Shivam Metal Shaper Industries, Jammu V. The Assistant Commissioner of Income Tax, Jammu

ITA 518/ASR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7874 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 19-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: TARUN BANSAL LD
• Keywords: Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.518(ASR)/2016 ASSESSMENT YEAR: 2010-11 M/S SHIVAM METAL SHAPER INDUSTRIES, PLOT NO.12-13, PHASE-II, INDUSTRIAL ESTATE, GANGYAL, JAMMU. PAN:AADFS-4066K VS. ASST. CIT, CENTRAL CIRCLE, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (LD. A DV.) RESPONDENT BY: SH. RAHUL DHAWAN (LD. DR) DATE OF HEARING: 07.08.2017 DATE OF PRONOU NCEMENT: 11.08.2017 ORDER PER N. K. CHOUDHRY (JM): THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE BY FEEL ING AGGRIEVED AGAINST THE ORDER DATED 05.08.2016 PASSED BY THE LD. CIT(A)-5, LUDHIANA, IN APPEAL NO.03/IT/CIT(A)-1/LDH /2012-13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL . 1) THAT THE ORDER UNDER APPEAL IS AGAINST LAW AND FACTS OF THE CASE. 2) THAT THE LD. CIT(A) HAS ERRED IN LAW IN NOT ACCE PTING THE CONTENTION OF THE APPELLANT IN VIEW OF JUDGMENT OF THE SUPREME COURT IN BALAJI ALLOYS CASE AND HIGH COURT OF JAMMU AND KASHMIR IN THE CASE OF APPELLANT ITSELF THE EXCISE DUTY REF UND RECEIVED IS CAPITAL RECEIPT AND CANNOT BE HELD AS REVENUE RECEI PT. 3) THAT THE LD. CIT(A) HAS ERRED IN LAW IN DISMISSI NG THE APPEAL OF THE APPELLANT. 4) ANY OTHER GROUND WHICH MAY BE ALLOWED AT THE TIM E OF HEARING. I TA NO.518(ASR)/2016 AS ST. YEAR: 2010-11 2 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THAT THE ASSESSEE IS AN SSI UNIT ENGAGED IN THE MANUFAC TURING OF STEEL DOORS, WINDOWS FRAMERS, POLES ETC. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSMENT WAS FRAMED U/S 143(2) OF THE INCOME TAX ACT AND THE ASSESSEE HAS CLAIMED THE EXCISE DUTY REFUND AS CAPITAL RECEIPT IN VIEW OF THE JUDGMENT OF THE HONBLE JAMMU AND KASHMIR HIGH COURT IN THE CASE OF SHRE E. BALAJI ALLOYS, 333 ITR 335(J&K). HOWEVER, THE LD. A SSESSING OFFICER TREATED THE SAME AS REVENUE RECEIPT ON THE GROU ND THAT THE SAID ORDER HAS NOT ATTENDED FINALITY BECAUSE THE RE VENUE DEPARTMENT HAS PREFERRED THE APPEAL AGAINST THE ORDER OF HONBLE HIGH COURT BY FILING SLP WHICH HAS BEEN ADMITT ED BY THE APEX COURT. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AN D THE LD. CIT ALTHOUGH CONSIDERED THE EXCISE DUTY REFUND AS CAPITAL RECEIPTS, HOWEVER, CONFIRMED/UPHELD THE DISALLO WANCE MADE BY THE ASSESSING OFFICER. 4. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AS IT IS NOT RES-INTIGRA THAT EXCISE DUTY REFUND IS NOT A CAPITAL RECEIPT AS IN THE CASE OF SHREE BALAJI ALLOYS (SUPRA) HAS ALREADY BEEN AFFIRMED BY THE APEX COURT, THEREFORE, THE SAME CANNO T BE CHALLENGED BY EITHER OF THE PARTIES. WHILE COMING TO THE GROUNDS OF APPEAL NO.2, THE ASSESSEE HAS SOUGHT DECLARATION OF EXCISE DUTY REFUND A S CAPITAL I TA NO.518(ASR)/2016 AS ST. YEAR: 2010-11 3 RECEIPT, HOWEVER, DID NOT PRAY FOR THE DELETION OF T HE DISALLOWANCE BY THE LD. CIT(A). IT IS OUR BOUNDEN DUTY TO CONSIDER TH E PECULIAR FACTS IN ITS LEGAL PERSPECTIVE, HENCE, WE ALLOW THE ASSESSEE TO PRAY FOR THE SAME. WE ARE OF THE CONSIDERED VIEW, ONCE THE EXCISE DUTY REFU ND HAS BEEN TREATED AS CAPITAL RECEIPTS THEN THERE CANNOT BE AN Y ADDITION ON THE BASIS OF THE SAME. HENCE, IN VIEW OF THE APEX COURT DECISIONS IN THE CASE OF SHREE BALAJI ALLOYS (SUPRA), THE ORDER OF D ISALLOWANCE IS SET ASIDE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.08.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY ) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED:11.08.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER