The Income Tax Officer, Samba V. M/s Ravi Crop Science, Samba

ITA 512/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9579 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-09-2015
• 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. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO.512(ASR)/2015 ASSESSMENT YEAR:2011-12 PAN :AAIFR8256R THE INCOME TAX OFFICER, VS. M/S. RAVI CROP SCIENCE , WARD-1(5), SAMBA. IGC, SIDCO, SAMBA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN, DR RESPONDENT BY: NONE DATE OF HEARING: 14/09/2016 DATE OF PRONOUNCEMENT: 16/09/2016 ORDER PER T.S. KAPOOR, AM: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER OF THE LD. CIT(A), JAMMU, DATED 06.08.2015 FOR THE ASSESSM ENT YEAR 2011-12 ON THE FOLLOWING GROUNDS: 1 WHETHER THE LD. CIT(A) WAS JUSTIFIED IN LAW TO ALLOW DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 ON C ENTRAL EXCISE DUTY REFUND BY RELYING UPON THE JUDGMENT OF HON'BLE HIGH COURT OF J&K, IN THE CASE OF M/S. SHREE BALAJI ALLOYS & O THERS AND IGNORING THE RATIO OF THE LAW ON THE ISSUE AS LAID DOWN IN THE CASE OF PONNI SUGAR & SAWHNEY STEEL AND PRESS WORKS LTD. 2. WHETHER THE LD. CIT(A), JAMMU COMMITTED AN ERRO R IN LAW IN NOT FOLLOWING THE LAW AS LAID DOWN BY THE HON'B LE SUPREME COURT OF INDIA IN THE CASE OF PONNI SUGAR & SAWHNEY STEEL AND PRESS WORKS LTD, WHEREIN RECEIPTS WERE HELD TO BE T HE REVENUE IN NATURE AS THE SAME HAD BEEN MADE AFTER THE INDUSTRI ES HAD BEEN SET UP AND NOT FOR PURPOSE OF SETTING UP OF THE IND USTRIES. 2 3. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN NOT CONS IDERING 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. WHETHER IN LAW, THE LD. CIT(A), JAMMU WAS JUSTI FIED IN NOT APPRECIATING AND APPLYING THE PURPOSE TEST AS LAID DOWN BY THE JUDGMENTS OF THE HON'BLE SUPREME COURT. IN THE CAS E OF ASSESSEE, THE MONEY RECEIVED BY THE ASSESSEE, THE MONEY RECEI VED BY THE ASSESSEE ON ACCOUNT OF CENTRAL EXCISE WAS NOT SUPP OSED TO BE SPENT IN A PARTICULAR MANNER OR FOR PURPOSE OF SUB STANTIAL EXPANSION OF THE INDUSTRY. 2. THE LD. DR, RELIED ON THE ORDER OF THE ASSESSING OFFICER. BUT AT THE SAME TIME CONCEDED THAT THE ISSUE IS SQUARELY COVER ED BY THE DECISION OF THE HONBLE J & K HIGH COURT, IN THE CASE OF SHREE BALAJI ALLOYS VS. CIT & ANOTHER, 333 ITYR 335. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. 2. WE HAVE HEARD THE LEARNED DR AND HAVE PERUSED MA TERIAL AVAILABLE ON RECORD WITH US. WE ARE OF THE VIEW THAT THE I SSUE INVOLVED IN GROUNDS OF THE APPEAL OF THE REVENUE RELATING TO DEDUCTION UNDER SECTION 80IB ON EXCISE DUTY REFUND IS SQUARELY COV ERED BY THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KAS HMIR IN THE CASE OF SHREE BALAJI ALLOYS VS. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, WHE RE THE HONBLE HIGH COURT HAS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND IS NOT LIABLE TO BE TAXED. THE SAID DE CISION OF THE HONBLE J & K HIGH COURT HAS NOW BEEN UPHELD BY THE HONBLE SUP REME COURT, WHERE 3 THE HONBLE SUPREME COURT HAS DISMISSED THE APPEAL FILED BY THE REVENUE. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/09/20 16. SD/- SD/- (N.K. CHOUDHRY) (T.S. KAPOOR ) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ DATED: 16/09/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. RAVI CROP SCIENCE, SAMBA. 2. THE ITO 1(5), SAMBA. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.