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TMI Blog2014 (1) TMI 1766X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case and in law, the Ld. CIT(Appeals) in Appeal No. 536/12-13, has erred in deleting the following additions:- 1 On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that excise duty refund was a capital receipts and was not to be included as income in the hands of the assessee. 2 On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating the fact that like in the case of Sahney Steel and Press Works Ltd., Vs. CIT 228 ITR 253 (SC), the assessee was free to use money received on account of excise duty refund in its business entirely as it liked. Thus, the same is liable to be taxed as revenue receipt. 3. It is prayed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd did not address the issue of whether the excise duty refund was derived from the manufacturing activities carried on by the assessee and in turn being eligible for deduction under section 80IB of the Act. The relevant findings of the Tribunal are vide paras 15 to 18 which are as under: "15. We have heard the rival contentions and perused the record. The issue raised vide ground No.3 by the assessee was in connection with the addition made by the authorities below on account of excise duty refund by holding that it had no nexus with the manufacturing activities carried on by the assessee and hence not eligible for deduction under section 80IB of the Act. The assessee has raised an alternate plea by way of additional ground of appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . & Others Vs. CIT [228 ITR 253(SC)] and CIT Vs. Ponni Sugars & Chemicals Ltd. [306 ITR 392 (SC)] and held that in context of the respective incentive schemes in the two cases, the subsidy in Sawhney Steel & Press Works Ltd. & Others (supra) was held to be revenue receipt whereas the subsidy in Ponni Sugars & Chemicals Ltd.(supra) was held to be capital receipt. Further support was taken from the later decision of the Hon'ble Supreme Court in M/s Mepco Industries Ltd., Madurai Vs. CIT & Another, 2009 (97) Supreme 564, wherein similar principle had been held and it has also been laid down that the nature of the subsidy in each of the cases was separate and distinguished. It was further held that "there is no straight jacket principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we allow additional ground of appeal No.1. raised by the assessee. 18. As we have held the said receipts to be capital in nature and hence outside the purview of tax, we are not addressing the issue raised vide ground No.3 by the assessee as to whether the said excise duty refund is derived from the manufacturing activities carried on by the assessee and hence eligible for deduction under section 80IB of the Act. Ground No.3 raised by the assessee is thus dismissed in limine." 5. The issue arising in the present appeal are identical to the issue before the Tribunal in earlier years and following the same parity of reasoning, we uphold the order of the CIT (Appeals) in holding that the excise duty refund was capital receipt in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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