In the absence of any revised return under the IT Act, no claim of the assessee could be considered by way of a simple letter

IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH ‘E’ NEW DLEHI

BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
AND
SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER
 
ITA No. 3931/Del/2018
Assessment Year: 2013-14

Modern Papers, B-95, 
Wazirpur Industrial Area,
Delhi.
PAN : AAFQM2930H
(Appellant) 

vs. 

Income-tax Officer,
 Ward 34(3), New Delhi
(Respondent)

 Appellant by : Sh. S.S. Nagar, C.A.
 Respondent by: Sh. Sohail Malik, Sr. DR

 Date of hearing: 31/03/2021
 Date of order : 18/06/2021

ORDER

PER K. NARASIMHA CHARY, J.M.

Aggrieved by the order dated 19.03.2018 passed by the learned Commissioner of Income Tax (Appeals)-12, New Delhi ("Ld. CIT(A)") for the assessment year 2013-14, Modern Papers (“the assessee”) filed this appeal.

2. Brief facts of the case are that the assessee is engaged in the business of Agro Chemicals and set up a manufacturing unit in the State of Jammu & Kashmir, which is notified area, entitling the assessee all the benefits of Excise Duty Refund in accordance with the Excise Notification Nos. 56 & 57 of 2002 dated 14.11.2002 issued by the Central Excise Department and in accordance with the schemes/Policies of the Government of India, Ministry of Commerce and Industries. During the financial year 2012-13 relevant to assessment year 2013-14, the assessee received an excise subsidy amounting to Rs.14,55,88,357/-. The assessee filed their return of income for the assessment year 2013-14 on 30.11.2013 declaring the taxable income of Rs.10,08,580/- where under the assessee had offered the excise subsidy of Rs.14,55,88,357/- also. Subsequently, in view of the decisions of Hon’ble Supreme Court in the case of Poni Sugars & Chemicals Ltd. (2008) 306 ITR 392 (SC) and Shree Balaji Alloys vs. CIT, 287 CTR 459, the Excise Subsidy has to be characterized as capital receipt under the “New Industrial Policy and Other Concessions Scheme” dated 14.06.2002 in the State of Jammu & Kashmir and therefore, during the course of assessment proceedings, the assessee filed a letter dated 01.02.2016 and made certain submissions in that respect on 28.11.2016, praying for the admission of the claim of assessee to treat the Excise Refund as Capital Receipts and non-taxable.

3. The Assessing Officer, however, recorded that in view of the provisions of section 139(5) of the Income-tax Act (“the Act”), in the absence of any revised return, no claim of assessee could be considered by way of a simple letter. The Assessing Officer then relied on the decision of Hon’ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, 284 ITR 323 (SC). Assessing Officer accordingly refused to consider the claim of assessee to treat the Excise Subsidy as capital receipt instead of Revenue Receipts though the assessee offered the same to tax under the mistaken impression. 

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