The Income-tax Officer, Kathua V. Smt. Harbhajan kaur, Kathua

ITA 377/ASR/2013

• Counselvise Citation: 37720914 RSA 2013
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• 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. 377 (ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAWPK6944R INCOME TAX OFFICER VS. SMT. HARBHAJAN KOUR, KATHUA PROP. M/S SAINCO ENGINEER S, 12/307, VILL. JAGATPUR, NEAR MAGAR KHADD, PO-HATLIMORH KATHUA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 13.08.2013 DATE OF PRONOUNCEMENT: 13.08.2013 ORDER PER BENCH THE REVENUE HAS FILED THE PRESENT APPEAL A GAINST THE IMPUGNED ORDER OF THE CIT(A), JAMMU, DATED 15.03.2013 FOR THE ASSE SSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT J&K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS OF THE ISSUE BUT HOLDING TH E RECEIPT TO BE A CAPITAL RECEIPT ONLY BECAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACKLING THE UNEMPLOYMENT IN THE STATE WH ICH CANNOT BE 2 I.T.A. NO. 377 (ASR)/2013 ASSESSMENT YEAR: 2009-10 SAID TO BE A GOOD TEST FOR DECIDING WHETHER A RECEI PT 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 INASMUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AF TER THE INDUSTRIES HAD BEEN SET UP AND PAYMENTS WERE NOT MADE FOR PURP OSE 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 & INTEREST SUBSIDY WA S NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. 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 APPEAL OF REVENUE RELATING TO DEDUCTION UNDER S ECTION 80IB ON EXCISE DUTY REFUND IS SQUARELY COVERED BY THE JUDGMENT OF HON'BLE JURISDICTIONAL 3 I.T.A. NO. 377 (ASR)/2013 ASSESSMENT YEAR: 2009-10 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 H AS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT A ND IS NOT LIABLE TO BE TAXED. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (SUPRA), WE DISMISS THE APPEAL FILED BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS OF REVENUES APPEAL AR E DISMISSED. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH AUGUST, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SMT. HARBHAJAN KOUR, PROP. M/S SAINCO ENGINEERS 12/307, VILL. JAGATPUR, NEAR MAGAR KHADD, PO-HATLIM ORH KATHUA 2. INCOME TAX OFFICER, KATHUA 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.