Gujarat Power Corporation Limited-GPCL, Ahmedabad V. The Commissioner of Income Tax, Gandhinagar , Gandhinagar

ITA 1497/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9374 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 07-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA A GARWAL
• Assessee Lawyers: S N SOPARKAR
• Section: 14A; 263

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO. 1497/AHD/2018 ( ASSESSMENT YEAR : 2013-14) GUJARAT POWER CORPORATION LIMITED - GPCL PANKAJ R. SHAH & ASSOCIATES, CHARTERED ACCOUNTANTS 7 TH FLOOR, REGENCY PLAZA OPP. RAHUL TOWER, NEAR MADHUR HALL, ANAND NAGAR CROSS ROAD, SATELLITE, AHMEDABAD - 380009 / VS. COMMISSIONER OF INCOME TAX, OFFICE OF THE COMMISSIONER OF INCOME TAX, GANDHINAGAR 1 ST FLOOR, VASANT NATURE VIEW BUILDING, ASHRAM ROAD, AHMEDABAD - 380009 ./ ./ PAN/GIR NO. : AAACG5596J ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. N. SOPARKAR, A.R. / RESPONDENT BY : SMT. APARNA AGARWAL, CIT.D.R. DATE OF HEARING 19/09/2019 !'# / DATE OF PRONOUNCEMENT 19/09/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX , GANDHINAGAR (CIT ITA NO. 1497/AHD/18 [GUJARAT POWER CORP. LTD. VS. CIT] A.Y. 2013-14 - 2 - IN SHORT), DATED 27.03.2018 ARISING UNDER S. 263 OF THE INCOME TAX ACT, 1961 (THE ACT); CONCERNING A.Y. 2013-14. 2. AS PER ITS GROUNDS OF APPEAL, THE ASSESSEE HAS E SSENTIALLY CHALLENGED THE ACTION OF THE CIT, GANDHINAGAR IN INVOKING REVI SIONARY JURISDICTION UNDER S.263 OF THE ACT ON THE GROUND THAT THE AO HA S COMMITTED ERROR FOR NOT TAKING COGNIZANCE OF DISALLOWANCE COMPUTED UNDE R S.14A OF THE ACT UNDER NORMAL PROVISIONS, FOR THE PURPOSES OF ADJUST MENT IN BOOK PROFIT UNDER S.115JB OF THE ACT. 3. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS ON THE ISSUE. AS POINTED OUT ON BEHALF OF THE ASSESSEE, THE ASSESSEE COMPANY HAD ITSELF OFFERED AN AMOUNT OF RS.1 LAKHS FOR DISALLOWANCE UN DER S.14A OF THE ACT ALSO ADDED IT FOR THE PURPOSES OF BOOK PROFIT UNDER S.115JB OF THE ACT. THE AO APPLIED THE PROVISIONS OF SECTION 14A OF THE ACT AND ENHANCED THE DISALLOWANCE FROM RS.1 LAKHS TO RS.5,26,10,791/- UN DER THE NORMAL PROVISIONS OF THE ACT. HOWEVER, IT IS ALLEGED BY T HE CIT THAT THE AO HAD FAILED TO MAKE CORRESPONDING ADJUSTMENTS WHILE CALC ULATING BOOK PROFIT UNDER S.115JB OF THE ACT. THE SUPERVISORY JURISDIC TION HAS BEEN INVOKED BY THE CIT UNDER S.263 OF THE ACT TO CORRECT THE AF ORESAID ALLEGED ERROR WHICH IS PREJUDICIAL TO THE INTEREST OF THE REVENUE . IN THIS REGARD AS POINTED OUT ON BEHALF OF THE ASSESSEE THAT THE CORR ESPONDING ADJUSTMENT UNDER S.115JB IS NOT PERMISSIBLE IN VIEW OF THE DEC ISION OF THE SPECIAL BENCH IN ACIT VS. VIREET INVESTMENT PVT. LTD. 165 ITD 27 (DE LHI)(SB). WITH THE ASSISTANCE OF THE LEARNED SENIOR COUNSEL O F THE ASSESSEE, WE ALSO FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR O F THE ASSESSEE BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN ALEMBIC LTD. TAX APPEAL NO. 1249 OF 2014 (GUJ) AS WELL AS THE DECISION OF HONBLE GUJARAT HIGH COU RT IN PR.CIT VS. GUJARAT FLORO CHEMICALS LTD. R/TAX APPEAL NO. 11 OF 2019 JUDGMENT DATED 17.06.2019. IN VIEW OF EXPRESS JUDI CIAL FIAT AVAILABLE FROM JURISDICTIONAL HIGH COURT IN THIS REGARD, THE DISAL LOWANCE COMPUTED UNDER S.14A OF THE ACT CANNOT BE IMPORTED FOR THE PURPOSE S OF ADJUSTMENT IN BOOK PROFIT UNDER S.115JB OF THE ACT. IN THIS VIEW OF T HE MATTER, WE SEE NO ERROR IN THE ORDER PASSED BY THE AO UNDER S.143(3) OF THE ACT. THE ASSESSMENT ITA NO. 1497/AHD/18 [GUJARAT POWER CORP. LTD. VS. CIT] A.Y. 2013-14 - 3 - ORDER THUS NOT BEING ERRONEOUS PER SE, THE PRE-REQUISITES FOR INVOKING PROVISIONS OF SECTION 263 OF THE ACT IS NOT FULFILL ED. THE ACTION OF THE CIT IS THUS WITHOUT JURISDICTION. CONSEQUENTLY, THE OR DER OF THE CIT PASSED UNDER S.263 OF THE ACT DATED 27.03.2018 IS QUASHED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (KUL BHARAT) ( PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCO UNTANT MEMBER AHMEDABAD: DATED 19/09/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 19/09/2019