The Deputy Commissioner of Income tax, Jammu V. M/s. Shiva Mint Industries, Jammu

ITA 713/ASR/2013

• Counselvise Citation: 71320914 RSA 2013
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2013
• 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. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 711(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: AABFF4186D INCOME TAX OFFICER, VS. M/S FINE AROMATICS, WARD-1(1), JAMMU 47B.48 A/B, BIRPUR INDUSTRIAL ESTATE, BARI BRAHMANA, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: NONE. AND I.T.A. NO. 712(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: AAEFJ6381K INCOME TAX OFFICER, VS. M/S JAY AMBAY AROMATICS, WARD-1(1), JAMMU SIDCO INDUSTRIAL COMPLEX , NEAR ESI HOSPITAL BARI BRAHMANA, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: NONE. AND I.T.A. NO. 713(ASR)/2013 ASSESSMENT YEAR: 2010-11 PAN: ABGFS8493Q DEPUTY COMMISSIONER OF INCOME VS. M/S SHIVA MINT IN DUSTRIES, TAX, CIRCLE-1, 2 ND FLOOR, AAYAKAR 99-B, BIRPUR INDL. COMPLEX, 2 I.T.A. NOS. 711,712 & 713(ASR)/2013 BHAWAN, RAILHEAD COMPLEX, BARI BRAHMNA, JAMMU JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: NONE. DATE OF HEARING: 28.01.2014 DATE OF PRONOUNCEMENT: 28.01.2014 ORDER PER BENCH THE REVENUE HAS FILED AFORESAID THREE APPEALS AGA INST DIFFERENT IMPUGNED ORDERS OF LEARNED CIT(A), JAMMU, EACH DATE D 05.09.2013 FOR THE ASSESSMENT YEAR 2010-11. THE ISSUES INVOLVED IN ALL THE APPEALS ARE COMMON; THEREFORE, WE HAVE HEARD THESE APPEALS TOGE THER AND DECIDED THE ISSUES IN DISPUTE BY PASSING ONE CONSOLIDATED ORDER FOR, THE SAKE OF CONVENIENCE. THE REVENUE HAS TAKEN ALMOST IDENTICAL GROUNDS OF APPEAL IN ALL THESE THREE APPEALS THEREFORE, FOR THE SAKE OF CONVENIENCE, THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN I.T.A. NO. 711(ASR)/ 2013 ARE REPRODUCED AS UNDER: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BLE HIGH COURT J&K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS OF THE ISSUE BUT HOLDING TH E RECEIPT TO BE A CAPITAL RECEIPT ONLY BECAUSE THE POLICY UNDER WHICH THE SAME WAS PAID 3 I.T.A. NOS. 711,712 & 713(ASR)/2013 ENVISAGED TACKLING THE UNEMPLOYMENT IN THE STATE WH ICH CANNOT BE SAID TO BE A GOOD TEST FOR DECIDING WHETHER A RECEI PT IS A TRADING RECEIPT OR A CAPITAL RECEIPT. 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT APPRECIATING THE JUDGMENTS OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF PONNI SUGAR & SAWHNEY STEEL AND PRESS WORKS LTD, WHEREIN THE HON'BLE SUPREME COURT HAD HELD SUCH RECEIPTS TO BE THE REVE NUE RECEIPTS INASMUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AF TER THE INDUSTRIES HAD BEEN SET UP AND PAYMENTS WERE NOT MADE FOR PURP OSE OF SETTING UP OF INDUSTRIES. 3. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT CONSIDERING THE DECISION IN THE CASE OF SEAHAM HARBOUR DOCK COMPANY WHICH LAYS DOWN TWO IMPORTANT TESTS FOR DETERMINING WHETHER RE CEIPTS IS A TRADING RECEIPT OR A CAPITAL RECEIPT. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT APPRECIATING AND APPLIED THE PURPOSE TEST AS LAID DOWN BY THE JUDGME NTS OF THE HON'BLE SUPREME COURT. IN THE CASE OF ASSESSEE, THE MONEY RECEIVED BY THE ASSESSEE ON ACCOUNT OF REFUND & INTEREST SUBSIDY WA S NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAV E HEARD LEARNED DR AND PERUSED THE MATERIALS AVAILABLE ON R ECORD AND WE ARE OF THE VIEW THAT THE ISSUES INVOLVED IN GROUNDS OF APPEAL OF THE REVENUE RELATING TO 4 I.T.A. NOS. 711,712 & 713(ASR)/2013 DEDUCTION UNDER SECTION 80IB OF THE INCOME-TAX ACT, 1961 ON EXCISE DUTY REFUND ARE SQUARELY COVERED BY THE JUDGMENT OF HON' BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, WHERE THE HONBLE HIGH COURT HAS HELD THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND IS NOT LIABLE TO BE TAXED. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER (SUPRA), WE DISMISS ALL THE AFORESAID THREE APPEAL S FILED BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS OF REVENUES APPEALS ARE DISMISSED. 5. IN THE RESULT, ALL THE AFORESAID THREE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: (1) M/S FINE AROMATICS, 47B.48 A /B, BIRPUR INDUSTRIAL ESTATE, BARI BRAHMANA, JAMMU 5 I.T.A. NOS. 711,712 & 713(ASR)/2013 (2) M/S JAY AMBAY AROMATICS, SIDCO INDUSTRIAL COMP LEX, NEAR ESI HOSPITAL BARI BRAHMANA, JAMMU (3) M/S SHIVA MINT INDUSTRIES, 99-B, BIRPUR INDL. COMPLEX, BARI BRAHMNA, JAMMU 2. INCOME TAX OFFICER, WARD-1(1), JAMMU 3. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, 2 ND FLOOR, AAYAKAR BHAWAN, RAILHEAD COMPLEX, JAMMU. 4. THE CIT(A), 5. THE CIT, 6. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.