The Income Tax Officer, UDHAMPUR V. M/s. Kashmir Cement, UDHAMPUR

ITA 428/ASR/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4413 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-06-2013
• 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.428(ASR)/2013 ASSESSMENT YEAR:2009-10 PAN :AAHFK3694D INCOME TAX OFFICER, VS. M/S. KASHMIR CEMENT, DHAR ROAD, UDHAMPUR. BATTAL BALLIAN, UDHAMPUR. (APPELLANT) (RESPONDENT) I.T.A. NO.364(ASR)/2013 ASSESSMENT YEAR:2008-09 PAN :AANFM8821C INCOME TAX OFFICER, VS. M/S. MASTERJI METALS (INDI A), WARD-1(2), JAMMU. 37, INDUSTRIAL GROWTH CENTRE, PHASE-III, GANGYAL, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, DR RESPONDENT BY: NONE DATE OF HEARING:21/08/2013 DATE OF PRONOUNCEMENT:21/08/2013 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT TWO APPEALS AG AINST DIFFERENT IMPUGNED ORDERS OF THE CIT(A), JAMMU, DATED 11.04.2 013 & 22.03.2013 FOR THE ASSESSMENT YEARS 2009-10 & 2008-09 ON THE FOLLO WING COMMON GROUNDS IN BOTH THE APPEALS: ITA NOS.426 & 364(ASR)/2013 2 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTION U/ S 80IB ON CENTRAL EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BL E HIGH COURT IF J&K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS O F THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BE CAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACKLING TH E UNEMPLOYMENT 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 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 OR MO RE GROUNDS OF APPEAL 2. THE LD. DR, HAS FILED WRITTEN SUBMISSIONS IN BOT H THE CASES WHICH HAVE BEEN DULY CONSIDERED BY THE BENCH. NONE APPEAR ED ON BEHALF OF THE ASSESSEES. ITA NOS.426 & 364(ASR)/2013 3 3. WE HAVE HEARD THE LEARNED DR AND PERUSED MATERIA L AVAILABLE ON RECORD WITH US. WE HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS FILED BY THE LD. DR AND WE ARE OF THE VIEW THAT THE ISSUE INV OLVED IN GROUNDS OF THE APPEALS OF THE REVENUE RELATING TO DEDUCTION UNDER SECTION 80IB ON EXCISE DUTY REFUND IS SQUARELY COVERED BY THE JUDGMENT OF HON'BLE JURISDICTIONAL 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 BOTH THE APPEALS FI LED BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS OF REVENUES APPEALS A RE DISMISSED. 3. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21ST AUGUST, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES:I) M/S. KASHMIR CEMENT, UDHAMPUR (II) M/S. MASTERJI METALS (INDIA) JAMMU 2. THE ITO UDHAMPUR/ITO WARD 1(2), JAMMU 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR.