The Jt.CIT.,(OSD), Circle-4, Ahmedabad V. Gujarat Paguthan Energy Corpn. Ltd., Ahmedabad

ITA 1292/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85694 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ITA NO . 1 292 /AHD/20 1 1 A. Y. 200 7 - 0 8 JCIT (OSD), CIRCLE - 4, AHMEDABAD. VS GUJARAT PAGUTHAN ENERGY CORPORAT ION PVT. LTD., 6 TH FLOOR, CHANKYA BUILDING, OFF. ASHRAM ROAD, AHMEDABAD. PAN: AAACG 7999P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SUBHASH BAINS, SR. D.R. ASSESSEE(S) BY : SHRI S.N. SOPARKAR , A.R. / DATE OF HEARING : 10 / 0 2 /201 5 / DATE OF PRONOUNCEMENT: 13 / 0 2 /201 5 / O R D E R PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN A PPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF THE L EAR NED CIT (A) - V III , AHMEDABAD , DATED 17 . 0 1 .20 11 . THE REVENUE HAS RAISED THE FOLLOWING GROUND S : 1. THE ID. CIT(A) VIII, AHMEDABAD HAS ERRED I N LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS. 1,50,19,410 / - MADE BY THE A.O. ON ACCOUNT OF ' MISCELLANEOUS EXP ENSES WRITTEN OFF' WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT O N RECORD BY THE ASSESSING OFFICER. 2 THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO EXCLUDE NET INTEREST IN C OME FOR COM PUTATION OF DEDUCTION U/S.80IA, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIALS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 3 THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.17,03,03,000 / - MADE BY T HE ASSESSING OFFICER U/S.40A(IA) WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIALS BROUGHT ON RECORD BY THE ASSESSING OFFICER. ITA NO. 1 292 /AHD/201 1 JCIT(OSD), CIRCLE - 4, AHMEDABAD VS. GUJARAT PAGUTHAN ENERGY CORPORATION LTD. FOR A.Y. 200 7 - 0 8 - 2 - 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT LEARNED CIT(A) HAS FOLLOWED THE PAST HISTORY OF THE CASE AND TH EREAFTER MENTIONING THE VIEW TAKEN IN A.Y.2006 - 07 BY HIS PREDECESSOR IN ASSESSEE S OWN CASE HAVE DELETED THE ADDITION. THE CURRENT FACTUAL POSITION IS THAT FOR THE ASSESSMENT YEAR 2006 - 07 ITAT A BENCH AHMEDABAD IN ASSESSEE S OWN CASE BEARING ITA NO.1031/ AHD/2010 AND CO NO.124/AHD/2010 VIDE AN ORDER DATED 20 TH SEPTEMBER, 2013 HAS DECIDED ALL THESE ISSUES EITHER IN FAVOUR OF THE ASSESSEE OR RESTORE D BACK TO THE FILE OF THE AO. WE FIND NO REASON TO DEVIATE FROM THE VIEW ALREADY TAKEN BY THE RESPECTED CO - ORDINA TE BENCH; HENCE DECIDE THESE GROUNDS AS UNDER. 3. APROPOS TO GROUND NO.1, THE MATTER OF WRITE OFF MISCELLANEOUS EXPENSES IS RESTORED BACK TO THE FILE OF THE AO BY THE TRIBUNAL VIDE PARAGRAPH 12 FOLLOWING THE DECISION TAKEN IN A.Y. 2005 - 06 ON IDENTICAL FAC TS VIDE AN ANOTHER ORDER OF THE TRIBUNAL IN THE PAST. RESULTANTLY , THIS GROUND OF THE REVENUE BEING RESTORED BACK TO THE FILE OF THE AO MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. 4. APROPOS TO GROUND NO.2 WHICH IS IN RESPECT OF DEDUCTION FOR THE PURPOSE OF CLAIM OF DEDUCTION U/S.80IA THE VIEW STOOD COVERED BY THE DECISIONS OF THE TRIBUNAL FOR A.Y.2005 - 06 AND 2006 - 07 AS CITED SUPRA IN FAVOUR OF THE ASSESSEE ; HENCE THIS GROUND OF THE REVENUE IS HEREBY DISMISSED. 5. APROPOS TO GROUND NO.3 PERTAI NING TO DISALLOWANCE U/S.40(A)(IA) WE HAVE BEEN INFORMED THAT THE SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE IN A.Y.2006 - 07 BY ITAT A BENCH AHMEDABAD (SUPRA) WHEREIN IT WAS HELD AS UNDER: ITA NO. 1 292 /AHD/201 1 JCIT(OSD), CIRCLE - 4, AHMEDABAD VS. GUJARAT PAGUTHAN ENERGY CORPORATION LTD. FOR A.Y. 200 7 - 0 8 - 3 - 21. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ENTIRE SALES OF THE ASSESSEE IS TO GUVNL AND THE PAYMENTS RECEIVED BY THE ASSESSEE FROM IT ARE TOWARDS SALES FROM THE CUSTOMER. NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE REBATE GIVEN IS NOT IN THE NATURE OF DISCOUNT BUT IS IN THE NATURE OF INTEREST. WE FURTHER FIND THAT CIT(A) WHILE DELETING THE ADDITION HAS NOTED THAT THE SINCE THE REBATE IS IN THE NATURE OF DISCOUNT NO TDS U/S . 194A IS DEDUCTIBLE ON THE SAME. BEFORE US, THE LD. D.R. COULD NOT CONTROVERT THE FINDING OF CIT(A) BY BRINGING ANY CONTRARY MATERIAL ON RECORD. IN VIEW OF THESE FACTS , WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THIS GROUND OF REVENUE IS DISMISSED. 5.1 FURTHER, WE HAVE ALSO N OTED THAT LEARNED CIT(A) HAS FOLLOWED A DECISION OF ITAT AHMEDABAD PRONOUNCED IN THE CASE OF SD PHARMACY LTD., 31 SOT 386 WHEREIN IT WAS HELD THAT THE TRADE DISCOUNT IS NOT REQUIRED TO BE CONSIDERED FOR THE PURPOSE OF THE INVOCATION OF THE PROVISIONS OF SECTION 194H OF IT ACT. IN V IEW OF ABOVE, WE HEREBY DISMISS THIS GROUND OF THE REVENUE. 6. IN THE RESULT, REVENUE S APPEAL IS PARTLY ALLOWED. SD/ - SD/ - (ANIL CHATURVEDI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED / 0 2 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD