The Income Tax Officer, Jammu V. Sh. Vinod Kumar Jain, Jammu

ITA 769/ASR/2014

• Counselvise Citation: 76920914 RSA 2014
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Keywords: Capital receipt
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. PRAMOD KUMAR, ACCOUNTANT MEMBER AND SH. A.D.JAIN, JUDICIAL MEMBER I.T.A. NO. 769(ASR)/2014 ASSESSMENT YEAR: 2009-10 PAN : AAFPJ5872Q THE INCOME TAX OFFICER, WARD 1(3), JAMMU AAYAKAR BHAWAN, PANAMA CHOWK, JAMMU. VS. SH. VINOD KUMAR JAIN, PROP. M/S. V.K.METAL WORKS, PHASE 2 ND , SIDCO, INDL, BARI BRAHMANA, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARSEM LAL, DR. RESPONDENT BY: NONE. DATE OF HEARING: 01.06.2015 DATE OF PRONOUNCEMENT: 03.07.2015 ORDER PER A.D.JAIN (JM): THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2009-10 AGAINST THE ORDER OF THE CIT(A), JAMMU, DATED 30.10 .2014, DELETING THE ADDITION/DISALLOWANCE OF RS.23,66,665/- MADE BY THE AO U/S 80IB OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON EXCISE DUTY REFUND, TREATING IT TO BE A REVENUE RECEIPT NOT DIRECTLY ATTRIBUTABLE TO T HE INDUSTRIAL ACTIVITIES OF THE ASSESSEE FIRM. 2. THE NOTICE SENT TO THE ASSESSEE BY RPAD HAS BEEN DULY SERVED AND THE ACKNOWLEDGMENT RECEIPT HAS BEEN RECEIVED IN THE REG ISTRY. HOWEVER, NONE HAS 2. ITA NO.769/ASR/ 2014 ASST. YEAR.2009- 10 COME PRESENT BEFORE US ON BEHALF OF THE ASSESSEE . WE ARE, THEREFORE, PROCEEDING TO DECIDE THE APPEAL, HAVING HEARD THE LD. DR. 3. THE ASSESSING OFFICER MADE THE DISALLOWANCE IN O RDER 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 DEPARTME NT AND THE DEPARTMENTS SPECIAL LEAVE PETITION WAS HITHERTO PENDING BEFORE THE HONBLE SUPREME COURT. 4. THE LEARNED CIT(A) DELETING THE DISALLOWANCE , FOLLOWING THE JUDGMENT OF THE HONBLE J & K HIGH COURT, IN THE CASE OF M/S. BALAJI ALLOYS AND OTHERS VS. CIT (SUPRA), WHERE IT HAS BEEN HELD THAT EXCISE DU TY REFUND IN PURSUANCE TO THE INCENTIVE ALLOWANCE BY THE GOVERNMENT PERTAINING TO INDUSTRIAL POLICY INTRODUCED IN THE STATE OF J&K ARE CAPITAL RECEIPT. 5. CHALLENGING THE IMPUGNED ORDER, THE LEARNED DR H AS CONTENDED THAT THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION C ORRECTLY MADE BY THE ASSESSING OFFICER BY DISALLOWING THE DELETING UNDER SECTION 80IB OF THE ACT, ON EXCISE DUTY REFUND, TREATING IT TO BE A REVENUE RECEIPT NOT DIRECTLY ATTRIBUTABLE TO THE INDUSTRIAL ACTIVITIES OF THE AS SESSEE; THAT WHILE DOING SO, THE LEARNED CIT(A) HAS ERRED IN FOLLOWING THE JUDGMENT OF HONBLE J&K HIGH 3. ITA NO.769/ASR/ 2014 ASST. YEAR.2009- 10 COURT, IN THE CASE OF M/S. BALAJI ALLOYS AND OTHER S VS. CIT (SUPRA), WHICH DECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AN D THE APPEAL FILED AGAINST THIS DECISION BEFORE THE HONBLE SUPREME COURT, IS STILL PENDING; AND THAT THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THE JU DGMENTS OF THE HONBLE SUPREME COURT IN SAHNEY STEEL AND PRESS WORKS LTD. VS. CIT ,228 ITR 253(SC) AND CIT VS. PONNY SUGARS AND CHEMICALS LTD . , 306 ITR 392(SC); WHEREIN, THE HONBLE SUPREME COURT HAS HELD SUCH RE CEIPTS TO BE REVENUE RECEIPTS. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE, AS NOT ED. 7. HAVING HEARD THE LD. DR AND IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, WE ARE OF THE VIEW THAT THE ISSUE AT HAND I S SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY DECISION OF THE HONBLE JURISDIC TIONAL HIGH COURT OF JAMMU AND KASHMIR, IN THE CASE OF SHREE BALAJI ALLOYS ( SUPRA). SHREE BALAJI ALLOYS (SUPRA) HOLDS, INTER ALIA, THAT EXCISE DUTY REFUND IS A CAPITAL RECEIPT. THIS JUDGMENT, IT IS SEEN, HAS BEEN PASSED AFTER DULY TA KING INTO CONSIDERATION THE CASE OF SAHNEY STEEL AND PRESS WORKS LTD. (SUPRA) AND PONNY SUGAR AND CHEMICALS LTD. (SUPRA). THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE FOLLOWING THE CASE OF MEPCO INDUSTRIES LTD. VS. CI T, 319 ITR 208 (SC), WHEREIN, BOTH SAHNEY STEEL AND PRESS WORKS LTD. ( SUPRA) AND PONNY SUGAR AND CHEMICALS LTD. (SUPRA) WERE CONSIDERED. 4. ITA NO.769/ASR/ 2014 ASST. YEAR.2009- 10 8. AS SUCH, THE DEPARTMENT IS WRONG IN CONTENDING T HAT THE LEARNED CIT(A) HAS ERRED IN DECIDING THE ISSUE IN FAVOUR OF THE AS SESSEE BY FOLLOWING THE DECISION IN THE CASE HONBLE J & K HIGH COURT, IN T HE CASE OF M/S. BALAJI ALLOYS AND OTHERS VS. CIT (SUPRA), AND THAT THE LE ARNED CIT(A) HAS ERRED IN NOT APPRECIATING THE CASE OF SAHNEY STEEL AND PRESS WO RKS LTD.,(SUPRA) AND PONNY SUGARS AND CHEMICALS LTD.(SUPRA). 9. WE HAVE ALSO TAKEN THE ABOVE VIEW, IN SIMILAR FA CTS AND CIRCUMSTANCES, IN INCOME TAX OFFICER, WARD-3, PATHANKOT VS. M/S . T.K. PAPER MILLS, CHACK SAKTA, KATHUA, H.O.:- PATHANKOT, IN ITA NO. 106(A SR)/2014, FOR A.Y. 2010- 11, VIDE ORDER DATED 05.08.2014. 10. FOR THE ABOVE DISCUSSION, THE GROUNDS TAKEN BY THE DEPARTMENT ARE FOUND TO BE SHORN OF MERIT, AND ARE, HENCE, REJECTED. 11. THEREFORE, FINDING NO ERROR, WHATSOEVER THEREIN , THE LEARNED CIT(A)S ORDER UNDER APPEAL IS UPHELD. 12. IN THE RESULT, THE APPEAL FIELD BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 . 07. 2015. SD/- SD/- (PRAMOD KUMAR) ( A.D. JAIN) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 03.07.2015 /PK/ 5. ITA NO.769/ASR/ 2014 ASST. YEAR.2009- 10 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. VINOD KUMAR JAIN, PROP. M/S. V.K.METAL WORKS, PHASE 2 ND , SIDCO, INDL. BARI BRAHMANA, JAMMU. 2. THE INCOME TAX OFFICER, WARD-1(2) JAMMU. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSA