The Income Tax Officer, Hoshiarpur V. Sh. Vijay Kumar Sharma, Hoshiarpur

ITA 452/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0614 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 21-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Assessee Lawyers: J S BHASIN
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.452(ASR)/2015 ASSESSMENT YEAR:2009-10 PAN: ABRPS3528H INCOME TAX OFFICER, VS. SH. VIJAY KUMAR SHARMA (D ECD.) WARD-3, HOSHIARPUR. THROUGH L/H MRS. VEENA SHARMA, PROP. HARI NARAIN INDUSTRIES, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. BHAWANI SHANKER, DR RESPONDENT BY: SH. J.S. BHASIN, ADV. DATE OF HEARING: 27/06/2016 DATE OF PRONOUNCEMENT: 29/06/2016 ORDER PER A.D. JAIN, JM; THIS IS THE REVENUES APPEAL FOR THE ASSESSMENT YE AR 2009-11, AGAINST THE ORDER DATECD 01.06.2015, PASSED BY THE LD. CIT (A), JALANDHAR. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.61,22,225/- MADE BY THE AO BY DISALLOWING DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT WHILE DISALLOW ING CLAIM OF THE ASSESSEE U/S 80IB, THE AO RIGHTLY OBSERVED THAT TH E AMOUNT 2 ITA NO.452(ASR)/2015 AY 2009-10 RECEIVED ON THE REIMBURSEMENT OF EXCISE DUTY REFUND WAS NOT DERIVED FROM THE ELIGIBLE BUSINESS OF INDUSTRIAL UN DERTAKING. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ISSUE OF EXCISE DUTY REFUND STANDS ALREADY ADJUDICATED BY THE HONBLE JURISDICTIONAL J & K HIGH COURT, IN THE CASE OF SHRI BALAJI ALLOY S & ORS. VS. COMMISSIONER OF INCOME TAX & ORS., (2011) 33 ITR 335 ( J & K) IN F AVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, WHERE IT HAS BEEN HELD THAT TH E EXCISE DUTY REFUND RRECEIVED BY THE ASSESSEE FROM THE CENTRAL EXCISE D EPARTMENT IS A CAPITAL RECEIPT GIVEN TO THE ASSESSEE FOR SETTING UP OF AN INDUSTRIAL UNDERTAKING IN THE PRESCRIBED AREA OF THE STATE OF JAMMU & KASHMIR AND CANNOT BE TAXED AND REVENUE RECEIPT. 3. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT TH E LD. CIT(A)HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.61,22,225/- MADE BY THE AO BY DISALLOWING DEDUCTION U/S 80IB OF THE ACT. HE FURTHER STATED TH AT THE AO RIGHTLY OBSERVED THAT THE AMOUNT RECEIVED ON THE REIMBURSEMENT OF EX CISE DUTY REFUND WAS NOT DERIVED FROM THE ELIGIBLE BUSINESS OF INDUSTRIAL UN DERTAKING. 4. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT THE I SSUE IN DISPUTE RELATING TO EXCISE DUTY REFUND HAS ALREADY BEEN DECIDED BY THE HONBLE J & K HIGH COURT, IN THE CASE OF SHRI BALAJI ALLOYS & ORS. VS. COMMI SSIONER OF INCOME TAX & ORS. (2011) 33 ITR 335 ( J & K) IN FAVOUR OF THE ASSESSE E, HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND IS NOT LIABLE TO TAX. 3 ITA NO.452(ASR)/2015 AY 2009-10 5. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION O F THE HONBLE J & K HIGH COURT, IN THE CASE OF SHRI BALAJI ALLOYS & ORS. VS . COMMISSIONER OF INCOME TAX & ORS. (SUPRA), WHICH IS SQUARELY APPLICABLE TO PR ESENT CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED.. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH JUNE, 2016. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/06/2016. /SKR/ COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE:SH. VIJAY KUMAR SHARMA THROUGH L/H MRS. VEENA SHARMA, HOSHIARPUR. (2) THE ITO WARD-3, HOSHIARPUR. (3) THE CIT(A), JLR (4) THE CIT, JLR (5) THE SR DR, I.T.A.T. TRUE COPY BY ORDER