Gujarat State Electricity Corporation Ltd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

ITA 1249/AHD/2012

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0984 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.1249/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) GUJARAT STATE ELECTRICITY CORPORATION LTD. SARDAR PATEL VIDYUT BHAVAN BARODA / VS. THE DY.CIT CIRCLE-1(1) BARODA ./ ./ PAN/GIR NO. : AAACG 6864 F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.K. PATEL, AR / RESPONDENT BY : SHRI SUBHAS BAINS, CIT-DR / DATE OF HEARING 12/03/2019 !'# / DATE OF PRONOUNCEMENT 25/03/2019 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, BARODA [CIT(A) IN SHORT] DATED 11/04/2012 PASSED FOR ASSESSMENT YEAR (AY) 2 008-09. 2. THE ASSESSEE HAS TAKEN FOUR GROUNDS OF APPEAL, BUT ITS GRIEVANCES REVOLVE AROUND A SINGLE ISSUE; NAMELY, LD.CIT(A) HA S ERRED IN ITA NO. 1249/AH D/2012 GUJARAT STATE ELECTRICITY CORPN. LTD. VS. DCIT ASST.YEAR 2008-09 - 2 - CONFIRMING THE TOTAL VALUE OF FRINGE BENEFITS AT RS .3,69,20,698/- AS AGAINST NIL DECLARED BY THE ASSESSEE. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED ITS RETURN OF INCOME ELECTRONICALLY ALONG WITH FRINGE BENEFITS RE TURN ON 30/09/2008. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT. THE LD.AO HAD ISSUED A NOTICE U/S.115WE(2) R.W.S.115WG OF THE INCOME TAX ACT, 1961 ON 21/10/2011 WHICH WAS SERVED UPON T HE ASSESSEE. IN RESPONSE TO THE NOTICE, IT WAS CONTENDED BY THE ASS ESSEE THAT GUJARAT CHAMBER OF COMMERCE AND INDUSTRIES & OTHERS HAVE FILED A WRIT PETITION BEFORE THE HONBLE GUJARAT HIGH COURT CHAL LENGING THE VALIDITY OF CBDT CIRCULAR NO.8 DATED 29/08/2005 SEEKING TO I NTERPRET THE PROVISIONS OF FRINGE BENEFIT AS PROVIDING FOR LEVY OF FRINGE BENEFIT, EVEN IN RESPECT OF EXPENDITURE INCURRED FOR NON-EMPLOYEE S OR FOR THE BUSINESS OF THE EMPLOYER ITSELF. THE ASSESSING OFFICER AFT ER CONSIDERING THE EXPLANATION OF THE ASSESSEE HAS OBSERVED THAT ON VE RIFICATION OF THE BOOKS OF ACCOUNTS ON TEST CHECK BASIS THE TAXABLE FRINGE BENEFIT IS WORKED OUT AT RS.3,69,20,698/-. 4. APPEAL TO THE LD.CIT(A), DID NOT BRING ANY RELI EF TO THE ASSESSEE. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES FROM THE RECORD THAT IDENTICAL ITA NO. 1249/AH D/2012 GUJARAT STATE ELECTRICITY CORPN. LTD. VS. DCIT ASST.YEAR 2008-09 - 3 - ISSUE WAS EXAMINED IN THE CASE OF GUJARAT URJA VIKA S NIGAM LTD. AS WELL AS IN THE CASE OF ASSESSEE ITSELF FOR AY 2009-10. IN THE CASE OF ASSESSEE IN ITA NO.2666/AHD/2013, THE TRIBUNAL HAS RECORDED THE FOLLOWING FINDING: 8. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND G ONE THROUGH THE RECORD CAREFULLY. IN THE CASE OF GUJARAT URJA VIKAS NIGAM LTD., FOR THE ASSTT.YEAR 2008-09, THE TRIBUNAL HAS MADE THE FOLLOWING OBSERV ATIONS: ITA NO.2666/AHD/2013 'ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A)-I, BARODA DATED 11.4.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF APPEAL, IN BRIEF ITS GRIEVANCE IS THAT THE ID.CIT(A) HAS ERRED IN CONFIRMING THE ASSE SSMENT OF TOTAL VALUE OF FRINGE BENEFIT AT RS.39,48,479/- AS AGAINST NIL BENEFIT OF FERED BY THE ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME AND FRINGE BENEFIT ON 20.9.2008. IT HAS SHOWN VALUE OF FRINGE AT NIL. IN THE TAX AUDIT REPORT OBTAINED BY THE ASSESSEE UNDER SECTION 44AB OF THE INCOME TAX ACT, THE AUDITORS HAVE REPORTED VALUE OF FRINGE BENEFIT AT RS.39,48,479/-. THE AO HAS REOPENED THE ASSESSMENT FOR REOPENING THE VALUE OF FRINGE BENEFI T AND CONFRONTED THE ASSESSEE AS TO WHY VALUE OF FRINGE BENEFIT REPORTED BY THE AUDITOR S SHOULD NOT BE ADDED FOR THE PURPOSE OF LEVYING FRINGE BENEFIT TAX. IN RESPONSE TO THE QUERY OF THE AO, IT WAS CONTENDED THAT A WRIT PETITION HAS BEEN FILED BY TH E GUJARAT CHAMBER OF COMMERCE & INDUSTRY BEFORE THE HON'BLE GUJARAT HIGH COURT CHAL LENGING VALIDITY OF CBDT CIRCULAR NO.8 DATED 29.8.2005 SEEKING TO INTERPRET PROVISIONS OF FBT AS PROVIDED FOR LEVY OF FBT. THE ID.AO HAS EXAMINED CONTENTION OF T HE ASSESSEE AND OBSERVED THAT THERE ARE THREE CATEGORIES OF ASSESSEE UPON WHOM FB T IS TO BE LEVIED. ACCORDING TO THE AO, HON'BLE GUJARAT HIGH COURT HAS GRANTED INTE RIM-RELIEF QUA CATEGORY NOS. AND 2. THESE CATEGORIES ARE - (A) IN THE FIRST CATEGORY ASSESSEES ARE COVERED UNDER THE PROVISION OF FBT, (B) UNDER THE SECOND CATEGORY, IT WAS IN DISPUTE WHETHER THEY ARE GOVERNED PARTIALLY BY THE FBT, AND (C) THOSE ASSESS EES WHERE FBT WAS SOUGHT TO BE LEVIED BY THE GOVERNMENT DESPITE THE FACT THAT EMPL OYER WAS NOT MAKING ANY PAYMENT TO ANY EMPLOYEES OR NOT INCURRING ANY EXPENDITURE F OR ANY EMPLOYEES SO AS TO ATTRACT FBT. ACCORDING TO THE AO UNDER CATEGORY NO.2 AND 3 INTERIM DIRECTION OF THE HON'BLE HIGH COURT IS THERE, WHEREAS THE CASE OF ASSESSEE F ALLS IN THE CATEGORY NO.1 I.E. ITA NO. 1249/AH D/2012 GUJARAT STATE ELECTRICITY CORPN. LTD. VS. DCIT ASST.YEAR 2008-09 - 4 - PROVISIONS OF FRINGE BENEFIT TAX ARE APPLICABLE ON THE TRANSACTION OF THE ASSESSEE. ACCORDINGLY, THE LD.AO MADE ADDITION OF RS.39,48,47 9/- TOWARDS TOTAL VALUE OF FRINGE BENEFIT. APPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. THE ID.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT AN IDENTICAL ISSUE AROSE IN THE ASSTT.YEAR 2009-10 AND THE TRIBUNAL HA S CONFIRMED THE ADDITION IN ITANO.2665/AHD/2013. HE CONCEDED THAT ISSUE IS TO B E DECIDED AGAINST THE ASSESSEE. ITANO.2666/AHD/20L3 CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE AND THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEAR 2009-10, I AM OF THE VIEW THAT APPEAL OF THE ASSESSEE IS DEVOID OF ANY MERIT, AND HENCE IT IS DI SMISSED.' 9. THERE IS NO DISPARITY ON FACTS IN THE CASE OF TH E ASSESSEE IN THE PRESENT ASSESSMENT YEAR. THE LD.CIT(A) HAS ALSO RELIED UPON THE ORDER OF THE TRIBUNAL IN THE CASE OF GUJARAT URJA VIKAS NIGAM LTD. FOR TH E ASSTT.YEAR 2009-10, WHICH HAS BEEN FOLLOWED BY THE TRIBUNAL IN ITA NO.1389/AH D/2012. CONSIDERING ALL THESE ASPECTS, WE DO NOT FIND ANY MERIT IN THIS APP EAL. IT IS DISMISSED. 6. THE LD.COUNSEL FOR THE ASSESSEE WAS UNABLE TO CO NTROVERT THE ABOVE VIEW TAKEN IN ASSESSEES OWN CASE FOR AY 2009 -10. RESPECTFULLY FOLLOWING THE ABOVE ORDER AND FINDING NO DISPARITY ON FACTS, WE DO NOT FIND ANY MERIT IN THIS APPEAL OF THE ASSESSEE AND I T IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 25 TH MARC H - 2019 AT AHMEDABAD. SD/- SD/- ( PRADIP KUMAR KEDIA) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 03 /2019 &.., .(../ T.C. NAIR, SR. PS