ACIT, Central Circle- 29, New Delhi V. Abhisar Buildwell (P) Ltd., Delhi

ITA 5825/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5295 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 11-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R S SINGVI
• Keywords: Depreciation; Capital receipt
• Section: 80IC; 80IC; 13; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, A: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI G.S. PANNU, HONBLE PRESIDENT AND SHRI KUL BHARAT, HONBLE JUDICIAL MEMBER ITA NO.5825/DEL/2017 [ASSESSMENT YEAR: 2014-15] ACIT, CENTRAL CIRCLE-29, NEW DELHI ROOM NO. 318, 3 RD FLOOR, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. M/S ABHISAR BUILDWELL (P) LTD. 1711, S.P. MUKHERJEE MARG, DELHI-110006 PAN-AAFCA6845D APPELLANT RESPONDENT REVENUE BY SHRI VIJAY KUMAR KATARIA, SR. DR ASSESSEE BY SH. R.S. SINGVI, CA DATE OF HEARING 10.09.2021 DATE OF PRONOUNCEMENT 10.09.2021 ORDER PER KUL BHARAT, JM, THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 05.06.2017 OF THE LEARNED CIT(A)-30, NEW DELHI, REL ATING TO ASSESSMENT YEAR 2014-15. THE SOLITARY GROUND RAISED IN THIS APPEAL IS RELATING TO DELETION OF ADDITION OF RS. 4,12,17,481/- BY THE LD. CIT(A). 2. AT THE OUTSET, LD. A.R. FOR THE ASSESSEE SUBMITT ED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE DECISIONS OF THE ITAT, DELHI IN FAVOUR OF ASSESSEE IN ASSESSEES OWN CASE IN EARLIER YEARS I. E. 2011-12, 2012-13 & 2013- 2 ITA NO.5825/DEL/2017 14. FOR READY REFERENCE, HE PLACED THE COPIES OF THE ORDERS OF ITAT, DELHI BENCHES IN RESPECT OF AFORESAID ASSESSMENT YEARS. ACCORDINGLY, HE REQUESTED THAT FOLLOWING THE PRECEDENTS AS AFORESAID, THE INS TANT ISSUE MAY BE DECIDED IN FAVOUR OF THE ASSESSEE IN THE INSTANT REVENUES APP EAL AND THE APPEAL OF THE REVENUE MAY BE DISMISSED BY UPHOLDING THE ORDER OF THE LD. CIT(A) FOR THE INSTANT ASSESSMENT YEAR. 3. ON THE CONTRARY, LD. DR HAS SUBMITTED THAT SINCE THE DEPARTMENT HAS PREFERRED APPEALS BEFORE THE HONBLE DELHI HIGH COU RT AGAINST THE ORDERS OF THE TRIBUNAL IN EARLIER YEARS, THEREFORE, THE PRESENT A PPEAL OF THE REVENUE MAY BE ALLOWED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS ESPECIALLY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER ASSESSMENT YEARS, WHEREIN THE SIMILAR ISSUE HAS BEEN DECIDED IN FAVOU R OF THE ASSESSEE AND REVENUES APPEALS HAVE BEEN DISMISSED BY UPHOLDING THE ORDER OF THE LD. CIT(A). WE FIND THAT IN THE ASSESSMENT YEARS 2012- 13 & 2013-14 IN ITA NOS. 5129 & 5130/DEL/2015 IN ASSESSEES OWN CASE THE IT AT, DELHI BENCH HAS OBSERVED AS UNDER :- 7. WE FIND THAT IN ASSESSMENT YEAR 2011-12, IN ITA NO. 823/DEL/2015 IN THE CASE OF THE ASSESSEE ITSELF, TH E EXCISE REFUND HAS BEEN HELD AS REVENUE RECEIPT AND DISALLOWANCE M ADE ON ACCOUNT OF DEPRECIATION HAS BEEN DELETED BY OBSERVI NG AS UNDER:- 13. SO FAR AS QUESTION OF TREATING THE REFUND OF EXCISE DUTY AS PART OF THE COST IS CONCERNED, IT IS THE CASE OF THE ASSESSEE THAT THE ENTIRE COST HAS BEEN PAID 3 ITA NO.5825/DEL/2017 BY THE ASSESSEE FOR PLANT AND MACHINERY AND AS SUCH , IT CANNOT BE REDUCED FROM THE COST OF ASSET. LD. AR FOR THE ASSESSEE RELIED UPON ORDER PASSED BY CIT(A) DATED 15.7.2016 IN ASSESSEES WON CASE FOR AYS 2012 - 13 AND 2013-14 WHEREIN EXCISE DUTY REFUND HAS NOT BEEN TREATED IN THE FORM OF CAPITAL SUBSIDY OR GRAN T WHICH CAN BE REDUCED FROM THE COST OF ASSETS. 14. SINCE FINDINGS RETURNED BY THE LD. CIT(A) ARE BASED UPON THE DECISION RENDERED BY HONBLE APEX COURT IN CIT VS. MEGHALAYA STEELS LTD. (2016) 383 ITR 217 (SC), WE ARE OF THE CONSIDERED VIEW THAT TH E EXCISE REFUND IS IN THE NATURE OF REVENUE RECEIPT FORMING PART OF PROFITS AND GAINS ARISING FROM THE BUSINESS AND AS SUCH CANNOT BE REDUCED FROM THE COS T OF PLANT AND MACHINERY. SO, THE FINDINGS RETURNED B Y LD. CIT(A) ON THIS ISSUE ARE CONFIRMED. 14. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT AO AS WELL AS CIT( A) HAVE ERRED IN MAKING ADDITION OF RS. 6,40,38,391/- BY DISALLOWING THE CLAIM OF DEPRECIATION OF THE ASSET MADE U/S. 32 OF THE ACT WHICH WOULD FURTHER ENTITLE TO THE ASSESSEE THE BENEFIT OF DEDUCTION U/S. 80IC ON PROFITS ENHANCED BY SUCH DISALLOWANCES MADE U/S. 3 2 OF THE ACT. CONSEQUENTLY, APPEAL FILED BY THE ASSES SEE IS PARTLY ALLOWED. 8. IN VIEW OF THE IDENTICAL QUESTION OF WHETHER THE RECEIPT OF EXCISE REFUND IS CAPITAL RECEIPT OR REVENUE RECEIPT AND WHETHER THE SAME WILL GO TO REDUCE THE ACTUAL COST OF ASSET IS INVOLVED IN THE YEAR UNDER CONSIDERATION, AND TH US RESPECTFULLY FOLLOWING THE FINDINGS OF THE TRIBUNAL IN ITA NO. 4990/DEL/2014 AND ITA NO. 823/DEL/2015, WE UPHO LD THE FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISP UTE. THE GROUNDS OF THE APPEAL RAISED BY THE REVENUE IN BOTH THE ASSESSMENT YEARS ARE DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. 5. THUS ON IDENTICAL FACTS IN PRECEDING YEARS THE ITAT, DELHI BENCH HAS DECIDED THE ISSUE IN DISPUTE IN ASSESSEES FAVOUR I N ASSESSEES OWN CASE, AS 4 ITA NO.5825/DEL/2017 AFORESAID. HENCE, RESPECTFULLY FOLLOWING THE PRECE DENTS AS ABOVE, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER WAS PRONOUNCED IN THE OPEN COURT ON 10/09/202 1. SD/- SD/- [G.S. PANNU] [ KUL BHARAT] PRESIDENT JUDICIAL MEMBER DELHI; DATED: 10/09/2021. SHASHI SHEKHAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI