2014 (1) TMI 1022 - AT - Income Tax

Deduction u/s 80IB - Whether refund of excise duty be treated as income from manufacturing activity - Held that - Following CIT vs. Dharampal Premchand 2008 (11) TMI 49 - HIGH COURT DELHI - The excise duty refund in the case of the appellant is directly linked with the manufacturing activity and is production linked incentive, which arises out of manufacturing activity of Appellant s Industrial Undertaking at Jammu - Such excise duty refund is therefore, a first degree source of receipt linked with the manufacturing activity of the undertaking - It is derived from the business of the industrial undertaking and falls within the parameters laid down in Section 80IB of the IT Act - There is a distinction between the treatment to be given to Excise Duty Refund and Duty Draw Back/DEPB, the AO is directed to treat excise duty refund as profit derived from the business of the Industrial Undertaking, while computing the eligible deduction u/s. 80-IB of the Income Tax Act - The CIT(A) was justified in his order - Decided in favour of assessee.

Summary

Issues Involved:
1. Deduction of CENVAT credit as eligible profit under Section 80-IB.
2. Deduction of VAT Remission credit as eligible profit under Section 80-IB.
3. Treatment of CENVAT credit as Capital Subsidy.
4. Treatment of VAT Remission as Capital Subsidy.
5. Deletion of disallowance of Self CENVAT Credit availment.
6. Treatment of Excise Duty refund as a capital receipt and its taxability.

Issue-wise Detailed Analysis:

1. Deduction of CENVAT credit as eligible profit under Section 80-IB:
The lower authority disallowed the deduction of Rs. 2,04,42,410/- on account of CENVAT credit, arguing that it was not income derived from the industrial undertaking. The assessee contended that the refund of excise duty had a direct nexus with the manufacturing activity, citing the Delhi High Court decision in CIT vs. Dharampal Premchand, which held that excise duty refund is an income derived from industrial undertaking and eligible for relief under Section 80-IB. The Tribunal agreed with the assessee, noting that the excise duty refund is directly linked with manufacturing activity and thus eligible for deduction under Section 80-IB.

2. Deduction of VAT Remission credit as eligible profit under Section 80-IB:
The lower authority disallowed the deduction of Rs. 13,709.67 (incorrectly noted as Rs. 1,92,000/-) on account of VAT remission, similar to the CENVAT credit disallowance. The Tribunal's reasoning and conclusion were the same as for the CENVAT credit, affirming that the VAT remission is also directly linked to the manufacturing activity and thus eligible for deduction under Section 80-IB.

3. Treatment of CENVAT credit as Capital Subsidy:
The assessee argued that, without prejudice to the above, the amount of Rs. 2,04,42,410/- towards CENVAT credit should be treated as a capital subsidy. However, the Tribunal did not find it necessary to adjudicate this issue separately as it had already concluded that the CENVAT credit is eligible for deduction under Section 80-IB.

4. Treatment of VAT Remission as Capital Subsidy:
Similarly, the assessee argued that, without prejudice to the above, the amount of Rs. 13,790.67 towards VAT remission should be treated as a capital subsidy. The Tribunal did not address this issue separately, given its conclusion on the eligibility of VAT remission for deduction under Section 80-IB.

5. Deletion of disallowance of Self CENVAT Credit availment:
For the assessment years 2007-08 and 2008-09, the CIT(A) deleted the disallowance of Rs. 91,94,880/- and Rs. 1,16,78,452/- respectively on account of Self CENVAT Credit availment. The Tribunal upheld the CIT(A)'s decision, agreeing that the excise duty refund is a production-linked incentive directly connected to the manufacturing activity, thus eligible for deduction under Section 80-IB.

6. Treatment of Excise Duty refund as a capital receipt and its taxability:
The CIT(A) for the assessment years 2007-08 and 2008-09 held that the excise duty refund is a capital receipt and not liable to tax. The Tribunal noted that the excise duty refund is directly linked with the manufacturing activity and thus eligible for deduction under Section 80-IB. It did not separately adjudicate on whether the refund is a capital receipt, considering it an academic interest given its conclusion on the deduction eligibility.

Conclusion:
The Tribunal allowed the assessee's appeal for the assessment year 2006-07, affirming the eligibility of CENVAT credit and VAT remission for deduction under Section 80-IB. It dismissed the Revenue's appeals for the assessment years 2007-08 and 2008-09, upholding the CIT(A)'s decisions on the same grounds. The Tribunal's order was pronounced on 03/1/2014.