M/s. Gujarat Urja Vikas Nigam Board., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

ITA 1389/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9576 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 26-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 44AB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.1389/AHD/2012 / ASSTT. YEAR: 2008-2009 GUJARAT URJA VIKAS NIGAM LTD. SARDAR PATEL VIDYUT BHAVAN BARODA 390 007. PAN: AAACG 2861 L VS DCIT, CIR.1(1) BARODA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI M.J. SHAH REVENUE BY : SHRI K. MADHUSUDAN, SR.DR / DATE OF HEARING : 03/01/2017 / DATE OF PRONOUNCEMENT: 06/01/2017 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-I, BARODA DATED 11.4.2012 PASSED FOR THE ASSTT.YEAR 20 08-09. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF AP PEAL, IN BRIEF ITS GRIEVANCE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIR MING THE ASSESSMENT OF TOTAL VALUE OF FRINGE BENEFIT AT RS.39,48,479/- AS AGAINS T NIL BENEFIT OFFERED 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 VALU E OF FRINGE AT NIL. IN THE TAX AUDIT REPORT OBTAINED BY THE ASSESSEE UNDER SEC TION 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 TH E VALUE OF FRINGE BENEFIT ITA NO.1389/AHD/2012 2 AND CONFRONTED THE ASSESSEE AS TO WHY VALUE OF FRIN GE BENEFIT REPORTED BY THE AUDITORS SHOULD NOT BE ADDED FOR THE PURPOSE OF LEV YING FRINGE BENEFIT TAX. IN RESPONSE TO THE QUERY OF THE AO, IT WAS CONTENDED T HAT A WRIT PETITION HAS BEEN FILED BY THE GUJARAT CHAMBER OF COMMERCE & INDUSTRY BEFORE THE HONBLE GUJARAT HIGH COURT CHALLENGING VALIDITY OF CBDT CIR CULAR NO.8 DATED 29.8.2005 SEEKING TO INTERPRET PROVISIONS OF FBT AS PROVIDED FOR LEVY OF FBT. THE LD.AO HAS EXAMINED CONTENTION OF THE ASSESSEE A ND OBSERVED THAT THERE ARE THREE CATEGORIES OF ASSESSEE UPON WHOM FBT IS T O BE LEVIED. ACCORDING TO THE AO, HONBLE GUJARAT HIGH COURT HAS GRANTED INTE RIM-RELIEF QUA CATEGORY NOS. AND 2. THESE CATEGORIES ARE (A) IN THE FIRS T CATEGORY ASSESSEES ARE COVERED UNDER THE PROVISION OF FBT, (B) UNDER THE S ECOND CATEGORY, IT WAS IN DISPUTE WHETHER THEY ARE GOVERNED PARTIALLY BY THE FBT, AND (C) THOSE ASSESSEES WHERE FBT WAS SOUGHT TO BE LEVIED BY THE GOVERNMENT DESPITE THE FACT THAT EMPLOYER WAS NOT MAKING ANY PAYMENT TO AN Y EMPLOYEES OR NOT INCURRING ANY EXPENDITURE FOR ANY EMPLOYEES SO AS T O ATTRACT FBT. ACCORDING TO THE AO UNDER CATEGORY NO.2 AND 3 INTERIM DIRECTI ON OF THE HONBLE HIGH COURT IS THERE, WHEREAS THE CASE OF ASSESSEE FALLS IN THE CATEGORY NO.1 I.E. PROVISIONS OF FRINGE BENEFIT TAX ARE APPLICABLE ON THE TRANSACTION OF THE ASSESSEE. ACCORDINGLY, THE LD.AO MADE ADDITION OF RS.39,48,479/- TOWARDS TOTAL VALUE OF FRINGE BENEFIT. APPEAL TO THE LD.C IT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT AN IDENTICAL ISSUE AROSE IN THE ASSTT.YAR 2009-10 AND THE TRIBUNAL HAS CONFIRMED THE ADDITION IN ITA NO.2665/AHD/2013. HE CONCEDED THAT ISSUE IS TO BE DECIDED AGAINST THE ASSESSEE. CONSIDERING THE FACT S AND CIRCUMSTANCES OF THE ITA NO.1389/AHD/2012 3 CASE AND THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEA R 2009-10, I AM OF THE VIEW THAT APPEAL OF THE ASSESSEE IS DEVOID OF ANY MERIT, AND HENCE IT IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 6 TH JANUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER