The Deputy Commissioner of Income Tax, Hoshiarpur V. Sh. Vijay Kumar Sharma (Deceased) through L/H, Hoshiarpur

ITA 446/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8782 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 29-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital receipt
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNA AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.SANJAY GARG, JUDICIAL MEMBER I.T.A. NOS.446 & 447(ASR)/2016 ASSESSMENT YEAR: 2011-12 & 2012-13 DY. CIT, HOSHIARPUR CIRCLE, HOSHIARPUR. VS. SH. VIJAY KUMAR SHARMA (DECEASED) THROUGH L/H VEENA SHARMA PROP. HARI NARAIN INDS.,55/12, KRISHNA NAGAR, HOSHIARPUR. PAN:ABRPS3528H (APPELLANT) (RESPONDENT) APPELLANT BY: SH. VEDPAL SINGH, DR. RESPONDENT BY: SH. J.S. BHASIN, ADV. DATE OF HEARING: 28/11/2016 DATE OF PRONOUNCEMENT: 07/02/2017 ORDER PER T.S. KAPOOR, AM: THESE ARE TWO APPEALS FILED BY REVENUE AGAINST THE ORDER OF LD. CIT(A), JALANDHAR, BOT DATED 10.06.2016 FOR ASST. Y EARS: 2011-12 & 2012-13 RESPECTIVELY. 2. THE COMMON ISSUE IS INVOLVED IN THESE APPEALS AN D THESE WERE HEARD TOGETHER, THEREFORE, FOR THE SAKE OF CONVENIE NCE A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. 3. THE GRIEVANCE OF THE REVENUE IN THESE APPEALS IS THE ACTION OF LD. CIT(A), BY WHICH HE HAS ALLOWED RELIEF TO THE ASSES SEE BY ALLOWING CLAIM OF ITA NOS.446 & 447/ASR/2016 ASST. YEARS. 2011-12 & 2012-13 2 ASSESSEE U/S 80IB OF THE ACT ON ACCOUNT OF REIMBURS EMENT OF EXCISE DUTY. 4. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE APP EALS ARE COVERED IN FAVOUR OF ASSESSEE BY THE ORDER OF HONBLE J&K HIGH COURT IN THE CASE OF SHRI BALAJI ALLOYS & ORS VS. CIT & ORS. (2011) 33 ITR 335 (J&K) AND HE SUBMITTED THAT FOR ASST. YEAR 2009-10, THE HONBLE TRIBUNAL IN ITA NO. 452(ASR)/2015 VIDE ORDER DATE 29.06.2016 HAD DECIDE D THE SIMILAR ISSUE IN FAVOUR OF ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE ORDER OF THE HONBLE HIGH HAS FURTHER BEING CONFIRMED BY HONBLE SUPREME COURT IN ITS ORDER DATED 19 TH APRIL, 2016. 5. THE LD. DR, ON THE OTHER HAND, HEAVILY PLACED HI S RELIANCE ON THE ORDER OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ISSUE I N DISPUTE RELATING TO EXCISE DUTY REFUND HAS ALREADY BEEN DECIDED BY HON BLE J&K HIGH COURT, IN THE CASE OF SHRI BALAJI ALLOYS & ORS. VS. CIT & ORS.(2011) 33 ITR 335 (J&K) IN FAVOUR OF THE ASSESSEE, HOLDING THAT THE E XCISE REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND IS NOT LIABLE TO TAX . 6.1. THE ABOVE ORDER OF HONBLE JAMMU AND KASHMIR H IGH HAS ALSO CONFIRMED BY HONBLE SUPREME COURT VIDE ITS ORDER D ATED 19 TH APRIL, 2016 REPORTED AT (2016) 138 DTR (SC) 36. ITA NOS.446 & 447/ASR/2016 ASST. YEARS. 2011-12 & 2012-13 3 6.2 THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF CIT VS. SHRI BALAJI ALLOYS & ORS., WE DISMISS THE APPEALS FILED BY REVENUE. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/201 7. SD/- SD/- (SANJAY GARG) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07/02/2017 /PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER