The Dy. Commissioner of Income-tax, Srinagar V. M/s. Jammu & Kashmir Bank Ltd, Srinagar

ITA 43/ASR/2012

• Counselvise Citation: 4320914 RSA 2012
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-01-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: NOE
• Keywords: Tax effect; 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.42 & 44(ASR)/2012 ASSESSMENT YEAR:2003-04 PAN: DEPUTY COMMR. OF INCOME TAX, VS. M/S. CHINAR KASH MIR TEXTILE PVT. LTD. CIRCLE-3, SRINAGAR. SOURA, SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. AMRIK CHAND, DR RESPONDENT BY:NOE DATE OF HEARING :29/05/2012 DATE OF PRONOUNCEMENT:29/05/2012 ORDER PER BENCH: THESE TWO APPEALS FILED BY THE REVENUE ARE AGA INST THE IMPUGNED ORDER OF THE CIT(A), JAMMU, DATED 28.11.2011 FOR TH E ASSESSMENT YEAR 2003- 04, ON THE FOLLOWING GROUNDS: 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 ITA NOS. 42 & 44(ASR)/2012 2 MUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AFTER 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 OF CENTRAL EXCISE WAS NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. 5. EVEN THOUGH THE TAX EFFECT INVOLVED IN THIS CASE IS BELOW RS.3 LACS, THE APPEAL IS FILED IN VIEW OF THE DECISION O F THE HONBLE SUPREME COURT IN THE CASE OF CIT CENTRAL-III VS. SU RYA HERBAL LTD. VIDE CC NO.13694/2011 DATED 29.08.2011 IN WHICH THE HONBLE SUPREME COURT HAD HELD THAT THE CIRCULAR DATED 09.0 2.2011 SHOULD NOT BE APPLIED IPSO FACTO, PARTICULARLY, WHEN THE MATTE R HAS A CASCADING EFFECT. THERE ARE CASES UNDER THE INCOME TAX ACT, 1 961 IN WHICH COMMON PRINCIPLE MAY BE INVOLVED IN SUBSEQUENT GROU P OF MATTERS OR LARGE NUMBER OF MATTERS. 3. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE F OR 29.05.2012 BY RPAD WHICH WAS RECEIVED BACK UNSERVED WITH REMARKS RETURNED TO SENDERS. KEEPING IN VIEW THE GROUNDS RAISED BY THE REVENUE, WE FOUND THAT THE SAME DID NOT ARISE FROM THE IMPUGNED ORDER OF T HE CIT(A) DATED 28.11.2011. WE ARE OF THE VIEW THAT NO USEFUL PURPO SE WILL BE SERVED, IF THE NOTICE IS ISSUED AGAIN AND AGAIN TO THE ASSESSEE. T HEREFORE, WE ARE DISPOSING OF THE PRESENT APPEALS BY THIS ORDER. ITA NOS. 42 & 44(ASR)/2012 3 4. KEEPING IN VIEW THE ABOVE SAID GROUNDS RAISED BY THE REVENUE, WE FOUND THAT THE GROUNDS RAISED BY THE REVENUE DID NO T ARISE FROM THE IMPUGNED ORDER OF THE CIT(A). THE DEFECT MEMO TO T HIS EFFECT WAS ISSUED TO THE REVENUE BY THE REGISTRY TO RECTIFY THE SAME BUT THE REQUISITE DEFECTS HAVE NOT BEEN RECTIFIED TILL DATE. THEREFORE, KEEPI NG IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASES, AND THE GROUNDS RAISED BY THE REVENUE, WE FIND THAT THE GROUNDS RAISED BY THE REVENUE ARE DEFECTIVE AND DO NOT ARISE FROM THE IMPUGNED ORDER AND THEREFORE, THE PRESENT APPEALS ARE DISMISSED BEING DEFECTIVE WITH THE LIBERTY TO THE REVENUE TO RECTIFY THE DEFECTS AND IF SO ADVISED, CAN MOVE AN APPLICATION FOR RECALLING OF THE SAID ORDER IN ACCORDANCE WITH LAW. BOTH THE APPEALS OF THE REVENU E ARE DISMISSED. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH MAY, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29TH MAY, 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:M/S. CHINAR KASHMIR TEXTILES PVT. LTD. SRINAGAR. 2. THE DCIT, CIR.3, SRINGAR. 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