The Dy. Commissioner Income-tax, Pathankot V. M/s. Bharat Udyog, Pathankot

ITA 651/ASR/2014

• Counselvise Citation: 65120914 RSA 2014
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 30-10-2014
• 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. A.D.JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.651(ASR)/2014 ASSESSMENT YEAR:2011-12 PAN :AAHFB2895H DY.COMMISSIONER OF INCOME-TAX, VS. M/S. BHARAT UDYO G, SICOP CIRCLE VI, INDUSTRIES,, KATHUA (J&K) PATHANKOT. H.O. DALHOUSIE ROAD, PATHANKOT. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:NONE DATE OF HEARING:26/02/2015 DATE OF PRONOUNCEMENT:26/02/2015 ORDER PER A.D.JAIN,JM: THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2011-12 AGAINST THE ORDER OF THE CIT(A), AMRITSAR, DATED 22.08.2014 , DELETING THE ADDITION OF RS.61,50,375/- MADE BY THE AO U/S 80IB OF THE INC OME TAX ACT, 1961 (IN SHORT THE ACT), ON EXCISE DUTY REFUND, TREATING I T TO BE A REVENUE RECEIPT NOT DIRECTLY ATTRIBUTABLE TO THE INDUSTRIAL ACTIVIT IES OF THE ASSESSEE-FIRM. ITA NO.651(ASR)/2014 2 2. THE ASSESSING OFFICER MADE THE ADDITION IN ORDER T O 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 ADDITION, FOLLOWIN G THE TRIBUNALS ORDER DATED 05.08.2014 IN THE CASE OF IT O VS. T.K. PAPER MILLS, KATHUA IN ITA NO.106(ASR)/2014 FOR TH E A.Y. 2010- 11. 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 WHILE DOING SO, THE LEARNED CIT(A) HAS ERRED IN FOL LOWING THE TRIBUNALS DECISION IN THE CASE OF ITO VS. T.K. P APER MILLS, ITA NO.651(ASR)/2014 3 KATHUA (SUPRA) WHICH DECISION HAS NOT BEEN ACCEPTE D BY THE DEPARTMENT AND THE APPEAL FILED AGAINST THIS DECISI ON BEFORE THE HONBLE SUPREME COURT, IS STILL PENDING AND THAT TH E LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THE JUDGMENTS OF THE HONBLE SUPREME COURT IN SAHNEY STEEL AND PRESS WO RKS LTD. VS. CIT, 228 ITR 253 (SC) AND CIT VS. PONNY SUGARS AN D CHEMICALS LTD. , 306 ITR 392 (SC); WHEREIN, THE HONBLE SUPR EME COURT HAS HELD SUCH RECEIPTS TO BE REVENUE RECEIPTS. 5. THE NOTICE ISSUED TO THE ASSESSEE HAS RETURNED U NSERVED WITH THE NOTE OF THE POSTAL AUTHORITY THAT THE ASSE SSEE WOULD NOT BE FOUND IN THE PREMISES AT THE GIVEN ADDRESS. AS A CONSEQUENCE, NONE HAS PUT IN APPEARANCE BEFORE US O N BEHALF OF THE ASSESSEE. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED WITH IN THE ABSENCE OF THE ASSESSEE, WE A RE DOING SO. 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 ITA NO.651(ASR)/2014 4 BALAJI ALL).OYS (SUPRA), HOLDS, INTER ALIA, THAT EXCISE DUTY REFUND 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 I TO VS. T.K. PAPER MILLS, KATHUA (SUPRA) OF THE ITAT, AMRITSAR B ENCH AND THAT THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING TH E CASES OF SAHNEY STEEL AND PRESS WORKS LTD.(SUPRA) AND PON NY SUGARS AND CHEMICALS LTD. (SUPRA). 8. WE HAVE ALSO TAKEN THE ABOVE VIEW, IN SIMILAR FA CTS AND CIRCUMSTANCES, IN INCOME TAX OFFICER, WARD-3, HOSH IARPUR VS.SH.VIJAY KUMAR SHARMA L/H MRS. VEENA SHARMA PROP . HARI ITA NO.651(ASR)/2014 5 NARAIN INDUSTRIES, HOSHIARPUR, IN ITA NO.541(ASR)/2 014, FOR A.Y. 2010-11, VIDE ORDER DATED 13.02.2014. 9. FOR THE ABOVE DISCUSSION, THE SOLE GROUND TAKEN BY THE DEPARTMENT IS FOUND TO BE SHORN OF MERIT, AND IS, H ENCE, REJECTED. 10. THEREFORE, FINDING NO ERROR, WHATSOEVER THEREIN , THE LEARNED CIT(A)S ORDER UNDER APPEAL IS UPHELD. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBRUARY, 2015. (B.P. JAIN) (A.D.JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26TH FEBRUARY, 2015 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. BHARAT UDYOG, SICOP INDUSTRIES, KATHUA, H.P. PATHANKOT. 2. THE DCIT, CIR.VI, PATHANKOT 3. THE CIT(A), ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.