The Income-tax Officer, Hoshiarpur V. Sh. Vijay Kumar Sharma, Distt. Hoshiarpur

ITA 541/ASR/2014

• Counselvise Citation: 54120914 RSA 2014
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 03-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

ITA NO.541(ASR)/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.541(ASR)/2014 ASSESSMENT YEAR:2010-11 PAN :ABRPS3528H INCOME TAX OFFICER, VS. SH. VIJAY KUMAR SHARMA, WARD-3, HOSHIARPUR. L/H MRS. VEENA SHARMA PROP. HARI NARAIN INDUSTRIES, KRISHNA NAGAR, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH.J.S.BHASIN, ADVOCATE DATE OF HEARING:09/02/2015 DATE OF PRONOUNCEMENT:13/02/2015 ORDER PER A.D.JAIN,JM: THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2010-11 AGAINST THE ORDER OF THE CIT(A), JALANDHAR, DATED 19.06.201 4, DELETING THE ADDITION/DISALLOWANCE OF RS.60,51,511/- MADE BY TH E AO U/S 80IB OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), ON EXCIS E DUTY REFUND, TREATING IT ITA NO.541(ASR)/2014 2 TO BE A REVENUE RECEIPT NOT DIRECTLY ATTRIBUTABLE T O THE INDUSTRIAL ACTIVITIES OF THE ASSESSEE-FIRM. 2. THE ASSESSING OFFICER MADE THE DISALLOWANCE IN ORD ER TO FOLLOW THE CONSISTENCY OF THE STAND AS TAKEN BY THE DEPARTMENT IN OTHER CASES. THE ASSESSING OFFICER OBSERVED THAT THE DECISION IN THE CASE OF M/S SHREE BALAJI ALLOYS AND ORS. VS. CIT , 333 ITR 335 (J&K), WHICH HAS GONE IN FAVOUR OF THE ASSESSEE, HAD NOT BEEN ACCEPTED BY THE DEPARTMENT A ND THE DEPARTMENTS SPECIAL LEAVE PETITION WAS HITHERTO PENDING BEFORE THE HONBLE SUPREME COURT. 3 THE LEARNED CIT(A) DELETED THE DISALLOWANCE, FOLL OWING THE TRIBUNALS ORDER IN THE CASE OF SH. VINOD KUMAR JAI N PROP. M/S. V.K. METAL WORKS ( ITA NO.65(ASR)/2010) AND M/S. BA LAJI RESIN INDUSTRIES (ITA NO.68(ASR)/2010) DATED 26.10.2012. 4. CHALLENGING THE IMPUGNED ORDER, THE LEARNED DR H AS CONTENDED THAT THE LEARNED CIT(A) HAS ERRED IN DELE TING THE ADDITION CORRECTLY MADE BY THE ASSESSING OFFICER BY DISALLOWING THE DEDUCTION UNDER SECTION 80IB OF THE ACT, ON EXC ISE DUTY REFUND, TREATING IT TO BE A REVENUE RECEIPT NOT DIR ECTLY ATTRIBUTABLE TO THE INDUSTRIAL ACTIVITIES OF THE AS SESSEE; THAT ITA NO.541(ASR)/2014 3 WHILE DOING SO, THE LEARNED CIT(A) HAS ERRED IN FOL LOWING THE TRIBUNALS DECISION IN THE CASE OF SH. VINOD KUMAR JAIN PROP. M/S. V.K. METAL WORKS AND M/S. BALAJI RESIN INDUSTR IES (SUPRA), WHICH DECISIONS HAVE NOT BEEN ACCEPTED BY THE DEPAR TMENT AND THE APPEALS FILED AGAINST THESE DECISIONS BEFORE TH E HONBLE SUPREME COURT, ARE STILL PENDING; AND THAT THE LEAR NED CIT(A) HAS ERRED IN NOT APPRECIATING THE JUDGMENTS OF THE HONBLE SUPREME COURT IN SAHNEY STEEL AND PRESS WORKS LTD. VS. CIT , 228 ITR 253 (SC) AND CIT VS. PONNY SUGARS AND CHEM ICALS LTD. , 306 ITR 392 (SC); WHEREIN, THE HONBLE SUPREME COUR T HAS HELD SUCH RECEIPTS TO BE REVENUE RECEIPTS. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 6. HAVING CONSIDERED THE RIVAL CONTENTIONS IN THE L IGHT OF THE MATERIAL PLACED ON RECORD, WE ARE OF THE VIEW THAT THE ISSUE AT HAND IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF JAMMU AND KASHMIR, IN THE CASE OF IN THE CASE OF SHREE BALAJI ALLOYS ( SUPRA). SHREE BALAJI ALL).OYS (SUPRA), HOLDS, INTER ALIA, THAT EXCISE DUTY REFUND ITA NO.541(ASR)/2014 4 IS A CAPITAL RECEIPT. THIS JUDGMENT, IT IS SEEN, HA S BEEN PASSED AFTER DULY TAKING INTO CONSIDERATION THE CASES OF SAHNEY STEEL AND PRESS WORKS LTD.(SUPRA) AND PONNY SUGARS AND CHEMICALS LTD.(SUPRA). THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE FOLLOWING THE CASE OF MEPCO INDUSTRIES LT D. VS. CIT, 319 ITR 208 (SC), WHEREIN, BOTH SAHNEY STEEL AND PRESS WORKS LTD.(SUPRA) AND PONNY SUGARS AND CHEMICALS LTD. (SUPRA) WERE CONSIDERED. 7. AS SUCH, THE DEPARTMENT IS WRONG IN CONTENDING T HAT THE LEARNED CIT(A) HAS ERRED IN DECIDING THE ISSUE IN F AVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION IN THE CASE OF S H. VINOD KUMAR JAIN PROP. M/S. V.K. METAL WORKS AND M/S. BA LAJI RESIN INDUSTRIES (SUPRA) OF THE ITAT, AMRITSAR BENCH AND THAT THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THE CA SES OF SAHNEY STEEL AND PRESS WORKS LTD.(SUPRA) AND PONNY SUGAR S AND CHEMICALS LTD. (SUPRA). 8. WE HAVE ALSO TAKEN THE ABOVE VIEW, IN SIMILAR FA CTS AND CIRCUMSTANCES, IN INCOME TAX OFFICER, WARD-3, PATH ANKOT VS. M/S. T.K. PAPER MILLS, CHACK SAKTA, KATHUA, H.O.- P ATHANKOT, IN ITA NO.541(ASR)/2014 5 ITA NO.106(ASR)/2014, FOR A.Y. 2010-11, VIDE ORDER DATED 05.08.2014. 9. FOR THE ABOVE DISCUSSION, THE GROUNDS TAKEN BY T HE DEPARTMENT ARE FOUND TO BE SHORN OF MERIT, AND ARE, HENCE, REJECTED. 10. THEREFORE, FINDING NO ERROR, WHATSOEVER THEREIN , THE LEARNED CIT(A)S ORDER UNDER APPEAL IS UPHELD. 11. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH FEBRUARY, 2015. SD/- SD/- (B.P. JAIN) (A.D.JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13TH FEBRUARY, 2015 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.VIJAY KUMAR SHARMA L/H MRS. VEENA S HARMA , HOSHIARPUR. 2. THE ITO WARD-3, HOSHIARPUR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.