The Income Tax Officer, Jammu V. Sh. Amit Gupta, Jammu

ITA 89/ASR/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76932 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 12-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• 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. 89(ASR)/2014 ASSESSMENT YEAR: 2008-09 PAN: ABAPG0175D INCOME TAX OFFICER, VS. SH. AMIT GUPTA, PROP. WARD-1(1), JAMMU M/S VIRAJ INDUSTRIES, BARI BRAHMANA, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: SH. P.N. ARORA, ADVOCATE DATE OF HEARING: 29.04.2014 DATE OF PRONOUNCEMENT: 29.04.2014 ORDER PER BENCH THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF CIT(A), JAMMU, DATED 25.11.2013 FOR THE ASSESSME NT YEAR 2008-09 ON THE FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING THE ADDITION MADE ON ACCOUNT OF D ISALLOWANCE OF DEDUCTION U/S 80IB ON EXCISE DUTY REFUND & INTEREST SUBSIDY BY RELYING UPON ORDERS OF HON'BLE HIGH COURT J&K, JAM MU WHICH HAS BEEN DELIVERED NOT ON MERITS OF THE ISSUE BUT HOLDI NG THE RECEIPT TO BE 2 I.T.A. NO. 89(ASR)/2014 ASSESSMENT YEAR: 2008-09 A CAPITAL RECEIPT ONLY BECAUSE THE POLICY UNDER WHI CH THE SAME WAS PAID ENVISAGED TACKLING THE UNEMPLOYMENT IN THE STA TE WHICH CANNOT BE SAID TO BE A GOOD TEST FOR DECIDING WHETHER A RE CEIPT 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 OF CENTRAL EXCISE & I NTEREST SUBSIDY WAS NOT SUPPOSED TO BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBSTANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND DECIDED IN FAVOUR OF T HE ASSESSEE BY THE HON'BLE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMI R IN THE CASE OF SHREE 3 I.T.A. NO. 89(ASR)/2014 ASSESSMENT YEAR: 2008-09 BALAJI ALLOYS V. CIT AND ANOTHER REPORTED IN (2011) 333 ITR 335 (J&K.). AS SUCH, HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 3. ON THE CONTRARY, LEARNED DR RELIED UPON THE OR DER PASSED BY THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE INVOLVED IN GROUNDS OF THE APPEAL OF REVENUE RELAT ING TO DEDUCTION UNDER SECTION 80IB OF THE INCOME-TAX ACT, 1961 ON EXCISE DUTY REFUND IS SQUARELY COVERED BY THE JUDGMENT OF HON'BLE JURISDICTIONAL H IGH COURT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS V. CIT AND ANOTHER REPORTED IN (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 THE PRESENT APPEAL FILED BY TH E REVENUE. ACCORDINGLY, ALL THE GROUNDS OF REVENUES APPEAL AR E DISMISSED. 4 I.T.A. NO. 89(ASR)/2014 ASSESSMENT YEAR: 2008-09 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH APRIL, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. AMIT GUPTA, PROP. M/S VIRAJ IND USTRIES, BARI BRAHMANA, JAMMU 2. ITO, WARD-1(1), 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: AMRITSAR.