TMI Blog2016 (3) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sake of convenience, congruence and brevity, we are disposing of them by this common order. First we shall take up ITA No. 398/Asr/2015. I.T.A. No 398(Asr)/2015 [A.Y 2012-13] The department has filed the present appeal against the order of the CIT(A), Jammu, dated 06.05.2015 for the assessment year 2012-13 on the following grounds: 1. That whether the commissioner of Income Tax (Apppeals), Jammu was right in law to allow deduction u/s 80IB of the Income Tax Act, 1961 on Central Excise Duty refund by relying upon the judgment of the Hon ble High Court of J K, in the case of M/s Shree Balaji Alloys Others ignoring the ratio of the law on the issue as laid down in the case of Ponni Sugar Sawhney Steel and Press Works Ltd. 2. Whether the Commissioner of Income Tax(Appeals), Jammu Committed an error in law as laid down by the Hon ble Supreme court in the case of Ponni Sugar Sawhney Steel and Press Works Ltd. wherein similar receipts were held to be revenue in nature as the same had been made after the industries had been set up and not for purpose of setting up of the industries. 3. Whether in law, the Commissioner of Income Tax (Appeals), Jammu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty refund, interest subsidy and insurance subsidy were production incentives, and hence, revenue receipts. 5. The Hon'ble Jurisdictional High Court held that while doing so, the Tribunal had remained oblivious of the fact that the observations in Sahney Steel and Press Works Ltd [supra] and Ponni Sugars and Chemicals Ltd [supra] were in the context of the schemes peculiar to those cases and those observations of the Hon'ble Supreme Court in those two cases were observations made and not law laid down as such. The Hon'ble Jurisdictional High Court observed that the Tribunal had not dealt with that part of the J K Scheme, whereby unemployment in the state had been intended to be eradicated, creating an atmosphere for accelerated industrial development, to create employment opportunities to deal with the social problem of unemployment in the state. The Hon'ble Jurisdictional High Court held that this was a lop-sided interpretation of the new industrial policy and concessions formulated by the Central Government for the State of Jammu and Kashmir vide Office Memorandum of June 14, 2002. It was observed that the clear legal position adumberated by the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only casual or temporary, but was of a permanent nature. It was held that 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, and hence, it was a purpose in the public sector. It was held that, therefore, the incentives provided to the industrial units in terms of the new industrial policy, of 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 the 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 a public purpose, cannot, by any stretch of reasoning, be construed as production or operational incentives for the benefit of the assessee alone. 7. It was fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdictional High Court in the case of Shree Balaji Alloys [supra] is directly applicable to and binding on us, the inferior Tribunal. Pendency of the said SLP notwithstanding, it is the decision of the Hon'ble Jurisdictional High Court, which, as of now, holds the field. It is, therefore, opined that to be in line with the prescribed judicial discipline, we need to and must follow Shree Balaji Alloys [supra] and this is what the ld. CIT(A) has, and in our considered opinion, correctly, done. Moreover no decision contrary to Shree Balaji Alloys [supra] has been successfully pleaded by the department before us, particularly in the face of the fact that not only the decisions in the cases of Sahney Steel and Press Works Ltd [supra] and Ponni Sugars and Chemicals Ltd [supra], but also that in the case of MEPCO [supra] has expressly been taken into consideration by the Hon'ble Jurisdictional High Court in the case of Shree Balaji Alloys [supra]. It does not lie in the mouth of the department to raise as a grievance, the ground of appeal to the effect that the ld. CIT(A) erred in following the decision in the case of Shree Balaji Alloys [supra] rendered by the Hon'ble Jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y following the decision of the Hon ble Jurisdictional High Court of Jammu Kashmir in the case of Shree Balaji Alloys v. CIT and Another (supra), reject the Grounds raised in the present appeal of the department, as the issue in dispute is squarely covered by the aforesaid decision of the Hon ble jurisdictional High Court. Accordingly, we dismiss the appeal filed by the department. 13. In the result, the appeal filed by the department in ITA No.398(Asr)/2015 is dismissed. 14. In all the other appeals, i.e., ITA 319 395(Asr)/2015, 472 473(Asr)/2015, 267(Asr)/2015, 396(Asr)/2015, 321(Asr)/2015, 296(Asr)/2015, 320(Asr)/2015 and 397(Asr)/2015, the facts and circumstances being exactly similar to those in the case of M/s Singla Cables, in ITA No.398(Asr)/2015 and, therefore, our findings in ITA No.398(Asr)/2015 will apply, mutatis mutandis, to these appeals also. Accordingly, all these appeals filed by the department stand dismissed. 15. In ITA nos.472 473(Asr)/2015, in the case of M/s. J.K. Petrochemicals, though the notice sent to the assessee has been received back undelivered, finding that the matter can be decided in the absence of the assessee, we have decided the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue. Therefore, in the circumstances and facts of the present case, Hon ble Jurisdictional Court of J K having held the Excise Duty Refund and Interest Subsidy received by the assessee as capital receipts is a decision subsequent to the decision of AO dated 17.12.2009 where such receipts have been accepted as revenue as returned by the assessee. Accordingly, in view of the decision in the case of Smt. Arun Luthra (supra) and Kil Kotagiri Tea and Coffee Estates Ltd. (supra), we are of the view that there is a mistake apparent from record which is rectifiable u/s 154 of the Act and the Ld. CIT(A) has rightly directed the AO to carry out the necessary rectification and the order of the Ld. CIT(A) is found to be well reasoned one and we find no infirmity in the same. 18.2. Therefore, respectfully following the order of the Tribunal dated 16.01.2015 (supra) in the assessee s own case, this ground of the revenue is dismissed. In the result, the appeal of the Revenue in ITA No.237(Asr)/2015 is dismissed. 19. As regards the C.Os raised by different assessees, bearing nos.23(Asr)/2015, 17(Asr)/2015 and 20 21(Asr)/2015, the same are supportive to the orders of the ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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