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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 ..... re common, in all the appeals, are reproduced, as under:- "1 On the facts and circumstances whether the Ld. CIT(A) was right in allowing relief on account of deduction u/s 80IB on Central Excise Duty refund by relying upon orders of Hon'ble High Court if J&K, Jammu which has been delivered not on merits of the issue but holding the receipt to be a capital receipt only because the policy under which the same was paid envisaged tackling the 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. CIT(A) was right in facts and circumstances and in law in not appreciating the judgments of Hon'ble Supreme Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order. 4. The facts of the cases narrated by the Revenue are not disputed by both the parties. Therefore, there is no need to repeat the same for the sake of convenience. 5. We have heard the Ld. DR, Sh. Amrik Chand, at length. We find that the issues in dispute are squarely covered in favour of the assessee and against the Revenue by the decision of the Hon'ble Jurisdictional High Court, in the case of Shree Balaji Alloys v. CIT and Another (2011) 333 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 interest subsidy received by the appellants-assessees, in pursuance of the incentives announced and sanctioned vide Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such development, and (ii) generation of employment in the State of Jammu & Kashmir. 27 Amendment introduced to the Office Memorandum vide notification of November 28, 2003 of the Government of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) eloquently demonstrates the Central Goverenment's intention in extending the incentives. The Government's objective, as conveyed by the Hon'ble Prime Minister a Srinagar on 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 notifications that the exemptions contained in the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial policy, for accelerated industrial development in the State, for creation of such industrial atmosphere and environment, which would provide additional permanent source of employment to the unemployed in he State of Jammu and Kashmir, were in fact, in the nature of creation of new assets of industrial atmosphere and environment, having the potential 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 operational 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 acceleration of the industrial development and removing bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdictional High Court concluded as under:- "35 For all what has been said above, the finding of the Tribunal on the first issue that the excise duty refund, interest subsidy and insurance subsidy were production incentives, hence revenue receipt, cannot be sustained, being against the law laid down by the Hon'ble 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 incentives 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 the alternative." 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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