The Deputy Commissioner of Income tax, Jammu V. Sh. Girish Anil Dongare, Jammu

ITA 481/ASR/2013

• Counselvise Citation: 48120914 RSA 2013
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-09-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VINAMAR GUPTA CA AND
• 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. 470(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAICS3195D THE INCOME TAX OFFICER, VS. M/S SH REE GURU KRIPA CEMENT WARD-1(3), JAMMU PVT. LTD., 4/4 TRIKUTA NAG AR, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: SH. VINAMAR GUPTA, CA AND I.T.A. NO. 478(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAHFK4471E THE INCOME TAX OFFICER, VS. M/S KEMT EC INDIA, 245 MAST WARD-1(3), JAMMU GARH, JAMMU, NOW PLOT NO.199 PHASE-II, IGC, SIDCO SAMBA (J&K) (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: NONE AND 2 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 I.T.A. NO. 479(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AACCT2737L THE INCOME TAX OFFICER, VS. M/S TBA OSNAR CH EMICALS PVT. LTD. WARD-1(2), JAMMU 179-A/D, GANDHI NAGAR, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: NONE AND I.T.A. NO. 480(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: ADIPG0617N DEPUTY COMMISSIONER OF VS. SH. RAJESH GIRI, PROP . AVITA MOBILES INCOME TAX, CIRCLE-1, INDUSTRIES, LANE NO. 4 , PHASE-1, AAYAKAR BHAWAN, JAMMU SIDCO INDUSTRIAL COMPLEX, BARI BRAHMANA, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: NONE AND I.T.A. NO. 481(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAUPD5547K DEPUTY COMMISSIONER OF VS. SH. GIRISH ANIL DONG ARE 3 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 INCOME TAX, CIRCLE-1, PLOT NO. 33, SIDCO, IN DUSTRIAL AAYAKAR BHAWAN, PANAMA AREA, BIRPUR, JAMMU CHOWK, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: NONE AND I.T.A. NO. 482(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAEFC8244J INCOME TAX OFFICER, VS. M/S CHANDRABAGHA PACKERS, WARD -1(1), JAMMU PHASE-II, SIDCO INDUSTRIAL COMPLEX, BARI BRAHMANA, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: NONE AND I.T.A. NO. 500(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: AAFFV2829P INCOME TAX OFFICER, VS. M/S VIJAY STEEL INDUSTRIE S, WARD-1(3), JAMMU IGC, BARI BRAHMANA, JAMMU AAYAKAR BHAWAN, PANAMA CHOWK (APPELLANT) (RESPONDENT) 4 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 APPELLANT BY: SH. MAHAVIR SINGH, SR.DR & SH. TARSEM LAL, DR RESPONDENT BY: SH. S.K. BANSAL, ADVOCATE DATE OF HEARING: 12.09.2013 DATE OF PRONOUNCEMENT: 12.09.2013 ORDER PER BENCH THE REVENUE HAS FILED AFORESAID S EVEN APPEALS AGAINST DIFFERENT IMPUGNED ORDERS OF LEARNED CIT(A), JAMMU FOR THE AS SESSMENT YEARS 2009- 10 & 2010-11. THE ISSUES INVOLVED IN ALL THE APPEAL S ARE COMMON; THEREFORE, WE HAVE HEARD THESE APPEALS TOGETHER AND DECIDED TH E ISSUES IN DISPUTE BY PASSING ONE CONSOLIDATED ORDER FOR, THE SAKE OF CON VENIENCE. THE REVENUE HAS TAKEN ALMOST IDENTICAL GROUNDS OF APPEAL IN ALL THESE SEVEN APPEALS THEREFORE, FOR THE SAKE OF CONVENIENCE, THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN I.T.A. NO. 470(ASR)/2013 ARE REPRODUCED AS UNDER: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT J&K, JAMMU WHICH 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 5 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 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 INASMUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AF TER 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 & INTEREST SUBSIDY WA S NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESS EES STATED THAT THE ISSUES IN DISPUTE HAVE ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE BY THE HON'BLE JURISDICTIONAL HIGH COU RT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTH ER (2011) 333 ITR 335 6 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 (J&K.). AS SUCH, THEY REQUESTED THAT THESE APPEALS FILED B Y THE REVENUE MAY BE DISMISSED. 3. ON THE CONTRARY, LEARNED DR RELIED UPON THE OR DER PASSED BY THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATE RIAL AVAILABLE ON RECORD WITH US AND WE ARE OF THE CONSIDERED VI EW THAT THE ISSUE INVOLVED IN GROUNDS OF THE APPEAL OF REVENUE RELATING TO DE DUCTION UNDER SECTION 80IB ON EXCISE DUTY REFUND IS SQUARELY COVERED BY T HE 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 HAS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CA PITAL RECEIPT AND IS NOT LIABLE TO BE TAXED. THEREFORE, RESPECTFULLY FOLLOW ING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMI R IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (SUPRA), WE DISMISS ALL THE AFORESAID SEVEN APPEALS FILED BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS OF REVENUES APPEALS ARE DISMISSED. 7 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 5. IN THE RESULT, ALL THE AFORESAID SEVEN APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH SEPTEMBER, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES: I. M/S SHREE GURU KRIPA CEMENT PVT. LTD., 4/4 TRIKUTA NAGAR, JAMMU II. M/S KEMTEC INDIA, 245 MAST GARH, JAMMU, NOW PLOT NO .199 PHASE-II, IGC, SIDCO SAMBA (J&K) III. M/S TBA OSNAR CHEMICALS PVT. LTD. 179-A/D, GANDHI N AGAR, JAMMU IV. SH. RAJESH GIRI, PROP. AVITA MOBILES INDUSTRIES, LA NE NO. 4, PHASE-1, SIDCO INDUSTRIAL COMPLEX, BARI BRAHMANA, JAMMU V. SH. GIRISH ANIL DONGARE PLOT NO. 33, SIDCO, INDUSTR IAL AREA, BIRPUR, JAMMU VI. M/S CHANDRABAGHA PACKERS, PHASE-II, SIDCO INDUSTRIA L COMPLEX, BARI BRAHMANA, JAMMU VII. M/S VIJAY STEEL INDUSTRIES, IGC, BARI BRAHMANA, JAM MU 2. INCOME TAX OFFICER, WARD-1(3), JAMMU 3. INCOME TAX OFFICER, WARD-1(2), JAMMU 4. THE DCIT, CIRCLE-1, AAYAKAR BHAWAN, JAMMU 5. INCOME TAX OFFICER, WARD -1(1), JAMMU 6. THE CIT(A), JAMMU 7. THE CIT, JAMMU 8. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) 8 I.T.A. NOS. 470, 478, 479, 480, 481, 482 & 500(ASR)/2013 INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.