The Income-tax Officer, Jammu V. M/s JSB Aluminium, Phase-1 lane No 7, Samba

ITA 29/ASR/2015

• Counselvise Citation: 2920914 RSA 2015
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Keywords: Capital receipt
• Section: 143(3); 80IB

Judgement Text

I.T.A. NO. 29 /ASR/201 5 ASSESSMENT YEAR: 2011 - 12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR [CORAM: PRAMOD KUMAR AM AND A.D. JAIN JM] I.T.A. NO. 29 /ASR/201 5 ASSESSMENT YEAR: 2011 - 12 INCOME TAX OFFICER WARD 1(3), JAMMU ..APPELLANT VS. J S B ALUMINIUM RESP ONDENT PHASE - 1, LANE NO 7, SIDCO , IGC, SAMBA, J&K . [ PAN: AAFFJ 4424 J ] APPEARANCES BY: TARSEM LAL FOR THE APPELLANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: JUNE 8 , 2015 DATE OF PRONOUNCING THE ORDER : AUGUST 31 , 2015 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 30 TH OCTOBER 2014 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE A CT) , FOR T HE ASSESSMENT YEAR 2011 - 12, ON THE FOLLOWING GROUNDS: 1 . THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND HELD AGAINST THE FACTS OF THE CASE THAT THE EXCISE DUTY REFUND OF RS.2,21,08,414/ - RECEIVED IN ACCORDANCE WITH THE CENTRAL EXCISE NOTIFICATION NO.56/2 002 DATED 14.11.2002 ANNEXURE C(II) READ WITH ANNEXURE C(I), C(I I I ) AND C(IV) IS NOT A CAPITAL RECEIPT NOT LIABLE TO TAX UNDER THE PROVISIONS OF THE INCOME TAX ACT, 1961 (THE ACT) AND INSTEAD IS AN INCOME NOT DIRECTLY DERIVED FROM AN INDUSTRIAL ACTIVITY. I.T.A. NO. 29 /ASR/201 5 ASSESSMENT YEAR: 2011 - 12 PAGE 2 OF 3 2. THE LD. ASSESSING OFFICER HAS ERRED IN L A W AND HELD AGAINST THE FACTS OF THE CASE THAT THE EXCISE DUTY REFUND RECEIVED IN ACCORDANCE WITH THE CENTRAL EXCISE NOTIFICATION NO.56/2002 DATED 14.11.2002 IS AGAINST THE OWN PAYMENT OF CENTRAL EXCISE AND HOLDI NG THAT EXCISE DUTY PAID IS DEBITED TO THE MANUFACTURING/ TRADING ACCOUNT WITHOUT A PPRECIATING THAT EXCISE DUTY PAID AND REFUNDED BY THE CENTRAL EXCISE DEPARTMENT IS DEBITED AND CREDITED TO THE EXCISE DUTY RECEIV ABLE ACCOUNT BUT INSTEAD A N INCOME NOT DIRECT LY DERIVED FROM AN INDUSTRIAL ACTIVITY . 3 . THE LD. ASSESSING OFFIC E R HAS ERRED IN LAW AND HELD AGAINST THE FACTS OF THE CASE THAT THE EXCISE DUTY REFUND RECEIVED IN ACCORDANCE WITH THE CENTRAL EXCISE NOTIFICATION NO.56/2002 DATED 14.11.2002 ANNEXURE C(II) R/W ANNEXURE C(III) AND C(IV) IS NOT DIRECTLY DERIVED FROM AN INDUSTRIAL ACTIVITY AND HENCE NOT ELIGIBLE FOR DEDUCTION U/S 80IB OF THE INCOME TAX ACT 1961. 4 . THE LD ASSESSING OFFICER HA S ERRED IN LAW AND HELD AGAINST THE FACTS OF THE CASE THAT THE INTE REST SUBSIDY OF RS.11,11,778/ - RECEIVE IN ACCORDANCE WITH THE INDUSTRIAL POLICY IS NOT A CAPITAL RECEIPT NOT LIABLE TO TAX UNDER THE PROVISIONS OF THE INCOME TAX ACT, 1961 (THE ACT ) AND INSTEAD IS A N INCOME N OT DIRECTLY DERIVED FROM AN INDUSTRIAL ACTIVIT Y . 5 . THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND HELD AGAINST THE FACTS OF THE CASE THAT THE INTEREST S UBSIDY RECEIVED IN ACCORDANCE WITH THE INDUSTRIAL POLICY IS NOT U/S 80IB OF THE INCOME TAX ACT 1961. 6 . THE LD. RESPONDENT A SSESSING OFFICER FAILED TO CONSIDER, APPRECIATE AND GIVE ANY FINDING IN HIS IMPUGNED ORDER ON THE POINTS RAISED BY THE APPELLANT IN REPLY TO THE SHOW CAUSE NOTICE. 2. NONE APPEARED FOR THE ASSESSE BUT WE HAVE HEARD THE LEARNED REPRESENTATIVES, PERUSED THE MATERIAL ON RECORD A ND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 3. LEARNED D EPARTMENTAL REPRESENTATIVE FAIRLY AGREE S THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSE E BY HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE C ASE OF SHRI BALAJI ALLOYS & ORS VS CIT [(2011) 333 ITR 335 (J&K)], EVEN AS HE RELIE S UPON THE STAND OF THE ASSESSING OFFICER. 4. RESPECTFULLY FOLLOWING THE ESTEEMED VIEWS OF HONBLE JURISDICTIONAL HIGH COURT, WE CONFIRM THE ORDER OF THE LD. CIT(A) ON THI S ISSUE AND DECLINE TO INTERFERE IN THE MATTER. I.T.A. NO. 29 /ASR/201 5 ASSESSMENT YEAR: 2011 - 12 PAGE 3 OF 3 5 . IN THE RESULT, APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF AUGUST, 2015. SD/XX SD/XX A D JAIN PRAMOD KUMAR ( JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 31 ST DAY OF AUGUST 2015 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR