The Dy. Commissioner of Income-tax, Jammu V. Sh Rakesh Sharma, Jammu

ITA 337/ASR/2011

• Counselvise Citation: 33720914 RSA 2011
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 02-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K BANSAL
• 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.337(ASR)/2011 ASSESSMENT YEAR:2006-07 PAN :AKBPS6452P DY.COMMR. OF INCOME-TAX, VS. SH.RAKESH SHARMA PROP. CIRCLE-1, JAMMU. M/S. PAYAL ENTERPRISES, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. S.K. BANSAL, ADV. DATE OF HEARING:02/11/2012 DATE OF PRONOUNCEMENT:02/11/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF CIT(A), JAMMU, DATED 06.04.2011 & FOR THE ASSESS MENT YEAR 2006-07 ON THE FOLLOWING GROUNDS. 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(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 ITA NO.337(ASR))/2011 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. 3. 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. ITA NO.337(ASR))/2011 3 4. AT THE TIME OF HEARING, THE LD. DR, SH.TARSEM LA L, RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 4. SH. S.K. BANSAL, THE LD. COUNSEL FOR THE ASSESS EE PLACED RELIANCE ON THE ORDER OF THE LD. CIT(A). 5. AFTER HEARING BOTH THE PARTIES AND THOROUGHLY GO ING THROUGH THE MATERIAL AVAILABLE ON RECORDS, INCLUDING THE IMPUGN ED 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 ONCE THE QUANTUM ADDITION ST ANDS DELETED IN ITS ENTIRETY, BY THE JURISDICTIONAL HIGH COURT OF J & K (SUPRA) IN ASSESSEES OWN CASE, NO PENALTY IS LEVIABLE AND HENCE, THE PENALTY LEVIED U /S 271(1)(C) OF THE I.T.ACT, 1961 BY THE A.O. IS DELETED. THE LD. CIT(A) HAS PA SSED A WELL REASONED ORDER, WHICH DOES NOT REQUIRE ANY INTERFERENCE. HEN CE, WE UPHOLD THE ITA NO.337(ASR))/2011 4 IMPUGNED ORDER OF THE FIRST APPELLATE AUTHORITY BY DISMISSING 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 2ND NOVEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2ND NOVEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. RAKESH KUMAR SHARMA PROP. M/S. PAY AL ENTERPRISES, JAMMU. 2. THE DCIT- CIRCLE-1, JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.