Mahanagar Telephone Nigam Ltd., New Delhi V. CIT, New Delhi

ITA 2174/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6243 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARAMITA M BISWAS
• Assessee Lawyers: ASHISH CHADHA
• Section: 263

Judgement Text

ITA NO. 2174/DEL/2012 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SH. G.D. AGRAWAL, HONBLE VICE PRESIDENT AND SMT. BEENA A PILLAI, JM ITA NO. 2174/DEL/2012 : ASSTT. YEAR : 2006-07 MAHANAGAR TELEPHONE NIGAM LTD. 12 TH FLOOR, TOWER-1, JEEVAN BHARTI BLDG., 124, CONNAUGHT CIRCUS, NEW DELHI. AAACM0828R VS CIT LARGE TAXPAYER UNIT (LTU) NEW DELHI. (APPELLANT) (RESPONDENT) PAN NO. AFWPC1171P ASSESSEE BY : SH. VEDJAIN, ADV. & SH. ASHISH CHADHA, CA REVENUE BY : MS. PARAMITA M. BI SWAS, CIT DR DATE OF HEARING : 21.03.2016 DATE OF PRONOUNCEMENT : 30.03.2016 ORDER PER BEENA A PILLAI, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LD.CIT UNDER SECTION 263 OF THE ACT FOR ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LD. CIT U/S 263 OF THE ACT IS BAD, BO TH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LD. CIT CANCELLING THE ASSESSMENT ORD ER PASSED BY THE AO IS UNTENABLE IN THE ABSENCE OF ORD ER ITA NO. 2174/DEL/2012 OF THE AO BEING ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LD. CIT IS BAD BOTH IN THE EYE OF LAW AND ON FACTS AND IS LIABLE TO BE QUASHED AS THE SAME IS WITHOUT JURISDICTION AS THE ORDER OF THE CIT HAS ME RGED WITH THE ORDER OF THE AO AND THE CIT HAS NO POWER T O REVISE THE ORDER PASSED BY THE AO. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE FACT THAT ALL THE ISSUES RAISED BY HIM IN NOTICE U/S 263 WERE BEFORE THE AO AND AS SUCH THE JURISDICTION ON THIS ISSUE U/S 263 CANNOT BE ASSUMED. 5. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE APPELLANT THAT THE ISSUE OF FRING E BENEFIT TAX ON THE AMOUNT OF CONTRIBUTION TO SUPERANNUATION FUND LIABLE FOR FBT WAS BEFORE THE A O IN PROCEEDINGS U/S 115WG READ WITH SECTION 115E(3) OF THE ACT AND WAS ALLOWED AFTER APPLICATION OF MIN D BY HIM AS SUCH THE SAME CANNOT BE THE MATTER FOR REASSESSMENT U/S 263 OF THE ACT. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO HAVING TAKEN ONE OF THE POSSIBLE VIEWS THE LD. CIT WAS NOT JUSTIFIED IN HOLDING THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE CONTENTION OF THE APPELLANT THAT THE PROCEEDING U/S 263 CANNOT BE USED FOR SUBSTITUTING OPTION OF THE A O BY THAT OF THE CIT. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE CONTENTION THAT PAYMENT MADE BY THE APPELLANT IS NO T COVERED WITHIN THE MEANING OF FRINGE BENEFIT U/S 115WB(1)(C ) AND AS SUCH NOT LIABLE FOR FRINGE BENE FIT TAX. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT HAS ERRED BOTH ON FACTS AND IN LAW IN INVOKING REVISIONARY POWER U/S 263 OF THE ACT DESPITE THE FA CT ITA NO. 2174/DEL/2012 THAT EVEN AFTER THOROUGH EXAMINATION, NO SPECIFIC FINDINGS HAVE BEEN GIVEN ON THE ISSUE OF HOW THE OR DER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REV ENUE. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR AL TER ANY OF THE GROUNDS OF APPEAL. 2. THE ASSESSEE FILED E-RETURN DECLARING VALUE OF F RINGE BENEFITS AMOUNTING TO RS. 16,60,66,503/- FOR THE YEAR UNDER CONSIDERATION ON 29.10.2006 ASSESSMENT UNDER SECTIO N 115WE(3) WAS MADE ON 11.12.2008 AT RS. 16,60,66,503/-. SUBSE QUENTLY DURING THE SCRUTINY PROCEEDINGS UNDER SECTION 143(3 ) IT WAS OBSERVED BY THE LD. AO THAT THE VALUE OF FRINGE MET BENEFITS AMOUNTING TO RS. 322,74,88,883/-ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 115WG OF THE ACT. A REASSESSMENT ORDER UNDER SECTION 115 WG/115WE (3) OF THE ACT WAS PASSE D ON 12.02.2010 DATA MINING TOTAL VALUE OF FRINGE BENEFI T AT RS. 3,39,35,55,386/-. 2.1 THE LD. AO PROPOSED REVISION OF THE ABOVE ASSES SMENT ORDER UNDER SECTION 263 OF THE ACT ON THE GROUND THAT WHI LE COMPLETING THE ABOVE ASSESSMENT, THE VALUE OF CONTRIBUTIONS MA DE TO AN APPROVED SUPERANNUATION FUND HAS BEEN ERRONEOUSLY T AKEN AT RS. 3,22,74,88,883/-AS AGAINST ACTUAL CONTRIBUTION OF RS. 4,52,28,99,000/-AS REFLECTED IN THE FINANCIAL STATE MENTS FORMING PART OF THE ANNUAL REPORT OF THE ASSESSEE COMPANY F OR THE YEAR UNDER CONSIDERATION. 2.2 AGGRIEVED BY THE ORDER OF LD.CIT PASSED UNDER S ECTION 263 THE ASSESSEE IS AN APPEAL BEFORE US NOW. 3. AT THE OUTSET THE LD.AR SUBMITS THAT POST FILING OF THE PRESENT APPEAL THE ASSESSMENT WAS COMPLETED BY THE ASSESSING ITA NO. 2174/DEL/2012 OFFICER CONSEQUENT TO THE ABOVE ORDER PASSED BY THI S CIT UNDER SECTION 263. THE ASSESSEE FILED AN APPEAL BEFORE TH E LD.CIT (A) AGAINST THE REASSESSMENT ORDER PASSED BY THE LD. AO . THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. AGAINST THIS ORDER OF THE LD. CIT(A), THE ASSESSEE CAME IN APPEA L BEFORE THE HONBLE TRIBUNAL IN ITA NO. 510/DEL/2011. THIS HON BLE TRIBUNAL WIDE ORDER DATED 26.09.2014 RESTORED THE I SSUE OF FRINGE BENEFIT TAX TO THE LD. AO FOR DE NOVO MORE CONSIDERATION. THE LD. AND AR SUBMITTED THAT ASSESSING OFFICER WHY ITS ORD ER DATED 02.02.2016 HAS PASSED THE ORDER AND ACCEPTED THE CO NTENTIONS OF THE ASSESSEE. THE LD. AR SUBMITS THAT THE PRESENT A PPEAL BECOMES INFRUCTUOUS IN VIEW OF THE ORDER DATED 02.0 2.2016, PASSED BY THE ASSESSING OFFICER. 3.1 WE HAVE PRODUCED THE RECORDS PLACED BEFORE US A ND THE ORDERS REFERRED TO AND RELIED UPON BY THE LD.AR AND HAVE VERIFIED THE SUBMISSIONS SO MADE BY THE LD.AR. IN VIEW OF TH E ABOVE DISCUSSION AND THE ORDER DATED 02.02.2016 PASSED BY THE ASSESSING OFFICER THE PRESENT APPEAL FILED BY THE A SSESSEE STANDS INFRUCTUOUS. ACCORDINGLY THE GROUNDS RAISED BY THE APPEAL ARE DISMISSED UNANSWERED. 4. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.03.2016 SD/- SD/- (G.D. AGRAWAL) (BEENA A PILLAI) VICE PRESIDENT JU DICIAL MEMBER DATED: 30.03.2016 *KAVITA ARORA ITA NO. 2174/DEL/2012 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR