Vinod Kumar Jain v. ITO - Taxpublishers.in

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The Tax Publishers2013 TaxPub(DT) 0487 (Asr-Trib) : (2013) 051 (II) ITCL 0002 : (2013) 140 ITD 0001 : (2013) 152 TTJ 0445 : (2013) 083 DTR 0258 : (2013) 022 ITR (Trib) 0567 INCOME TAX ACT, 1961 --Income --Capital or revenue receipt Refund of excise duty--Assessee had received excise duty refund and claimed deduction for same under section 80-IB. assessing officer after detailed discussion rejected the claim of assessee. Assessee also, contended that receipt of excise duty refund should be considered as capital receipt. *Held:* Rightly so as following the decision in the case of Shree Balaji Alloys v. CIT (2011) 333 ITR 335 (J&K) it was concluded that refund of excise duty was to be reacted as capital receipt in the hands of assessee. Income Tax Act, 1961 Section 4 In the ITAT, Amritsar (Special Bench) H. L. Karwa, T. R. Sood, A.M. & B. P. Jain, A.M. Vinod Kumar Jain v. ITO I.T. Appeal Nos. 65 & 68 (Asr.) of 2010 A.Y. 2006-07 26 October, 2012 Appellant by : Salil Kapoor and C.S. Anand Respondent by : Tarsem Lai ORDER IT A No.65(Asr.)/2010 1. The Honble President of the Tribunal has referred the following questions for consideration of the Special Bench vide order dated 26-4-2010. '(i) Whether in the facts and circumstances of the case, the excise duty refund set off is a capital receipt or revenue receipt. '(ii) If the excise duty refund/set off is held to be revenue receipt, whether the said amount is to be included in the business profits for the purpose of deduction under section 80-IB of the Income Tax Act.' 2. The learned counsel of the assessee, Sh. Salil Kapoor, filed a chart and pointed out that originally in assessment year 2005-06, the assessee had claimed deduction under section 80-IB of the Income Tax Act, 1961 (In short, the Act) on the refund of excise duty, which was not allowed by the assessing officer By the time, the matter travelled to the Tribunal an additional ground was raised stating that refund of excise duty should be treated as capital receipt. Though the additional ground was admitted but the whole matter was decided against the assessee and the matter travelled before the Honble Jammu & Kashmir High Court and the same was decided in favour of the assessee in the case of Shree Balaji Alloys v. CIT (2011) 333 ITR 335 (J&K) : 2011 TaxPub(DT) 882 (J&K-HC). By reference to various documents, he showed that the assessees appeal was also tagged in this bunch of appeals vide ITA No.24 of 2010 by the High Court. Therefore, even assessees case was decided in favour of the assessee. He further pointed out that in assessment years 2007-08 & 2008-09, the Tribunal following the order of the Honble Jammu & Kashmir High Court, in the case of Shree Balaji Alloys (supra) dismissed the Revenues appeal on this issue in ITA No.233 (Asr.)/2011 & in ITA No. 408(Asr.)/2011 dated 9-12-2011 & 13-12-2011 respectively (copies of both the orders have been filed at pages 112 to 138 of the PB). He also pointed out that Revenue moved a Miscellaneous Application before the Honble J & K High Court, against the orders in case of Shree Balaji Alloys (supra) (where assessee was also a party) which was also dismissed by the Honble Court vide order dated 4-4-2012 (copy of which is filed at pages 102 to 111 of the paper book). The learned Counsel of the assessee further argued that the issue is identical to the issue decided by the Honble J & K High Court and even Special Bench of the Tribunal is bound by the decision of the Honble Jurisdictional High Court of J & K He also clarified that since assessees industrial unit is situated in Jammu and he is also being assessed to tax at Jammu, therefore, the decision of the Honble Jammu & Kashmir High Court, has to be treated as Jurisdictional High Court decision. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2013 TaxPub(DT) 0487 (Asr-Trib) : (2013) 051 (II) ITCL 0002 : (2013) 140 ITD 0001 : (2013) 152 TTJ 0445 : (2013) 083 DTR 0258 : (2013) 022 ITR (Trib) 0567

INCOME TAX ACT, 1961

--Income --Capital or revenue receipt Refund of excise duty--Assessee had received excise duty refund and claimed deduction for same under section 80-IB. assessing officer after detailed discussion rejected the claim of assessee. Assessee also, contended that receipt of excise duty refund should be considered as capital receipt. Held: Rightly so as following the decision in the case of Shree Balaji Alloys v. CIT (2011) 333 ITR 335 (J&K) it was concluded that refund of excise duty was to be reacted as capital receipt in the hands of assessee.

Income Tax Act, 1961 Section 4

In the ITAT, Amritsar (Special Bench)

H. L. Karwa, T. R. Sood, A.M. & B. P. Jain, A.M.

Vinod Kumar Jain v. ITO

I.T. Appeal Nos. 65 & 68 (Asr.) of 2010

A.Y. 2006-07

26 October, 2012

Appellant by : Salil Kapoor and C.S. Anand

Respondent by : Tarsem Lai

ORDER

IT A No.65(Asr.)/2010

1. The Honble President of the Tribunal has referred the following questions for consideration of the Special Bench vide order dated 26-4-2010.

'(i) Whether in the facts and circumstances of the case, the excise duty refund set off is a capital receipt or revenue receipt.

'(ii) If the excise duty refund/set off is held to be revenue receipt, whether the said amount is to be included in the business profits for the purpose of deduction under section 80-IB of the Income Tax Act.'

2. The learned counsel of the assessee, Sh. Salil Kapoor, filed a chart and pointed out that originally in assessment year 2005-06, the assessee had claimed deduction under section 80-IB of the Income Tax Act, 1961 (In short, the Act) on the refund of excise duty, which was not allowed by the assessing officer By the time, the matter travelled to the Tribunal an additional ground was raised stating that refund of excise duty should be treated as capital receipt. Though the additional ground was admitted but the whole matter was decided against the assessee and the matter travelled before the Honble Jammu & Kashmir High Court and the same was decided in favour of the assessee in the case of Shree Balaji Alloys v. CIT (2011) 333 ITR 335 (J&K) : 2011 TaxPub(DT) 882 (J&K-HC). By reference to various documents, he showed that the assessees appeal was also tagged in this bunch of appeals vide ITA No.24 of 2010 by the High Court. Therefore, even assessees case was decided in favour of the assessee. He further pointed out that in assessment years 2007-08 & 2008-09, the Tribunal following the order of the Honble Jammu & Kashmir High Court, in the case of Shree Balaji Alloys (supra) dismissed the Revenues appeal on this issue in ITA No.233 (Asr.)/2011 & in ITA No. 408(Asr.)/2011 dated 9-12-2011 & 13-12-2011 respectively (copies of both the orders have been filed at pages 112 to 138 of the PB). He also pointed out that Revenue moved a Miscellaneous Application before the Honble J & K High Court, against the orders in case of Shree Balaji Alloys (supra) (where assessee was also a party) which was also dismissed by the Honble Court vide order dated 4-4-2012 (copy of which is filed at pages 102 to 111 of the paper book). The learned Counsel of the assessee further argued that the issue is identical to the issue decided by the Honble J & K High Court and even Special Bench of the Tribunal is bound by the decision of the Honble Jurisdictional High Court of J & K He also clarified that since assessees industrial unit is situated in Jammu and he is also being assessed to tax at Jammu, therefore, the decision of the Honble Jammu & Kashmir High Court, has to be treated as Jurisdictional High Court decision.