The Dy. Commissioner of Income-tax, Jammu V. M/s. Singla Cables Industries, Jammu

ITA 9/ASR/2012

• Counselvise Citation: 920914 RSA 2012
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2012
• 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. 09(ASR)/2012 ASSESSMENT YEAR:2005-06 PAN:AATFS5159F DY. COMMR. OF INCOME-TAX, VS. M/S. SINGLA CABLES I NDUSTRIES, CIRCLE-1, JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARSEM LAL, DR RESPONDENT BY:NONE DATE OF HEARING :21/05/2012 DATE OF PRONOUNCEMENT:21/05/2012 ORDER PER BENCH: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF THE CIT(A), JAMMU, DATED 21.10.2011 RELATING TO ASSESSMENT YEAR 2005- 06. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS UNDER: 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING PENALTY U/S 2711)(C) ON ACCOUNT O F DISALLOWANCE OF DEDUCTION U/S 80IB ON EXCISE DUTY REFUND, INTEREST SUBSIDY AND INSURANCE SUBSIDY BY RELYING UPON ORDERS OF HON'BLE HIGH COURT IF J&K, JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS O F THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BE CAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACKLING TH E UNEMPLOYMENT 2 IN THE STATE WHICH CANNOT BE SAID TO BE A GOOD TEST FOR DECIDING WHETHER A RECEIPT 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 IN AS MUCH AS IN THAT CASE PAYMENTS WERE MADE ONLY AFTER THE INDUSTRIES HAD BEEN SET UP AND PAYMENTS WERE NOT MADE FOR PURPOSE 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. 3. THE ABOVE APPEAL WAS FIXED FOR HEARING ON 21ST M AY, 2012. AT THE TIME OF HEARING, NOBODY APPEARED ON BEHALF OF THE A SSESSEE. NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY REGISTERED AD P OST ON 26.04.2012 ON THE ADDRESS GIVEN IN FROM 36, COL.10. THE HAS NOT E VEN FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRC UMSTANCES OF THE ISSUE IN DISPUTE, WE FIND THAT THERE IS NO NEED TO ISSUE NOT ICE TO THE ASSESSEE TIME AND 3 GAIN AS NO USEFUL PURPOSE WILL BE SERVED AND ACCORD INGLY WE PROCEED THE DECIDE THE ISSUE IN DISPUTE ON MERITS. 4. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER. 5. AFTER HEARING THE LD. DR AND GOING THROUGH THE RECORDS, WE ARE OF THE CONSIDERED VIEW THAT IT IS AN ADMITTED FACT THAT TH E HONBLE HIGH COURT OF JAMMU & KASHMIR VIDE ITS ORDER DATED 31.10.2011 IN THE CASE OF M/S. BALAJI ALLOYS AND OTHERS HAVE HELD THAT REFUND OF EXCISE DUTY IS A CAPITAL RECEIPT NOT BEING TAXABLE. THUS, WHEN THE QUANTUM ADDITION HAS ALREADY BEEN DELETED BY THE HONBLE HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF M/S. BALAJI ALLOYS & OTHERS (SUPRA), THE PENALTY IN DISPUTE, ON THE BASIS OF SAME ADDITION, CANNOT STAND. THEREFORE, WE ARE OF THE VI EW THAT THE PENALTY IN DISPUTE DOES NOT SURVIVE AND THE LD. FIRST APPELLA TE AUTHORITY HAS PASSED A WELL REASONED ORDER, WHICH NEEDS NO INTERFERENCE. H ENCE, THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST MAY, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21ST MAY, 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:M/S. SINGLA CABLES INDUSTRIES, JAMMU.