Paschim Gujarat Vij Co.Ltd., Baroda V. The Addl.CIT.,Range-4, Baroda

ITA 1388/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1297 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Business expenditure
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM, & SHRI MANISH BORA D, AM. ITA NO.1388/AHD/2012 ASST. YEAR: 2009-10 PASCHIM GUJARAT VIJ CO. LTD. SARDAR PATEL VIDYUT BHAVAN, RACE COURSE CIRCLE, BARODA VS. ADDL.CIT, RANGE-4, BARODA. APPELLANT RESPONDENT PAN AADCP1453C APPELLANT BY SHRI M. K. PATEL, AR RESPONDENT BY SHRI PRASOON KABRA, SR.DR DATE OF HEARING: 24/6/2016 DATE OF PRONOUNCEMENT: 27/6/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ASSESSEE IS IN APPEAL AGAINST THE ORDER OF LD. CIT (A)-III, BARODA DATED 24.04.2012 IN APPEAL NO.CAB/III-212/11-12, PA SSED AGAINST ORDER U/S 115WE(3) OF THE IT ACT, 1961 (IN SHORT TH E ACT) FRAMED ON 8.12.2011 BY ADDL. CIT, RANGE-4, BARODA. ASSESSEE H AS RAISED FOLLOWING GROUNDS OF APPEAL :- 1.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE TOTAL VALUE OF FRINGE B ENEFITS AT RS.2,17,99,200/-ASSESSED BY THE ASSESSING OFFICER A S AGAINST THE RETURNED FRINGE BENEFITS OF RS.NIL OFFERED BY THE A PPELLANT. 2.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) ERRED IN LAW AND ON FACTS HAS DISMISSED THE GROUND RELATING TO THE C HARGING INTEREST ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 2 UNDER SECTION 115WJ OF THE INCOME TAX ACT, 1961 ON THE ASSESSED TAX LIABILITY. 3.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) ERRED IN LAW AND ON FACTS HAS DISMISSED THE RELATING TO THE INITIATI ON OF PENALTY PROCEEDINGS UNDER SECTION 271(L)(D) OF THE INCOME T AX ACT, 1961 FOR THE ALLEGED CONCEALMENT AND/OR FURNISHING OF INACCU RATE PARTICULARS OF INCOME. 4.0 THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER , DELETE OR MODIFY ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 2. BRIEFLY STATED FACTS OF THE CASE AS CULLED OUT F ROM THE RECORDS ARE THAT THE ASSESSEE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF DISTRIBUTION OF ELECTRICITY. DURING THE COURSE O F ASSESSMENT PROCEEDINGS U/S 115WE(3) OF THE ACT IT WAS OBSERVED BY LD. ASSESSING OFFICER THAT VALUE OF FRINGE BENEFIT TAX (FBT) UNDER CHAPTER XII-H OF THE ACT WAS SHOWN AT RS.NIL. HOWEV ER, IN THE TAX AUDIT REPORT U/S 44AB OF THE ACT, AUDITORS HAVE REP ORTED THE FBT VALUE AT RS.2,17,98,200/- AND FBT PAYABLE THEREON A T RS.74,09,208/- WHEN THE QUESTION WAS RAISED BY LD. ASSESSING OFFIC ER, THE REPLY OF ASSESSEE WAS AS UNDER :- 'IT IS SUBMITTED THAT KEEPING M VIEW THE FM'S BUDGET SPEEC H AND STATEMENT OF OBJECTS AND REASONS FOR INTRODUCTION OF FRINGE BENEFIT TAX (FBT ), SUCH ITEMS OF BUSINESS EXPENDITURE AS PRESCRIBED U/ S. / / 5WB (2): A.. WHICH HAVE BEEN INCURRED ONLY WITH RELATIO N TO NON-EMPLOYEES AND DO NOT RELATED IN ANY MANNER TO THE EMPLOYEES OF THE ASSESSEE: AND B. WHICH, THOUGH HAVING BEEN INCURRED THROUGH EMPLOYEES, BUT BEING PURELY FOR THE BUSINESS PURPOSES OF THE ASSESSEE AND THUS NOT RESU LTING IN ANY BENEFIT TO THE EMPLOYEES. - ARE CLEARLY BEYOND THE SCOPE AND LEVY OF FBT. THE SHOVE CONTENTION HAS BEEN FIRMLY RAISED IN THE WRIT PETITIONS FILED BY THE GUJARAT CHAMBER OF COMMERCE & INDUSTRY AND OTHERS BEFORE TH E HON 'BLE HIGH COURT OF GUJARAT, WHILE CHALLENGING THE VALIDITY OF THE CBDT CIRCULAR NO. 8, DATED 29- 8-2005 SEEKING TO INTERPRET THE PREVISIONS OF FBT AS PROVIDING FOR LE VY OF FBT, EVEN IN RESPECT OF EXPENDITURE INCURRED FOR NON-EMPLOYEES OR FOR THE B USINESS OF THE EMPLOYER ITSELF, WITHOUT CONFERRING ANY BENEFIT WHATSOEVER EN THE EM PLOYEES. THE HON 'BLE HIGH COURT ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 3 HAS BEEN PLEASED TO ADMIT THE AFORESAID WRIT PETITI ONS AND HAS ALSO GRANTED INTERIM RELIEF, WHICH HAS BEEN MADE APPLICABLE NOT ONLY TO THE PETITIONERS, BUT ALSO ALL SIMILARLY PLACED ASSESSEE WITHIN THE STATE OF GUJARAT. KEEPING IN VIEW THE DIRECTIONS OF THE HON S BLE HIGH COURT, THE COMPANY IN RESPECT OF ITEMS OF EXPENDITURE FAILING UNDER (A) & (B) OF (I) ABOVE, DEPOSITED THE AMOUNT OF FBT IN THE GOVERNMENT TREASURY UNDER PROTEST, CONTENDING T HAT IT IS ENTITLED TO CLAIM REFUND IN RESPECT OF THE SAME. ACCORDINGLY THE COMPANY CONTENDS THAT NO FBT IS LIA BLE TO BE PAID BY IT IN RESPECT OF THE AFORESAID ITEMS OF EXPENDITURE AND ACCORDINGLY ALTH OUGH THE COMPANY HAD PAID THE PASCHIM GJARAT VIJ CO. LTD. ORDER U/S 1!5WE(3) OF THE ACT. FRINGE BENEFIT TAX THE SAME HAVE NOT BEEN INCLUDED M THE RETURN OF FRINGE BENE FITS BEING FILED FOR A Y. 2008-09. THE MATTER WAS A/SO CLARIFIED BY WAY OF A NOTE ATTA CHED TO THE RETURN OF INCOME, IT WAS CLAIMED THAT THE ABOVE SUBMISSION IS AS ITS HONEST AND BONA FIDE BELIEF THAT THE SCOPE OF SECTION 115WB(2) IS RESTRICTED ONLY TO THOSE EXPENDITURE WH ICH ARE INCURRED FOR THE SOLE INTENT/ON TO GIVE BENEFIT THE EMPLOYEES IN ISOLATION OF THE DUTIES AT TACHED TO THE EMPLOYMENT AND THAT THE GENUINE BUSINESS EXPENDITURE AS WELL AS IN RELATION TO PERS ONS WHO ARE NOT EMPLOYEES ARE OUT OF THE PREVIEW OF FST.' 3. THE ABOVE REPLY OF THE ASSESSEE WAS NOT ACCEPTAB LE TO THE LD. ASSESSING OFFICER AND ASSESSMENT WAS COMPLETED BY T AKING THE VALUE OF FBT AT RS.2,17,98,200/- TAKING THE FIRM BA SIS OF TAX AUDIT REPORT. 4. APPEAL BEFORE LD. CIT(A) COULD NOT BRING ANY REL IEF TO THE ASSESSEE AND THE APPEAL WAS DISMISSED BY LD. CIT(A) BY OBSERVING AS UNDER :- 6. .1 HAVE CONSIDERED THE MATTER. AUDITORS APPOINTE D BY THE APPELLANT REPORTED FRINGE BENEFITS AS PER PROVISIONS OF ACT AT RS. 2,17,98,20 0/-. IN OTHER WORDS, THESE ARE TAXABLE FRINGE BENEFITS AS PER AUDITORS BY APPLYING THE PROVISIONS OF INCOME-TAX ACT AS THEY STAND. GUJARAT HIGH COURT IN THE SAID WRIT PETITION HAS NOT YET DECIDED THE MATTER SUBSTANTIVELY AND HAS ONLY GRANTED THAT THE FRINGE BENEFIT TAX BE DEPOSITED IN A SEPARATE ACCOUNT. APPELLANT HAS AVAILED OF SUCH I NTERIM RELIEF, EVEN THOUGH AS PER AO, IT IS FALLING UNDER CATEGORY-1, I.E. CASES COVE RED UNDER PROVISIONS OF FBT. APPELLANT HAS NOT MADE ANY ATTEMPT TO DEMONSTRATE T HAT IT FALLS UNDER CATEGORY 2 OR 3 OF CASES FOR WHICH INTERIM RELIEF WAS PROVIDED BY THE COURT. BE THAT AS MAY, PENDING GUJARAT HIGH COURT'S DECISION ON THE SUBSTA NTIVE ISSUE OF APPLICABILITY OF FRINGE BENEFIT PROVISIONS, FRINGE BENEFITS OF RS. 2 ,17,99,200/- CERTIFIED BY THE AUDITORS ARE HELD TO BE TAXABLE UNDER PROVISIONS OF I.T. ACT . THE SAME WERE RIGHTLY BROUGHT TO ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 4 TAX BY THE AO. LEVY OF INTEREST U/S 115WJ IS ALSO J USTIFIED IN THIS SITUATION. HENCE ALL THESE GROUNDS ARE DISMISSED. 5. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE OUTSET THE LD. DR SUBMITTED THAT THE ISSU E RAISED IN THIS GROUND IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE CO-ORDINATE BENCH, AHMEDABAD IN THE CASE OF GUJ ARAT ENERGY TRANSMISSION CORPN. LTD. VS. ACIT, CIRCLE-1(1), BAR ODA IN ITA NO.2264 & 2402/AHD/2010 FOR ASST. YEAR 2006-07 & 07 -08 VIDE ORDER DATED 13.9.2013 AND ASSESSEE BEING COVERED UNDER CA TEGORY -1, OF THE PROVISIONS OF FBT, AS PER THE JUDGMENT OF HON. JURISDICTIONAL HIGH COURT IN THE CIVIL APPLICATION NO.21121 OF 2006 IN THE CASE OF GUJARAT CHAMBER OF COMMERCE & INDUS. VS. UNION OF INDIA DAT ED 18.10.2005. 7. ON THE OTHER HAND, LD. AR COULD NOT CONTROVERT T HE SUBMISSIONS MADE BY LD. DR AND ACCEPTED THAT THE ISSUE IS COVER ED AGAINST THE ASSESSEE BY THE DECISION OF THE CO-ORDINATE BENCH I N THE CASE OF GUJARAT ENERGY TRANSMISSION CORPN. LTD. (SUPRA). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. ASSESSEE HAS RAISED FOUR GROUNDS OF APPE AL BUT THE SOLITARY GRIEVANCE RAISED IN GROUND NO.1 IS AGAINST THE ORDER OF LD. CIT(A) CONFIRMING THE PAYABLE VALUE OF FBT AT RS. 2 ,17,98,200/- AS AGAINST THE RETURN FILED AT RS.NIL OFFERED BY THE A SSESSEE. WE OBSERVE THAT IN THE RETURN OF INCOME FILED BY ASSES SEE VALUE OF FBT WAS SHOWN AT RS. NIL WHEREAS AS PER TAX AUDIT REPOR T UNDER SECTION 44AB OF THE ACT, AUDITORS HAVE REPORTED THE FBT VAL UE UNDER CHAPTER ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 5 XII-H OF THE ACT AT RS.2,17,98,200/- AND FBT PAYABL E THEREON AT RS.74,09,208/-. 9. WE FURTHER OBSERVE THAT LD. AR COULD NOT CONTROV ERT THE FINDINGS OF LD. CIT(A) AS WELL AS THE SUBMISSIONS OF LD. DR. WE ALSO OBSERVE THAT THE ISSUE RAISED IN THIS GROUND HAS BEEN DULY ADJUDICATED BY THE CO-ORDINATE BENCH IN THE CASE OF GUJARAT ENERGY TRA NSMISSION CORPN. LTD. (SUPRA). IT WOULD BE WORTHWHILE TO MENTION THE FACTS DEALT IN THE DECISION OF CO-ORDINATE BENCH ALONG WITH THE DECISI ON THEREON WHICH READS AS UNDER :- 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AS SESSING OFFICER NOTICED THAT THE VALUE OF FRINGE BENEFIT TAX (FBT) WAS DECLARED AT R S. NIL BY THE ASSESSEE BUT IN THE TAX AUDIT REPORT FILED UNDER SECTION 44AB OF THE ACT, T HE VALUE OF FRINGE BENEFIT WAS STATED AT RS. 2,87,55,560/-. THE ASSESSEE WAS ASKED TO CLARIF Y THE DISCREPANCY AND JUSTIFY ITS EXPLANATION. ASSESSEE INTERALIA SUBMITTED THAT IN V IEW OF THE JUDGMENT OF HON. GUJARAT HIGH COURT IN THE CASE OF GUJARAT CHAMBER OF COMMER CE AND INDUSTRIES VS. UNION OF INDIA DELIVERED ON 18,10,2005, ASSESSEE IS NOT LIAB LE TO PAY FBT AND THEREFORE VALUE OF FBT WAS DECLARED AT RS. NIL IN THE RETURN. ASSESSIN G OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE. HE WAS OF THE VIEW THAT THE ASSESS EE WAS LIABLE TO PAY FBT ON THE VALUE OF FRINGE BENEFIT UNDER THE PROVISIONS OF CHAPTER X II-H OF THE IT ACT. HE ACCORDINGLY HELD AS UNDER: 3. CONTENTIONS RAISED BY THE ASSESSEE HAVE BEEN DU LY CONSIDERED BY ME IN THE LIGHT OF JUDGMENT (SUPRA) OF HON. GUJARAT HIGH COUR T, IT IS VERY INTERESTING TO NOTE THAT IN THE CASE BEFORE HON. HIGH COURT OF GUJARAT, HON. HIGH COURT WAS CONCERNED WITH THE ISSUE OF APPLICABILITY OF PROVIS IONS RELATING TO FBT ENACTED BY THE LEGISLATURE VIDE FINANCE ACT, 2005 WITH EFFECT FROM 1.4.2006 IN CASE OF THREE CATEGORIES OF ASSESSEES. THE FIRST CATEGORY OF THE ASSESSEES IS THE CATEGORY IN WHICH ASSESSEES ARE COVERED UNDER THE PROVISIONS OF FBT,THE SECOND CATEGORY IS OF THE ASSESSEES WHERE THEY, MAY BE GOVERNED PARTIA LLY AND THE THIRD CATEGORY IS OF THE ASSESSEE WHEREIN THE FBT IS SOUGHT TO BE LEV IED BY THE GOVERNMENT DESPITE THE FACT THAT EMPLOYER IS NOT MAKING ANY PAYMENT TO ANY EMPLOYEE OR NOT INCURRING ANY EXPENDITURE FOR ANY EMPLOYEE SO AS TO ATTRACT FBT. VIDE SAID JUDGMENT, HON HIGH COURT HAS GRANTED AD-INTERIM REL IEF BY DIRECTING THAT THE ASSESSEES SHALL DEPOSIT THE AMOUNT OF FBT IN A SEPA RATE ACCOUNT TO BE OPENED AND MAINTAINED WITH A SCHEDULED NATIONALIZED BANK SUBJE CT TO THE CONDITION THAT AMOUNT SO DEPOSITED SHALL NOT BE UTILIZED FOR ANY P URPOSE AND NO CHARGE SHALL BE ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 6 CREATED ON SUCH DEPOSITS NOR IT SHALL BE USED AS A COLLATERAL FOR OBTAINING ANY LOAN AGAINST THE SAME. HOWEVER, THE HON. HIGH COURT AT PARA 3 OF THE JUDGMENT HAS VERY CATEGORICALLY CLARIFIED THAT THE AD-INTERI M RELIEF GRANTED SHALL BE APPLICABLE ONLY IN CASE WHERE THE ASSESSEE DISPUTES THE LIABILITY TO THE EXTENT OF BEING COVERED BY CATEGORY NO.2 OR 3, HOWEVER, IN TH E GIVEN CASE, ASSESSEE IS COVERED UNDER CATEGORY 1 I.E. CLASS OF ASSESSEES WH O ARE COVERED BY PROVISIONS OF FBT, THEREFORE HAVING REGARD TO THE FACTS OF THE AS SESSEES CASE AND TERMS OF ADDITION-INTERIM RELIEF GRANTED BY HON. HIGH COURT, ASSESSEES CASE IS NOT COVERED ON ANY COUNT BY THE JUDGMENT OF HON. HIGH C OURT. SINCE ASSESSEE'S CASE IS NOT COVERED BY THE DECISION OF HON. HIGH COURT O F GUJARAT, ASSESSEE IS LIABLE TO PAY FBT ON THE VALUE OF FB UNDER THE PROVISIONS OF CHAPTER XII-H OF THE I.T. ACT. ASSESSEE HAS NOT PRODUCED ANY PROOF AS REGARDS PAYM ENT OF FBT ON THE VALUE OF FB AS REPORTED IN THE TAX AUDIT REPORT. THEREFORE I T IS HELD THAT ASSESSEE IS LIABLE TO PAY FBT AND AMOUNT DEPOSITED BY IT, IF ANY, IN T HE SEPARATE BANK ACCOUNT IN TERMS OF SAID JUDGMENT OF HON. HIGH COURT, SUCH DEP OSIT SHALL NOT OPERATE AS PAYMENT TOWARDS DISCHARGE OF ITS FBT LIABILITY. 4. IN VIEW OF THE ABOVE AFTER VERIFICATION OF THE B OOKS OF ACCOUNT ON TEST CHECK BASIS AND THE RECORDS AVAILABLE, THE TAXABLE FB IS WORKED TO RS. 2,87,55,560/-. 5. IT IS PERTINENT TO MENTION HERE THAT THE ACCOUNT ANT IN ITS REPORT IN ANNEXURE-II TO FORM NO. 3CD HAS DULY DISCHARGED HIS ONUS BY QUA NTIFYING AND REPORTING THE VALUE OF FB, DESPITE THE INTERIM ORDER OF THE HON. HIGH COURT. THIS ALSO LEADS TO THE CONCLUSION THAT THE INTERIM RELIEF BENEFIT OF T HE ORDER OF THE HON. HIGH COURT ARE NOT EXTENDED TO THE FACTS OF THE ASSESSEE. 6. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASS ESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) UPHELD THE ORDER OF ASSESSING OFFICE R BY HOLDING AS UNDER: 4.6 ON A COMBINED READING OF THE SPEECH OF THE FIN ANCE MINISTER, THE NOTES ON CLAUSES AND THE EXPLANATORY MEMORANDUM (CIRCULAR NO . 8 DT. 29.8.2005), IT IS EVIDENT THAT THE FBT WAS INTRODUCED IN ORDER TO TAX THE BENEFITS WHICH COULD NOT BE BROUGHT WITHIN THE SCOPE OF 'PERQUISITE'. THIS I NCLUDES CASES WHERE THE BENEFITS ARE COLLECTIVELY ENJOYED BY THE EMPLOYEES AND CANNO T BE ATTRIBUTED TO ANY INDIVIDUAL EMPLOYEE. OF COURSE, WHERE THE BENEFIT I S ENJOYED BY A PERSON WHO IS NOT AN EMPLOYEE, NO FBT CAN BE LEVIED. HOWEVER, IT IS FOR THE ASSESSEE TO SHOW THAT THE BENEFIT WAS ENJOYED BY NON-EMPLOYEES. THE APPELLANT HAS ARGUED THAT EVEN IF THE BENEFIT WAS ENJOYED BY ITS EMPLOYEES, I F THE EXPENDITURE WAS INCURRED FOR THE PURPOSES OF THE BUSINESS, IT WOULD ESCAPE T HE LEVY OF FBT. THERE IS, HOWEVER, NO EVIDENCE TO SUBSTANTIATE THIS VIEW. ON THE CONTRARY, IF THE EXPENDITURE HAS BEEN INCURRED ON ITEMS ENUMERATED AT (A) TO (P) OF SUB-SECTION (2) OF SECTION 115WB, THE SAME WOULD BE DEEMED TO BE FRINGE BENEFI TS PROVIDED TO ITS EMPLOYEES. DEEMING PROVISIONS MUST BE STRICTLY CONS TRUED. ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 7 4.7 IT IS SEEN THAT THE STATUTORY AUDITORS OF THE A SSESSEE. IN THE TAX AUDIT REPORT FILED U/S 44AB HAVE THEMSELVES QUANTIFIED THE VALUE OF FRINGE BENEFITS TAKING INTO ACCOUNT THE ITEMS AT (A) TO (P) MENTIONED IN SECTIO N 115WB(2). IT IS PERTINENT TO NOTE THAT ALL THE EXPENDITURE HAS BEEN INCURRED ON THE EMPLOYEES OF THE ASSESSEE. ADMITTEDLY, NO PART OF THE EXPENDITURE IN QUESTION HAS BEEN INCURRED ON NON- EMPLOYEES. MOREOVER, THE ASSESSEE HAS ITSELF DEPOSI TED THE FBT INTO GOVERNMENT TREASURY AND NOT IN AN ESCROW ACCOUNT WITH A SCHEDU LED BANK. THUS, THE APPELLANT APPEARS TO HAVE CONSIDERED ITSELF TO BE PART OF CAT EGORY (1) AS HELD BY THE HIGH COURT I.E., AN ASSESSEE WHO WAS FULLY COVERED BY TH E PROVISIONS. HAVING REGARD TO THE TOTALITY OF THE CIRCUMSTANCES, I AM OF THE OPIN ION THAT THE ASSESSEE WAS LIABLE TO FBT. THE ACTION OF THE ASSESSING OFFICER IN THIS REGARD IS ACCORDINGLY CONFIRMED. FURTHER, THE ASSESSING OFFICER HAS MEREL Y ACCEPTED THE VALUATION OF TAXABLE FRINGE BENEFITS AS WORKED OUT BY THE ASSESS EE ITSELF. HENCE VALUATION OF THE FRINGE BENEFITS AT RS. 1,34,91,288/- IS ALSO CONFIR MED. THIS GROUND THUS FAILS. 7. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS NO W IN APPEAL BEFORE US. BEFORE US, THE LEARNED A.R. REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND FURTHER RELIED ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF GUJARAT CHAMBER OF COMMERCE AND INDUSTRY (SUPRA). 8. THE LEARNED D.R. ON THE OTHER HAND POINTED TO TH E RELEVANT OBSERVATIONS OF THE ASSESSING OFFICER AND THUS SUPPORTED THE ORDER OF A SSESSING OFFICER AND CIT(A). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS CONSIDERED TH E VALUE OF FRINGE BENEFIT AT RS. NIL BUT HOWEVER IN THE TAX AUDIT REPORT FILED UNDER SECTION 44AB THE STATUTORY AUDITORS HAVE QUANTIFIED THE VALUE OF FRINGE BENEFIT AND BASED ON THE AFORESAID QUANTIFICATION, THE ASSESSEE HAS ALSO DEPOSITED THE FBT INTO GOVERNMENT TREASURY AND NOT IN AN ESCROW ACCOUNT WITH THE SCHEDULED BANK. WE FURTHER FIND TH AT THE ASSESSING OFFICER HAS CONSIDERED THE ASSESSEE TO BE COVERED IN THE CATEGO RY 1 OF THE ASSESSEES WHO WERE COVERED BY THE PROVISIONS OF FBT IN TERMS OF THE DE CISION OF HON. GUJARAT HIGH COURT (SUPRA). BEFORE US, THE LEARNED A.R. COULD NOT CONT ROVERT THE FINDINGS OF ASSESSING OFFICER AND CIT(A) BY BRINGING ANY CONTRARY MATERIAL ON REC ORD. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CI T(A) AND THUS THIS GROUND OF THE ASSESSEE IS DISMISSED. 10. WE OBSERVE THAT THE FACTS OF THE CASE BEFORE US ARE SIMILAR TO THE FACTS DEALT BY THE CO-ORDINATE BENCH IN GUJARAT ENERGY TRANSMISSION CORPN. LTD. (SUPRA) AND RESPECTFULLY F OLLOWING THE ABOVE DECISION OF THE CO-ORDINATE BENCH, WE ARE OF THE VI EW THAT AS THE ISSUE IN THIS APPEAL IS COVERED BY THE DECISION OF HON. GUJARAT HIGH ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 8 COURT IN THE CASE OF GUJARAT CHAMBER OF COMMERCE & INDUS. VS. UNION OF INDIA AND, THEREFORE, ASSESSEE IS COVERED UNDER THE UNDER THE PROVISIONS OF CHAPTER XII-H OF THE I.T. ACT AND IS LIABLE FOR PAYING FBT. ACCORDINGLY, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A) AND ASSESSEES APPEAL IS DISMISSED. 11. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2016 SD/- SD/- (S. S. GODARA JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 27/6/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1388/AHD/2012 ASST. YEAR 2009-10 9 1. DATE OF DICTATION: 24/06/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 27/06/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 28/6/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: