M/s. Samdari Steels & Alloys Pvt. Ltd., JODHPUR V. DCIT, JODHPUR

ITA 95/JODH/2013

• Counselvise Citation: 9523314 RSA 2013
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI G.C. GUPTA, H O NBLE VICE PRESIDENT SHRI R.C. SHARMA , HONBLE ACCOUNTANT MEMBER ITA NO. 95 / JODH / 20 1 3 [A.Y. 2007 - 08 ] M/S SAMDARI STEEL & ALLOYS P. LTD VS. THE DY .C.I.T E - 370(A), MIA, BASNI 2 ND PHASE CENTRAL CIRCLE - 1 JODHPUR JODH PUR PAN NO : A AACS 5814 R (APPELLANT) (RESPONDENT) A SSESSEE B Y : SHRI AMIT KOTHARI DEPARTMENT B Y : SHRI S.L. MOURYA DATE OF H EARING : 01 . 0 9 .201 5 DATE OF PRONOU NCEMENT : 04 . 0 9 . 201 5 ORDER PER R.C. SHARMA, AM: - THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), UDAIPUR DATED 1 3 . 09 .201 1 FOR A.Y. 2007 - 08 IN THE MATTER OF ORDER PASSED U/S 1 43 ( 3 ) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRE D TO AS THE ACT, FOR SHORT]. THE CASE OF 2 THE ASSESSEE IS BARRED BY LIMITATION, FOR WHICH A CONDONATION PETITION HAS BEEN FILED. 2. IN THE SAID PETITION, THE LD. A.R. HAS RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND AC QUISITION VS MST. KATIJI & OTHERS (167 ITR 471) AND ITAT DECISION IN THE CASE OF M/S DERBY TEXTILES LTD IN ITA NO. 257/JU/2004 FOR A.Y. 1997 - 98 WHERE DELAY OF 278 DAYS WAS CONDONED AND PRAYED THAT A LENIENT VIEW MAY BE TAKEN AND APPEAL MAY BE ADMITTED FOR THE CAUSE OF SUBSTANTIAL JUSTICE. THE CONTENTION OF THE LD. DR IS THAT THE ASSESSEE IS BOUND TO EXPLAIN EACH DAYS DELAY WITH COGENT PROOF. 3. WE HAVE COGITATED THE RIVAL CONTENTIONS. THE HON'BLE SUPREME COURT HAS LONG BACK LAID DOWN A PERFECT GUIDEL INE WHILE DECIDING THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI & OTHERS (167 ITR 471), IN THEIR PITH AND SUBSTANCE, THAT WHEN SUBSTANTIAL JUSTICE IS PITTED AGAINST PEDANTIC REASONS, THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. RECENTLY, TH E HON'BLE SUPREME COURT HAS REITERATED THE SAME PRINCIPLE WHILE DECIDING THE CASE OF IMPROVEMENT TRUST VS UJAGAR SINGH (2010) 6SCC 786 (S.C) [SOURCE WWW.ITATONLINE.ORG ] BY OBSERVING THAT JUSTICE CAN BE 3 DONE ONLY W HEN THE MATTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPOSE IT OFF ON SUCH TECHNICALITIES AND THAT TOO AT THE VERY THRESHOLD. IT WAS STRONGLY LAID THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE FACE OF IT DELAY SHOULD BE CONDONED. IN THIS CASE, NO SUCH MALAFIDE IS EXHIBITED. THE DELAY STANDS REASONABLY EXPLAINED. HENCE, BY FOLLOWING THE DICTUM OF THE ABOVE DECISIONS, WE CONDONE THIS DELAY AND ADMIT THE APPEAL. 4. ON MERITS, THE LD. A.R. HAS AGITATED THE LD. CIT(A)S ORDER IN NOT AC CEPTING THE ASSESSEES CLAIM THAT SALES TAX INCENTIVE RECEIVED WAS A CAPITAL RECEIPT NOT LIABLE TO TAX. HE SUBMITTED THAT AN IDENTICAL ISSUE WAS DECIDED BY THE ITAT JODHPUR BENCH ON 17.1.2013 IN THE CASE OF M/S ANNAPURNA INDUSTRIES IN ITA NOS. 159, 160 & 161/JODH/2012 WHEREIN THE MATTER HAS BEEN RESTORED TO THE FILE OF THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FOUND THAT THIS BENCH IN THE CASE OF M/S ANNAPURNA INDUSTRIES [SUPRA] HAS DECIDED AS UNDER: 4 IN VIEW OF THE ABOVE DECISIONS, PARTICULARLY THAT OF THE SPECIAL BENCH RENDERED IN THE CASE OF DCIT VS. RELIANCE INDIA LTD REPORTED IN [2004] 88 ITD 273 [MUM] [SB], WE HAVE TO DECIDE THAT THIS SALES - TAX INCENTIVE IS CAPITAL IN NATURE. BUT THE QUESTION WHICH REMAINS IS IF THE ASSESSEE IS CLAIMING THIS BENEFIT TWICE AND IF THE PROVISION OF SECTION 43B, AS AMENDED, WOULD HAVE ANY IMPACT ON THE DECISION MAKING OF THIS ISSUE. THIS ISSUE REMAINS TO BE EXAMINED IN ITS CORRECT PERSPECTIVE. THEREFORE , WE HAVE TO RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION THAT HE SHALL DECIDE TH E SAME AFRESH AS PER LAW. WE ALLOW THIS GROUND OF APPEAL FOR STATISTICAL PURPOSES ONLY. 6. AS THE FACTS AND CIRCUMSTANCES ARE PARA MATERIA SIMILAR, R ESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL, WE RESTORE THIS GROUND BACK TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION THAT HE SHALL DECIDE THE SAME AFRESH AS PER LAW. 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 95/JODH/2013 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRON OUNCED IN THE COURT ON - 0 9 - 201 5 . S D / - SD/ - (G.C. GUPTA) (R.C. SHARMA) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 04 TH SEPTEMBER , 2015 . VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE C IT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR