The Dy. Commissioner of Income-tax, Jammu v. M/s. Shiva Steel Rolling Mills,, Kathua

ITA 412/ASR/2011 | misc
Pronouncement Date: 13-12-2011 | Result: Dismissed

Appeal Details

RSA Number 41220914 RSA 2011
Assessee PAN ABGFS8493Q
Bench Amritsar
Appeal Number ITA 412/ASR/2011
Duration Of Justice 5 month(s) 5 day(s)
Appellant The Dy. Commissioner of Income-tax, Jammu
Respondent M/s. Shiva Steel Rolling Mills,, Kathua
Appeal Type Income Tax Appeal
Pronouncement Date 13-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 13-12-2011
Date Of Final Hearing 13-12-2011
Next Hearing Date 13-12-2011
Assessment Year misc
Appeal Filed On 08-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.L. KARWA HONBLE VICE PRESIDENT AND SH. D.K. SRIVASTAVA ACCOUNTANT MEMBER I.T.A. NO. 271(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. SHIV SHAKTI METAL S WARD 1(3) JAMMU. BARI BRAHMANA JAMMU. PAN:ABGFS8493Q (APPELLANT) (RESPONDENT) I.T.A. NO. 272(ASR)/2011 ASSESSMENT YEAR:2007-08 THE INCOME TAX OFFICER VS. M/S. SUN COMPONENTS WARD 1(3) JAMMU. SAMBA JAMMU. PAN:ABBFS3692J (APPELLANT) (RESPONDENT) I.T.A. NOS. 273 & 274(ASR)/2011 ASSESSMENT YEAR:2007-08 & 2008-09 THE INCOME TAX OFFICER VS. M/S. VARDHMAN ALLOYS WARD 1(3) JAMMU. GANGYAL JAMMU. PAN:AAFV3699M (APPELLANT) (RESPONDENT) I.T.A. NOS. 275 & 276(ASR)/2011 ASSESSMENT YEAR:2007-08 & 2008-09 THE INCOME TAX OFFICER VS. M/S. VIJAY STEEL INDUS TRIES 2 WARD 1(3) JAMMU. JAMMU. PAN:AAFFV2839P (APPELLANT) (RESPONDENT) I.T.A. NO. 277(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. SHIVA CONTAINERS WARD 1(3) JAMMU. GANGYAL JAMMU. PAN:ABDFS8980K (APPELLANT) (RESPONDENT) I.T.A. NO. 278(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. VIPUL GULATI WARD 1(3) JAMMU. JAMMU. PAN:AJKPG5177H (APPELLANT) (RESPONDENT) I.T.A. NO. 279(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. SHREE VAISHNO DEV I METALS PVT. WARD 1(3) JAMMU. LTD. JAMMU. PAN:AABCV8857A (APPELLANT) (RESPONDENT) I.T.A. NO. 280(ASR)/2011 ASSESSMENT YEAR:2007-08 THE INCOME TAX OFFICER VS. M/S. SHREE BALAJI UDYO G WARD 1(3) JAMMU. JAMMU. PAN:AABFU6419N (APPELLANT) (RESPONDENT) 3 I.T.A. NO. 281(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. SWASTIK INDUSTRIE S KATHUA KATHUA. PAN:AAZFS7492R (APPELLANT) (RESPONDENT) I.T.A. NO. 282(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. BHAGWATI METAL WO RKS KATHUA KATHUA. PAN:AAGFB0925K (APPELLANT) (RESPONDENT) I.T.A. NO. 283(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. JAIN BRASS INDUST RIES WARD 1(1) JAMMU. JAMMU. PAN:AAEFJ5468M (APPELLANT) (RESPONDENT) I.T.A. NOS. 284 & 285(ASR)/2011 ASSESSMENT YEAR:2004-05 & 2005-06 THE INCOME TAX OFFICER VS.SH. ASHOK KUMAR ABROL ( HUF) WARD 1(1) JAMMU. JAMMU. PAN:AACHA8053R (APPELLANT) (RESPONDENT) I.T.A. NO. 286(ASR)/2011 ASSESSMENT YEAR:2008-09 4 THE INCOME TAX OFFICER VS. M/S AMAR NATH INDUSTRI ES KATHUA KATHUA. PAN:AALFA2995D (APPELLANT) (RESPONDENT) I.T.A. NO.287(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. M/S. BALAJI ROSIN IND USTRIES WARD 1(1) JAMMU. JAMMU. PAN:AAFFB9385C (APPELLANT) (RESPONDENT) I.T.A. NOS.288 & 289 (ASR)/2011 ASSESSMENT YEAR : 2007-08 & 2008-09 THE INCOME TAX OFFICER VS. M/S. J. K. ORGANICS WARD 1(1) JAMMU. JAMMU. PAN:AAEFJ3892R (APPELLANT) (RESPONDENT) I.T.A. NO.290(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. M/S. JHELUM INDUSTRIE S WARD 1(1) JAMMU. SAMBA JAMMU. PAN:AAEFJ9788L (APPELLANT) (RESPONDENT) I.T.A. NO.291(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. M/S. FOIL PACK INDUST RIES WARD 1(1) JAMMU. JAMMU. PAN:AABFF6782H (APPELLANT) (RESPONDENT) 5 I.T.A. NO.292(ASR)/2011 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER VS. M/S. AAR BEE INDUSTRI ES WARD 1(1) JAMMU. JAMMU. PAN:AAJFA5228P (APPELLANT) (RESPONDENT) I.T.A. NO.293(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. M/S. J.S.B. ALUMINIUM WARD 1(1) JAMMU. SAMBA JAMMU. PAN:AAFFJ4424J (APPELLANT) (RESPONDENT) I.T.A. NO.294(ASR)/2011 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER VS. SH. ASHOK KUMAR (HUF) WARD 1(1) JAMMU. JAMMU. PAN:AACHA8053R (APPELLANT) (RESPONDENT) I.T.A. NO.394(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. M/S. KESHAV AGRO MILL S WARD 1(2) JAMMU. JAMMU. PAN:AAGFK3632C (APPELLANT) (RESPONDENT) 6 I.T.A. NO.395(ASR)/2011 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER VS. M/S. BHARAT UDYOG WARD 1 PATHANKOT. KATHUA. PAN:AAHFB2895H (APPELLANT) (RESPONDENT) I.T.A. NO.407(ASR)/2011 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER VS. M/S. WULLAR CEMENT PV T. LTD. WARD 1(3) JAMMU. JAMMU. PAN:AAAFW6873D (APPELLANT) (RESPONDENT) I.T.A. NO.408(ASR)/2011 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER VS. SH.. VINOD KUMAR JAIN . WARD 1(3) JAMMU. PROP. M/S. V.K. METAL WORK S JAMMU. PAN:AAAFPJ5872Q (APPELLANT) (RESPONDENT) I.T.A. NO.409(ASR)/2011 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER VS. M/S. S.D. WIRES & CAB LES. WARD 1(3) JAMMU. JAMMU. PAN:AAZFS6120N (APPELLANT) (RESPONDENT) I.T.A. NO.410(ASR)/2011 ASSESSMENT YEAR : 2008-09 7 THE INCOME TAX OFFICER VS. M/S.SHIVA MINT INDUST RIES . WARD 1(3) JAMMU. JAMMU. PAN:ABBFS4825M (APPELLANT) (RESPONDENT) I.T.A. NO.411(ASR)/2011 ASSESSMENT YEAR : 2007-08 D.C.I.T VS. M/S. JAI DURGA CEMENTS PVT. LTD. CIR.1 JAMMU. JAMMU. PAN:AABCJ6112E (APPELLANT) (RESPONDENT) I.T.A. NO.412(ASR)/2011 ASSESSMENT YEAR : 2006-07 D.C.I.T. VS. M/S. SHIVA STEEL ROLLING MILLS CIR.1 JAMMU. JAMMU. PAN:AAQFS1282C (APPELLANT) (RESPONDENT) I.T.A. NO.413(ASR)/2011 ASSESSMENT YEAR : 2008-09 D.C.I.T. VS. SH. MAHESH CHAND GOYAL PROP. CIR. 1 JAMMU. M/S. VMI INDUSTRIES JAMMU . PAN:AAEPG4460C (APPELLANT) (RESPONDENT) I.T.A. NO.414(ASR)/2011 ASSESSMENT YEAR : 2007-08 D.C.I.T. VS. M/S. KASHMIR WIRES CIR. 1 JAMMU. JAMMU. PAN:AAHFK5280F (APPELLANT) (RESPONDENT) 8 I.T.A. NO. 421(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S. SIDHI VINAYAK ALL OYS INDUSTRIES KATHUA KATHUA. PAN:ABBFS1745A (APPELLANT) (RESPONDENT) ITA NO. 422(ASR)/2011 ASSESSMENT YEAR:2006-07 THE INCOME TAX OFFICER VS. M/S. GURU KIRPA PLASTI C INDU. KATHUA KATHUA. PAN:AAEFG4737C (APPELLANT) (RESPONDENT) I.T.A. NO. 423(ASR)/2011 ASSESSMENT YEAR:2008-09 THE INCOME TAX OFFICER VS. M/S G.TECH INDUSTRIES KATHUA KATHUA. PAN:AAGFG2339E (APPELLANT) (RESPONDENT) APPELLANTS BY: TARSEM LAL DR RESPONDENT BY: NONE DATE OF HEARING :13.12.2011 DATE OF PRONOUNCEMENT:13.12.2011 ORDER 9 PER BENCH: THESE THIRTY SEVEN APPEALS FILED BY THE REVENUE I NVOLVING COMMON ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GROUNDS OF APPEALS ARE AS UNDER:- 1 ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN ALLOWING RELIEF ON ACCOUNT OF DEDUCTION U/ S 80IB ON CENTRAL EXCISE DUTY REFUND BY RELYING UPON ORDERS OF HON'BL E HIGH COURT IF J&K JAMMU WHICH HAS BEEN DELIVERED NOT ON MERITS O F THE ISSUE BUT HOLDING THE RECEIPT TO BE A CAPITAL RECEIPT ONLY BE CAUSE THE POLICY UNDER WHICH THE SAME WAS PAID ENVISAGED TACKLING TH E 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. C IT(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 REVE NUE 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. C IT(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 RE CEIPTS IS A TRADING RECEIPT OR A CAPITAL RECEIPT. 4. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN FACTS AND CIRCUMSTANCES AND IN LAW IN NOT APPRECIATING AND APPLIED THE PURPOSE TEST AS LAID DOWN BY THE JUDGME NTS 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 10 BE SPENT IN A PARTICULAR MANNER FOR PURPOSE OF SUBS TANTIAL EXPANSION OF THE INDUSTRY. 5. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 3. BRIEFLY THE GROUNDS NO. 1 TO 5 REVOLVE AROUND T HE 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 ALL OWABLE TO THE ASSESSEE. THE AO HAS NOT ALLOWED THE CLAIM OF THE ASSESSEE AN D 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. 4. ON APPEAL THE LD. CIT(A) FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHREE BALA JI ALLOWS V. CIT AND ANOTHER (2011) 333 ITR 335 (J&K) HELD THAT THE EXCI SE DUTY REFUND IS TO BE TREATED AS CAPITAL RECEIPT AND NOT LIABLE TO BE T AXED. NOW THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDER OF TH E LD. CIT(A). 5. WE HAVE HEARD SH. TARSEM LAL THE LD. DR AT LEN GTH. WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HON'BLE JURISDICTION AL HIGH COURT IN THE CASE OF SHREE BALAJI ALLOWS V. CIT AND ANOTHER (2011) 33 3 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 INTERES T SUBSIDY RECEIVED BY THE APPELLANTS-ASSESSEES IN PURSUANCE OF THE INCENTIVES ANNOUNCED AND SANCTIONED VIDE GOVERNMENT OF INDIA MINISTRY OF 11 COMMERCE AND INDUSTRY (DEPARTMENT OF INDUSTRIAL POL ICY AND PROMOTION)S OFFICE MEMORANDUM NO. 1(13)2000-NER D ATED 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 T HE STATE OF JAMMU AND KASHMIR IS A CAPITAL RECEIPT AND THUS NOT LI ABLE TO TAX UNDER THE PROVISIONS OF THE ACT OR REVENUE RECEIPT AS OPINE D BY THE AUTHORITIES UNDER THE ACT? (2) WHETHER THE APPELLANTS-ASSESSEES ARE ENTITLED T O DEDUCTION UNDER SECTION 80IB OF THE ACT ON THE EXCISE DUTY RE FUND AND INTEREST SUBSIDY ETC. BEING THE INCOME DERIVED FROM THE IND USTRIAL UNDERTAKING IN CASE THE EXCISE REFUND AND INTEREST SUBSIDY WERE FOUND TO BE REVENUE RECEIPT. 6. THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR WHIL E DECIDING THE MATTER HAS DISCUSSED THE SALIENT FEATURES OF THE NE W INDUSTRIAL POLICY AMENDMENTS INTRODUCED THERETO AND STATUTORY NOTIFIC ATION ETC. THE HON'BLE HIGH COURT FURTHER DISCUSSED THE DECISION OF HON'B LE 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 1 4 2002 INDICATING NEW INDUSTRIAL POLICY AND OTHER CONCESSI ONS FOR THE STATE OF JAMMU AND KASHMIR MAKES IT EXPLICIT THAT THE CONCE SSIONS WERE ISSUED TO ACHIEVE TWIN OBJECTS VIZ. (I) ACCELERATIO N OF INDUSTRIAL DEVELOPMENT IN THE STATE OF JAMMU AND KASHMIR WHIC H 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 VI DE NOTIFICATION OF NOVEMBER 28 2003 OF THE GOVERNMENT OF INDIA MINISTRY OF COMMERCE AND INDUSTRY (DEPARTMENT OF IN DUSTRIAL POLICY 12 AND PROMOTION) ELOQUENTLY DEMONSTRATES THE CENTRAL GOVERENMENTS INTENTION IN EXTENDING THE INCENTIVES. THE GOVERNM ENTS OBJECTIVE AS CONVEYED BY THE HONBLE PRIME MINISTER A SRINAGAR O N 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 NOT IFICATIONS THAT THE EXEMPTIONS CONTAINED IN THE NOTIFICATIONS WOULD BE AVAILABLE ONLY ON PRODUCTION OF CERTIFICATE FROM GENERAL MANAGER OF T HE CONCERNED DISTRICT INDUSTRIES CENTRE TO THE JURISDICTIONAL DE PUTY COMMISSIONER OF CENTRAL EXCISE OR THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE AS THE CASE MAY BE TO THE EFFECT THAT THE UNIT HAD CR EATED REQUIRED ADDITIONAL REGULAR EMPLOYMENT WHICH WOULD NOT HOW EVER INCLUDE EMPLOYMENT PROVIDED BY THE INDUSTRIAL UNITS TO DAIL Y 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 I N THE CENTRAL EXCISE NOTIFICATION NOS. 56 AND 57 OF NOVEMBER 11 2002 THUS MAKES IT AMPLY CLEAR THAT THE ACCELERATION OF DEVEL OPMENT 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 CASUA L 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 I NDUSTRIAL UNITS AND SUBSTANTIAL EXPANSION OF THE EXISTING UNITS WAS TH E GENERATION OF EMPLOYMENT THROUGH ACCELERATION OF INDUSTRIAL DEVEL OPMENT TO DEAL WITH THE SOCIAL PROBLEM OF UNEMPLOYMENT IN THE STAT E ADDITIONALLY CREATING OPPORTUNITIES FOR SELF-EMPLOYMENT HENCE A PURPOSE IN PUBLIC INTEREST. 31 IN THIS VIEW OF THE MATTER THE INCENTIVES PROVI DED TO THE INDUSTRIAL UNITS IN TERMS OF THE NEW INDUSTRIAL PO LICY FOR ACCELERATED INDUSTRIAL DEVELOPMENT IN THE STATE FOR CREATION O F SUCH INDUSTRIAL ATMOSPHERE AND ENVIRONMENT WHICH WOULD PROVIDE ADD ITIONAL PERMANENT SOURCE OF EMPLOYMENT TO THE UNEMPLOYED IN HE STATE OF JAMMU AND KASHMIR WERE IN FACT IN THE NATURE OF C REATION OF NEW ASSETS OF INDUSTRIAL ATMOSPHERE AND ENVIRONMENT H AVING THE POTENTIAL 13 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 OPERATIONA L 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 ACCELERATIO N OF THE INDUSTRIAL DEVELOPMENT AND REMOVING BACKWARDNESS OF THE AREA THAT LAGGED BEHIND IN INDUSTRIAL DEVELOPMENT WHICH IS C ERTAINLY A PURPOSE IN THE PUBLIC INTEREST THE INCENTIVES PROVIDED BY THE OFFICE MEMORANDUM AND STATUTORY NOTIFICATIONS ISSUED IN TH IS BEHALF TO THE APPELLANTS-ASSESSEES CANNOT BE CONSTRUED AS MERE P RODUCTION AND TRADE INCENTIVES AS HELD BY THE TRIBUNAL. 33. MAKING OF ADDITIONAL PROVISION IN THE SCHEME TH AT INCENTIVES WOULD BECOME AVAILABLE TO THE INDUSTRIAL UNITS ENT ITLED THERETO FROM THE DATE OF COMMENCEMENT OF THE COMMERCIAL PRODUCTI ON AND THAT THESE WERE NOT REQUIRED FOR CREATION OF NEW ASSETS CANNOT BE VIEWED IN ISOLATION TO TREAT THE INCENTIVES AS PRODUCTION IN CENTIVES AS HELD BY THE TRIBUNAL FOR THE MEASURE SO TAKEN APPEARS TO HAVE BEEN INTENDED TO ENSURE THAT THE INCENTIVES WERE MADE AVAILABLE O NLY 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 T RIBUNAL IN DETERMINE THE INCENTIVES AS PRODUCTION INCENTIVES M AY NOT BE DECISIVE TO DETERMINING THE CHARACTER OF THE INCENTIVE SUBSI DIES WHEN IT IS FOUND AS DEMONSTRATED IN THE OFFICE MEMORANDUM AM ENDMENT INTRODUCED THERETO AND THE STATUTORY NOTIFICATION T OO THAT THE INCENTIVES WERE PROVIDED WITH THE OBJECT OF CREATING AVENUES F OR PERPETUAL EMPLOYMENT TO ERADICATE THE SOCIAL PROBLEM OF UNEM PLOYMENT IN THE STATE BY ACCELERATED INDUSTRIAL DEVELOPMENT. 7. THE HON'BLE JURISDICTIONAL HIGH COURT CONCLUDED AS UNDER:- 35 FOR ALL WHAT HAS BEEN SAID ABOVE THE FINDING O F THE TRIBUNAL ON THE FIRST ISSUE THAT THE EXCISE DUTY REFUND INTERE ST SUBSIDY AND INSURANCE SUBSIDY WERE PRODUCTION INCENTIVES HENCE REVENUE RECEIPT CANNOT BE SUSTAINED BEING AGAINST THE LAW LAID DOW N BY THE HON'BLE 14 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 INCE NTIVES 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 T HE ALTERNATIVE. 8. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'B LE JURISDICTIONAL HIGH COURT WE CONFIRM THE ORDERS OF THE LD. CIT(A) IN HOLDING THAT THE EXCISE DUTY REFUND IS TO BE TREATED AS CAPITAL REC EIPT IN THE HANDS OF THE ASSESSEE AND NOT LIABLE TO BE TAXED. 9. IN THE RESULT ALL THE THIRTY SEVEN APPEALS FILE D BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DECEMBER 2011. SD/- SD/- (D.K.SRIVASTAVA) (H.L. KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED: 13TH DECEMBER 2011 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. ALL THE ASSESSEES: 2. THE ITO WARD 3. THE CIT(A) 4. THE CIT 5. THE SR DR TRUE COPY 15 BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.