The Dy. Commissioner of Income-tax, Pathankot V. M/s. Maken Cement Industries, Kathua, Pathankot

ITA 542/ASR/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0605 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 09-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VAIBHAV AGGARWAL
• 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. 542(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN :AAFFM7968Z DY. CIMMR. OF INCOME TAX VS. M/S. MAKAN CEMENT INDU STRIES, CIRCLE, PATHANKOT. KATHUA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY: SH. VAIBHAV AGGARWAL, CA DATE OF HEARING: 08/01/2013 DATE OF PRONOUNCEMENT:08/01/2013 ORDER PER BENCH ; THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A), AMRITSAR, DATED 17.08.2011 FOR THE ASSES SMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.13,33,629/- ON ACCO UNT OF EXCISE DUTY REFUND AND RS.33,716/- BY ALLOWING DEDUCTION CLAIMED U/S 80IB OF THE INCOME TAX ACT, 1961 ON THE PLEA T HAT EXCISE DUTY REFUND IS CAPITAL RECEIPT AND HAVE DIRECT NEX US WITH MANUFACTURING PROFITS. ITA NO.542(ASR)/2011 2 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY O R MORE GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING BOTH THE LD. DR AND LD. C OUNSEL FOR THE ASSESSEE CONCEDED THAT THE ISSUE IN DISPUTE IS COV ERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) WHEREIN THE HONBLE HIGH COURT HAS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT MATERIAL AVAILABLE WITH US, WE ARE OF THE VIEW THAT THE IS SUE INVOLVED IN THE PRESENT GROUNDS OF APPEAL IS RELATING TO DEDUCTION UNDER S ECTION 80IB ON EXCISE DUTY REFUND AND IT IS AN ADMITTED FACT THAT THE ISS UE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSES SEE BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KA SHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 I TR 335 (J&K) BY HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATE D AS CAPITAL RECEIPT AND NOT LIABLE TO BE TAXED. ITA NO.542(ASR)/2011 3 3.1. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO DE CIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY RELYING UPON THE DECISION OF TH E HON'BLE JURISDICTIONAL HIGH COURT OF J & K, IN THE CASE OF SHREE BALAJI A LLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K). THEREFORE, RESPECTFULLY F OLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SURPA), WE D ISMISS THE APPEAL OF THE REVENUE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH JAN., 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. MAKAN CEMENT INDUSTRIES, KATHUA 2. THE DCIT, CIRCLE, PATHANKOT. 3. THE CIT(A), ASR. 4. THE CIT , ASR. 5. THE SR DR, ITAT, AMRITSAR.