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TMI Blog2012 (12) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 3. Notice of hearing was issued to all the assessees by RPAD for 27.06.2012, despite the fact, neither th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest subsidy etc., being the income derived from the industrial undertaking, in case the excise refund and interest subsidy were found to be revenue receipt. 7. 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 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 Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute is covered by the decision of Hon'ble ITAT, Amritsar Bench in the case of M/s. Sun Pharmaceuticals, in ITA No.184(Asr)/2009 for the assessment year 2005-06 dated 11.06.2010. 10.1 After hearing the ld. DR and perusing the order of the Ld. CIT(A) on the issue in dispute, we are of the considered view that the ld. first appellate authority has passed a well reasoned order based on facts and materials available on record, which requires no interference at our level. The Ld. first appellate authority while adjudicating the issue in dispute has also followed the decision of the ITAT, Amritsar Bench, in the case of M/s. Sun Pharmaceuticals ITA No.184(Asr)2009 for the assessment year 2005-06 dated 11.06.2010. Thus, in view of the above discussions and well reasoned findings given by the ld. CIT(A), we do not find any justification to interfere with the same. Accordingly, this ground of the Revenue is also dismissed. 11. In ITA No.161(ASr)/2012, the last ground raised by the revenue reads as under: "Regarding addition on account of late deposit of EPF u/s 36 of the Income Tax Act, 1961. "1. On the facts and circumstances whether the Ld. CIT(A) was right in allowing relief on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aceuticals ITA No.184(Asr)2009 for the assessment year 2005-06 dated 11.06.2010, Thus, in view of the above discussions and well reasoned findings given by the ld. CIT(A), we do not find any justification to interfere with the same. Accordingly, this ground of the Revenue is also dismissed. 14. In ITA No.155(Asr)/2012, the Revenue has raised one more ground which is as under: "Regarding disallowance u/s 40(a)(ia) of the Income Tax Act, 1961. "1. On the facts and circumstances whether the ld. CIT(A) was right in allowing relief on account of deduction u/s 80IB on disallowance of Rs.5204/- made u/s 40(a)(ia) as the assessee has contravened the provisions of the Income Tax Act, in view of the decision of the Jurisdictional Bench in the case of M/s. Kashmir Tubes reported in ITA No.145(Asr)/2005 dated 07.12.2007 where such disallowances were upheld by the Hon'ble ITAT, Amritsar." 14.1. As regards disallowance made u/s 40(a)(ia) of the Income-tax Act, 1961, we are of the view that the issue in dispute is covered by the decision of Hon'ble ITAT, Amritsar Bench in the case of M/s. Sun Pharmaceuticals, in ITA No.184(Asr)/2009 for the assessment year 2005-06 dated 11.06.2010. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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