The Dy. Commissioner of Income-tax, Jammu V. M/s. Jai Durga Cements Pvt. Ltd, Samba

ITA 402/ASR/2012

• Counselvise Citation: 40220914 RSA 2012
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 02-11-2012
• 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. NOS.402 & 403 (ASR)/2012 ASSESSMENT YEAR:2008-09 & 2009-2010 PAN :AABCJ6112E DY. COMMR. OF INCOME-TAX, VS. M/S. JAI DURGA CEMENT PVT. LTD. CIRCLE-1, JAMMU. ` SAMBA (J&K). (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:NONE DATE OF HEARING: 04 /12/2012 DATE OF PRONOUNCEMENT:04/12/2012 ORDER PER BENCH ; THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF CIT(A), JAMMU, EACH DATED 31.08. 2012 FOR THE ASSESSMENT YEARS 2008-08 & 2009-2010. 2. THE REVENUE HAS RAISED COMMON GROUNDS IN BOTH T HE APPEALS, WHICH ARE REPRODUCED AS UNDER: ITA NOS.402 & 403(ASR)/2012 2 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT IF J&K, JAMMU WH ICH 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 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 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 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. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE MORE MORE GROUNDS OF APPEAL. 3. NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY RPAD FOR 02.11.2012. DESPITE THIS, NEITHER THE ASSESSEE NOR HIS AUTHORIZ ED REPRESENTATIVE APPEARED ON THE DATE OF HEARING. THE ASSESSEE HAS NOT EVEN F ILED ANY ADJOURNMENT ITA NOS.402 & 403(ASR)/2012 3 APPLICATION. KEEPING IN VIEW THE FACTS AND CIRCUMST ANCES, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED, IF THE NOTI CE IS ISSUED, TO THE ASSESSEE TIME AND AGAIN. THEREFORE, WE DISPOSING OF THE PRESENT APPEALS EX- PARTE, AFTER HEARING THE LEARNED DR. 3. AFTER HEARING THE LD. DR AND PERUSING THE RELEV ANT MATERIAL AVAILABLE WITH US, WE ARE OF THE VIEW THAT THE ISSUE INVOLV ED IN THE PRESENT GROUNDS OF APPEAL IS RELATING TO DEDUCTION UNDER SECTION 80IB ON EXCISE DUTY REFUND AND IT IS AN ADMITTED FACT THAT THE ISSUE IN DISPUT E 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 (2011) 333 ITR 335 (J&K) BY HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. 3.1. 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 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 ITA NOS.402 & 403(ASR)/2012 4 THE HONBLE JURISDICTIONAL HIGH COURT (SURPA), WE D ISMISS BOTH THE APPEALS OF THE REVENUE RELATING TO EXCISE DUTY REFUND. 4. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4TH DECEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7TH DECEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:JAI DURGA CEMENT PVT. LTD. SAMBA 2. THE DCIT, CIR.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.