Mata Chintpurni Charitable Trust, Amritsar. V. The Commissioner of Income-tax- II, Amritsar.

ITA 334/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63471 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R L CHHANALIA
• 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.343(ASR)/2011 ASSESSMENT YEAR:2008-09 PAN :AAJFA5228P THE INCOME TAX OFFICER, VS. M/S. AAR BEE INDUSTRIE S, WARD 1(1), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L. CHHANALIA, DR RESPONDENT BY:SH. R.K. GUPTA, I.T.A. NO.334(ASR)/2011 ASSESSMENT YEAR:2008-09 PAN :AAUPD5547K THE D.C.I.T. VS. SH. GIRISH ANIL DOGRA PROP. CIRCLE-1, M/S. ADISHAKTI ENTERPRISES, JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L. CHHANALIA, DR RESPONDENT BY:NONE DATE OF HEARING:25/07/2012 DATE OF PRONOUNCEMENT:27/07/2012 ORDER PER BENCH ; ITA NO.343 & 334 (ASR)/2011 2 THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECT ED AGAINST SEPARATE ORDERS OF CIT(A), JAMMU, EACH DATED 01.04.2011 & 04 .04.2011 FOR THE ASSESSMENT YEAR 2008-09. AS THE ISSUE INVOLVED IN B OTH THE APPEALS ARE COMMON, THESE WERE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GROUNDS RAISED IN BOTH THE APPEALS BY THE REVENUE ARE AS UNDER: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTIO N U/S 80IB ON CENTRAL EXCISE DUTY REFUND BY RELYING UPON ORDERS O F HON'BLE HIGH COURT IF J&K, JAMMU WHICH HAS BEEN DELIVERED NOT O N MERITS OF THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEI PT ONLY BECAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACK LING THE UNEMPLOYMENT IN THE STATE WHICH CANNOT BE SAID TO B E 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 ITA NO.343 & 334 (ASR)/2011 3 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. REGARDING DISALLOWANCE OF DEDUCTION U/S 40(A)(IA) O N ACCOUNT OF TDS DEFAULT. 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.87,263/- MADE IN RESPECT OF DISALLOWANCE OF DEDUCTION CLAIMED U/S 40(A)(IA) BY RELYING ON THE DECISION OF THE HONBLE ITAT, AMRITSAR BENCH IN THE CASE OF M/S. SUND PHARMACEUTICAL INDUSTRIES IN ITA NO.184(ASR)/2 009 AND NOT APPRECIATED THE DECISION OF SAME BENCH IN THE CASE OF M/S. KASHMIR TUBES REPORTED IN ITA NO.145(ASR)/2005 DATED 07.12. 2007 WHERE SUCH DISALLOWANCES WERE UPHELD BY THE ITAT, AMRITSA R. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIAL AVAILABLE WITH US. WE ARE OF THE VIEW THAT AS REGA RDS THE ISSUE INVOLVED IN GROUND NOS. 1 TO 4 RELATING TO DEDUCTION UNDER SEC TION 80IB ON EXCISE DUTY REFUND, IT IS AN ADMITTED FACT THAT THE ISSUE IN DI SPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE B Y THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMI R IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER, REPORTED IN (2011 ) 333 ITR 335 (J&K) BY HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATE D AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. 2.1. 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 ITA NO.343 & 334 (ASR)/2011 4 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 GROUND NOS. 1 TO 4 OF THE REVENUE RELATING TO EXCISE DUTY REFUND IN BOTH THE APPEALS. 3. AS REGARDS DISALLOWANCE MADE U/S 40(A)(IA) OF THE INCOME-TAX ACT, 1961, WE ARE OF THE VIEW THAT THE ISSUE IN DISPUT E IS SQUARELY COVERED BY THE DECISION OF THE ITAT, AMRITSAR BENCH IN THE CASE O F M/S. SUN PHARMACEUTICALS, IN ITA NO.184(ASR)/2009 FOR THE AS SESSMENT YEAR 2005-06 DATED 11.06.2010, IN FAVOUR OF THE ASSESSEE AND AGA INST THE REVENUE. 3.1 WE FIND THAT THE LD. FIRST APPELLATE AUT HORITY HAS PASSED A WELL REASONED ORDER BASED ON FACTS AND MATERIALS AVAILAB LE ON RECORD, WHICH REQUIRES NO INTERFERENCE AT OUR LEVEL. THE LD. FIRS T APPELLATE AUTHORITY WHILE ADJUDICATING THE ISSUE IN DISPUTE HAS ALSO FOLLOWED THE DECISION OF THE ITAT, AMRITSAR BENCH, IN THE CASE OF M/S. SUN PHARMACEUTI CALS ITA NO.184(ASR)2009 FOR THE ASSESSMENT YEAR 2005-06 DAT ED 11.06.2010. THUS, IN VIEW OF THE ABOVE DISCUSSIONS AND WELL REASONED FINDINGS GIVEN BY THE LD. CIT(A), WE DO NOT FIND ANY JUSTIFICATION TO INTERFE RE WITH THE SAME. ITA NO.343 & 334 (ASR)/2011 5 ACCORDINGLY, THE COMMON GROUND RAISED BY THE REVEN UE IN BOTH THE APPEALS IS ALSO DISMISSED. 4. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH JULY, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27TH JULY, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES: 1) M/A. AAR BEE INDUSTRIES, JAMMU (I I) SH. GIRISH ANIL DONGRE, JAMMU. 2. THE ITO WARD 1(1), /DCIT, CIR.1, 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, AMRITSAR BENCH: AMRITSAR.