAS CLAIMED BY THE LD. CIT DR THAT THE I MPUGNED ISSUE IS COVERED AGAINST THE ASSESSEE. THIS FACTUAL MATRIX WAS CONSENTED TO BE CORRECT BY THE LD. COUNSEL FOR THE ASSESSEE.. 5. IN VIEW OF ABOVE, THIS APPEAL IS DISMISSED. VI. APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OR MORE GROUNDS OF APPEAL. 2. AS THE ISSUES INVOLVED IN BOTH THE APPEALS ARE C OMMON IN NATURE, THEREFORE, WE PROCEED TO DECIDE THE APPEALS BY PASS ING A CONSOLIDATED ORDER. 3. WE HAVE HEARD THE LEARNED DR AND PERUSED MATERIA L AVAILABLE ON RECORD WITH US AND WE ARE OF THE VIEW THAT THE I SSUE INVOLVED IN GROUNDS OF THE APPEALS OF THE REVENUE RELATING TO DEDUCTION UN DER SECTION 80IB ON EXCISE DUTY REFUND IS SQUARELY COVERED BY THE JUDGM ENT OF HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, WHERE THE HONBLE HIGH COURT HAS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CA PITAL RECEIPT AND IS NOT LIABLE TO BE TAXED. THEREFORE, RESPECTFULLY FOLLOW ING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMI R IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (SUPRA), WE DISMIS S BOTH THE APPEALS FILED 4 I.T.A. NO. 271 & 272(ASR)/ 2013 ASSESSMENT YEAR: 2009-10 & 2010-11 BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS OF RE VENUES APPEALS ARE DISMISSED. 4. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH AUGUST, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S BHARAT UDYOG SICOP, INDUSTRIAL ES TATE, KATHUA(J&K), H.O. SHOP NO. 72, OPP. SHREE RAM MARKE T, DALHOUSIE ROAD, PATHANKOT 2. THE INCOME TAX OFFICER, WARD-6(1), PATHANKOT 3. THE CIT(A), AMRITSAR 4. THE CIT, AMRITSAR 5. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.