Income Tax Appellate Tribunal - Amritsar
Asian Cements Industries,, Kathua vs Department Of Income Tax on 21 May, 2012
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.03(Asr)/2012
Assessment year:2005-06
PAN:AAFFA8525M
The Income Tax Officer, Vs. M/s. Asian Cement Industries,
Kathua. Kathua.
(Appellant) (Respondent)
I.T.A. No.01(Asr)/2012
Assessment year:2008-09
PAN:AADFC5400D
The Income Tax Officer, Vs. M/s. Celestial Polymers,
War 1(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:
These two appeals filed by the Revenue are directed against the separate orders of the CIT(A), Jammu, dated 21.10.2011 & 06.20.2011 for the assessment years 2005-06 & 2008-09 respectively. As the issues 2 ITA No.03(Asr)/2012 & ITA No.01(Asr)/2012 involved in both the appeals are common, these were heard together and are being disposed of by this consolidated order for the sake of convenience.
2. The Revenue has raised the following common grounds of appeal:
"1 On the facts and circumstances whether the Ld. CIT(A) was right in allowing relief on account of deduction u/s 80IB on Central Excise Duty refund by relying upon orders of Hon'ble High Court if J&K, Jammu which has been delivered not on merits of the issue but holding the receipt to be a capital receipt only because the policy under which the same was paid envisaged tackling the unemployment 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. CIT(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 revenue 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. CIT(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 receipts is a trading receipt or a capital receipt.
4. On the facts and circumstances whether the Ld. CIT(A) was right in facts and circumstances and in law in not appreciating and applied the purpose test as laid down by the judgments of the Hon'ble Supreme Court. In the case of assessee, the money received by the assessee on account of refund of Central Excise 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."3 ITA No.03(Asr)/2012 &
ITA No.01(Asr)/2012
3. At the time of hearing, neither the assessees nor their authorized representative appeared. Notice of hearing was sent to the assessees by Registered AD Post for today i.e. 21.05.2012. The assessees have not filed even any adjournment application. As the issue involved in the present appeals has already been decided in favour of the assessee by the Hon'ble J & K High Court, in the case of Shree Balaji Allows v. CIT and Another (2011) 333 ITR 335 (J&K), therefore, there is no need to issue notices to the assessees time and again and we proceed to the decide both the appeals.
4. Briefly stated, the grounds No. 1 to 5 revolve around the issue of Excise Duty refund which was claimed as exempt in view of Section 80IB of the Income-tax Act, 1961 (in short 'the Act') being allowable to the assessee. The AO has not allowed the claim of the assessee and held that the receipts on account of Excise Duty refund granted in view of Government Notification was not eligible to be considered for the purpose of deduction u/s 80IB of the Act.
5. On appeal, the Ld. CIT(A) following the decision of the Hon'ble Jurisdictional High Court in the case of Shree Balaji Allows v. CIT and Another (2011) 333 ITR 335 (J&K) held that the Excise Duty refund is to be treated as 'capital receipt' and not liable to be taxed. Now the Revenue is in appeal before this Tribunal against the order of the Ld. CIT(A).
6. The Ld. DR, relied upon the order of the Assessing Officer.
7. After hearing the ld. DR and perusing the material available on record, we find that the issue in dispute is squarely covered in favour of the assessee and against the Revenue by the decision of the Hon'ble Jurisdictional High Court in the case of Shree Balaji Alloys v. CIT and 4 ITA No.03(Asr)/2012 & ITA No.01(Asr)/2012 Another (2011) 333 ITR 335 (J&K). The issues before the Hon'ble Jurisdictional High Court for determination were as under:-
(1) Whether the amount of excise refund and interest subsidy received by the appellants-assessees, in pursuance of the incentives announced and sanctioned vide Government of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion)'s Office Memorandum No. 1(13)2000-NER dated June 14,2002 and Central Excise Notification Nos. 56 and 57, dated November 14, 2002 and other notification issued on the subject, pertaining to the industrial policy introduced in the State of Jammu and Kashmir, is a capital receipt and, thus, not liable to tax under the provisions of the Act, or revenue receipt, as opined by the authorities under the Act?
(2) Whether the appellants-assessees are entitled to deduction under section 80IB of the Act on the excise duty refund and interest subsidy etc., being the income derived from the industrial undertaking, in case the excise refund and interest subsidy were found to be revenue receipt.
8. The Hon'ble High Court of Jammu and Kashmir while deciding the matter has discussed the salient features of the new industrial policy, amendments introduced thereto and statutory notification etc. The Hon'ble High Court further discussed the decision of Hon'ble Supreme Court in the case of Sahney Steel and Press Works Ltd (1997) 228 ITR 253 (S.C) and observed as under:-
"26 A perusal of the Office Memorandum dated June 14, 2002 indicating new industrial policy and other concessions for the State of Jammu and Kashmir, makes it explicit that the concessions were 5 ITA No.03(Asr)/2012 & ITA No.01(Asr)/2012 issued to achieve twin objects viz. (i) acceleration of industrial development in the State of Jammu and Kashmir, which had been found lagging behind in such development, and (ii) generation of employment in the State of Jammu & Kashmir.
27 Amendment introduced to the Office Memorandum vide notification of November 28, 2003 of the Government of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) eloquently demonstrates the Central Goverenment's intention in extending the incentives. The Government's objective, as conveyed by the Hon'ble Prime Minister a Srinagar on April 19, 2003, was, for creation of one lakh employment and self-employment opportunities in Jammu and Kashmir State.
28 To achieve the purpose and objective referred to hereinabove, it was, inter alia, provided in the central excise notifications that the exemptions contained in the notifications would be available only on production of certificate from general manager of the concerned District Industries Centre to the jurisdictional Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, to the effect that the unit had created required additional regular employment, which would not, however, include employment provided by the industrial units to daily wagers or casual employees engaged in the units.
29 A close reading of the Office Memorandum and the amendment introduced thereto with paragraph No. 3 appearing in the Central Excise Notification Nos. 56 and 57 of November 11, 2002, thus, makes it amply clear that the acceleration of development of industries in the State was contemplated with the object of generation of employment in the State of Jammu and Kashmir and the generation of employment, so, contemplated, was not only casual or temporary; but was on the other hand, of permanent nature.
30 Considered thus, the paramount consideration of the Central Government in providing the incentives to the new industrial units and substantial expansion of the existing units, was the generation of employment through acceleration of industrial development, to deal with the social problem of unemployment in the State, additionally creating opportunities for self-employment, hence a purpose in public interest.6 ITA No.03(Asr)/2012 &
ITA No.01(Asr)/2012 31 In this view of the matter, the incentives provided to the industrial units, in terms of the new industrial policy, for accelerated industrial development in the State, for creation of such industrial atmosphere and environment, which would provide additional permanent source of employment to the unemployed in he State of Jammu and Kashmir, were in fact, in the nature of creation of new assets of industrial atmosphere and environment, having the potential of employment generation to achieve a social object. Such incentives, designed to achieve public purpose, cannot, by any stretch of reasoning, be construed as production or operational incentives for the benefit of assesses alone.
32 Thus, looking to the purpose, of eradication of the social problem of unemployment in the State by acceleration of the industrial development and removing backwardness of the area that lagged behind in industrial development, which is certainly a purpose in the public interest, the incentives provided by the office memorandum and statutory notifications issued in this behalf, to the appellants-assessees, cannot be construed as mere production and trade incentives, as held by the Tribunal.
33. Making of additional provision in the scheme that incentives would become available to the industrial units, entitled thereto, from the date of commencement of the commercial production, and that these were not required for creation of new assets cannot be viewed in isolation, to treat the incentives as production incentives, as held by the Tribunal, for the measure so taken, appears to have been intended to ensure that the incentives were made available only to the bona fide industrial units so that larger public interest of dealing with unemployment in the State, as intended, in terms of the Office Memorandum, was achieved.
34. The other factors, which had weighed with the Tribunal in determine the incentives as production incentives may not be decisive to determining the character of the incentive subsidies, when it is found, as demonstrated in the Office Memorandum, amendment introduced thereto and the statutory notification too that the incentives were provided with the object of creating avenues for perpetual employment, to eradicate the social problem of unemployment in the State by accelerated industrial development.
9. The Hon'ble Jurisdictional High Court concluded as under:-
7 ITA No.03(Asr)/2012 &ITA No.01(Asr)/2012 "35 For all what has been said above, the finding of the Tribunal on the first issue that the excise duty refund, interest subsidy and insurance subsidy were production incentives, hence revenue receipt, cannot be sustained, being against the law laid down by the Hon'ble Supreme Court of India in Sahney Steel Case (1997) 228 ITR 253 and Ponni Sugars case (2008) 306 ITR 392.
36 The finding of the Tribunal that the incentives were revenue receipt is, accordingly, set aside holding the incentives to the capital receipt in the hands of the assesses.
37 In view of our above finding on the first issue, there is no need to opine on the second issue, which was raised in the alternative."
10. Respectfully following the judgment of the Hon'ble Jurisdictional High Court, in the case of Shree Balaji Alloys v. CIT and Another (supra), we confirm the order of the Ld. CIT(A) in holding that the Excise Duty refund is to be treated as 'capital receipt' in the hands of the assessee and not liable to be taxed.
11. In the result, both the appeals filed by the Revenue are dismissed.
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 Assessees:i) M/s. Asian Cement Industries, Kathua (ii) M/s.
Celestial Polymers, Jammu.
2. The ITO Kathua/ ITO Ward 1(1), Jammu.
3. The CIT(A), Jammu
4. The CIT,Jammu
5. The SR DR, ITAT, Amritsar