2016 (10) TMI 811 - HC - Income Tax

Deduction u/s 80IB - ascertaining first year of commencement of production - Held that - The first sale bill was issued after 01.04.2006. The initial assessment year 2007-2008 is mentioned in form 10CCB of the assessee s audit report and no objection had ever been raised in respect thereof. In that form, the date and year of commencement of operation was mentioned as 07.05.2006 which was accepted by the revenue. In fact, in the previous assessment year, the work had been shown as being in progress. Further, still even the power consumption bills for the six months period ending 16.03.2006 showed that only five units had been consumed. Based thereon, the Tribunal s inference that there was no production activity till 31.03.2006 cannot be faulted. The excise returns submitted by the assessee for the year ending 31.03.2006 are of nil quantity manufactured and it was the excise returns for the month of May, 2006 that for the first time indicated the production - Decided against the revenue.

Summary

Issues:
1. Deduction claimed under Section 80IB of the Income Tax Act, 1961.
2. Treatment of excise duty refund as a capital receipt not liable to tax.
3. Determination of the first year of commencement of production.

Analysis:

Issue 1: Deduction claimed under Section 80IB
The appellant contended that the excise duty refund received should not be liable to tax under the Income Tax Act, 1961. The Tribunal's decision was based on the judgment of the Supreme Court in a related case, which went against the appellant. The Court upheld the Tribunal's decision, dismissing the appeal.

Issue 2: Treatment of excise duty refund
The main contention was whether the excise duty refund received by the assessee constituted a capital receipt not liable to tax. The Tribunal's decision was based on various documents and facts, including the date of commencement of production, sale bills, audit reports, power consumption bills, and excise returns. The Tribunal found that production had not commenced until after 01.04.2006, as evidenced by the first sale bill issued after that date. The Tribunal's decision was fact-based and not considered arbitrary or perverse.

Issue 3: Determination of commencement of production
The Assessing Officer relied on a certificate from the District Industries Centre, Jammu, stating the date of commencement of production as 02.03.2006. However, the Tribunal found this certificate inconclusive and considered other evidence, such as sale bills and excise returns, to determine that production actually commenced after 01.04.2006. The Tribunal's decision was supported by various factual findings and documents, leading to the dismissal of the appeal.

In conclusion, the High Court upheld the Tribunal's decision, dismissing the appeal regarding the deduction claimed under Section 80IB, the treatment of excise duty refund, and the determination of the commencement of production. The Court found the Tribunal's decisions to be based on factual evidence and not arbitrary, leading to the dismissal of the appeal.