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TMI Blog2012 (11) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... o achieve public purpose, cannot, by any stretch of reasoning, be construed as production or operational incentives for the benefit of assesses alone – Order of CIT(A) in holding that the Excise Duty refund is to be treated as ‘capital receipt’ in the hands of the assessee and not liable to be taxed is confirmed – appeal by revenue is dismissed. Decisions in in the case of Shree Balaji Alloys v. CIT and Another [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] followed. - I.T.A. No.138(As)/2012, 141(As)/2012, 152-158(As)/2012, 164(As)/2012, 167(As)/2012, 170(As)/2012, 175(As)/2012, - - - Dated:- 1-6-2012 - SH. H.S. SIDHU, AND SH. B.P.JAIN, JJ. Appellant By:Sh. Amrik Chand, DR ORDER PER BENCH: These ten appeals f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the decision in the case of Seaham Harbour Dock Company which lays down two important tests for determining whether receipts is a trading receipt or a capital receipt. 4. On the facts and circumstances whether the Ld. CIT(A) was right in facts and circumstances and in law in not appreciating and applied the purpose test as laid down by the judgments 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 be spent in a particular manner for purpose of substantial expansion of the industry. 5. The appellant craves to amend or add any one or more grounds of appeal. 3. The notices of hearing were sent to all the assessees for 25.05.2012 by RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue receipt, as opined by the authorities under the Act? (2) Whether the appellants-assessees are entitled to deduction under section 80IB of the Act on the excise duty refund and interest subsidy etc., being the income derived from the industrial 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 while deciding the matter has discussed the salient features of the new industrial policy, amendments introduced thereto and statutory notification etc. The Hon'ble High Court further discussed the decision of Hon'ble 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily 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 in the Central Excise Notification Nos. 56 and 57 of November 11, 2002, thus, makes it amply clear that the acceleration of development 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 casual 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 industrial units and substantial expansion of the existing units, was the ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the industrial units, entitled thereto, from the date of commencement of the commercial production, and that these were not required for creation of new assets cannot be viewed in isolation, to treat the incentives as production incentives, as held by the Tribunal, for the measure so taken, appears to have been intended to ensure that the incentives were made available only 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 Tribunal in determine the incentives as production incentives may not be decisive to determining the character of the incentive subsidies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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