ADITYA BIRLA NUVO LTD, MUMBAI V. ADDL CIT LTU, MUMBAI

ITA 2196/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4219 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL K JHA
• Keywords: Revised return

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,MUMBAI- A,BENCH , , BEFORE S/SHJOGINDER SINGH,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER / ITA NO./2196/MUM/2014 / ASSESSMENT YEAR: 2009-10 M/S. ADITYA BIRLA NUVO LTD. ADITYA BIRLA CENTRE, A-WING, 4 TH FLOOR S.K. AHIRE MARG, WORLI MUMBAI-400 030. PAN:AAACI 1747 H VS. DCIT-LARGE TAX PAYER UNIT 29 TH FLOOR, CENTRE-1 WORLD TRADE CENTRE,CUFFE PARADE MUMBAI-400 005. ( /APPELLANT ) ( / RESPONDENT) / ITA NO./2141/MUM/2014 / ASSESSMENT YEAR: 2009-10 DCIT-LARGE TAX PAYER UNIT MUMBAI-400 005. VS. M/S. ADITYA BIRLA NUVO LTD. MUMBAI-400 030. ( /APPELLANT ) ( / RESPONDENT) REVENUE BY: SHRI SUNIL K. JHA (DR) ASSESSEE BY: SHRI MADHUR AGARWAL (AR) / DATE OF HEARING: 07.04.2016 / DATE OF PRONOUNCEMENT: 07.04.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA A.M. - CHALLENGING THE ORDER DT.11.12.13 OF CIT(A)-24, MUM BAI, THE ASSESSEE AND THE AO HAVE FILED CROSS APPEALS FOR THE ABOVE MENTIONED AY.S.AS SESSEE-COMPANY,ENGAGED IN THE BUSINESS OF RAYON,CARBON BLACK ETC.,FILED ITS RETURN OF FRIN GE BENEFITS(FB)ON 29.9.09 DECLARING VALUE OF FB AT RS.11.86 CRORES .THE ASSESSEE WORKED OUT FRI NGE BENEFIT TAX (FBT) AT RS.4.03 CRORES. ASSESSMENT U/S. 115WE(3) OF THE ACT WAS FINALISED O N 12.12.2011.THE ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE THE APPELLATE AUTHORITY (FAA). 2. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D THE FBT ORDER THE FAA HELD THAT ASSESSEE DID NOT FILE ANY CLAIM OF EXCLUSION OF CER TAIN ITEMS FROM THE COMPUTATION OF TOTAL VALUE OF FB IN THE ORIGINAL RETURN OR IN THE REVISE D RETURN FILED BY IT, THAT IN VIEW OF THE DECISION OF SUPREME COURT IN THE CASE OF GOETZ IND IA PVT. LTD. THE AO WAS JUSTIFIED IN NOT ENTERTAINING THE CLAIM OF THE ASSESSEE.THE ASSESSEE REFERRED TO THE CASE OF GRASIM INDUSTRIES LTD.(ITA/4910 -11,5632/M/2011,DATED 19.6.13).AFTER CONSIDERING THE AVAILABLE MATERIAL HE HELD THAT FACTS OF THE CASE WERE NOT IDENTICAL TO T HAT OF THE CASE OF THE ASSESSEE. HOWEVER FOLLOWING THE SAID ORDER HE DIRECTED AO TO MAKE VER IFICATION AND ALLOW THE CLAIM ACCORDINGLY. 3. BEFORE US, THE AUTHORISED REPRESENTATIVE (AR) STATE D THAT SIMILAR ISSUE HAD ARISEN IN THE CASE OF ASSESSEE FOR THE AY.S 2006-07 AND 2007-08 (ITA.S7583-84/MUM/2010, DT.30.10.15 ). THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE T THE DISCRETION OF THE BENCH. 4. WE FIND THAT WHILE ADJUDICATING THE APPEAL FOR THE ABOVE MENTIONED TWO YEARS THE TRIBUNAL HAD HELD AS UNDER : 6. AT THE VERY OUTSET, THE LD. DEPARTMENTAL REPRE SENTATIVE (DR): REPRESENTING THE REVENUE RAISED A LEGAL QUESTION THAT WHEN THE ASSESSEE IT SELF HAS FILED FRINGE BENEFITS TAX RETURN AND OFFERED THE VALUE TAXABLE AS FBT, THEREFORE, THE ASSESSEE CANNOT RETRACT NOW BY RAISING THE ISSUES RELATING TO THE TAXABILITY OF FBT. IT IS THE CONTENTION OF THE LD. DR THAT IF THE ASSESSEE WAS NOT CONVINCED BY ITS RETURN OF FRINGE BENEFIT , THEN HE SHOULD HAVE FILED A REVISED RETURN 2196,2141-ADITYA BIRLA 2 FAILING WHICH,THE ASSESSEE SHOULD BE PRECLUDED FROM RAISING SUCH GROUNDS OF APPEAL. IN SUPPORT OF HER SUBMISSIONS, THE LD. DR RELIED UPON THE FOLLOWING ORDERS: 1. 35 TAXMAN 153 (BOMBAY)/[1987] 168 ITR 375 (BOMBA Y) 2. 65 ITR 261 (BOMBAY) 7. ON THE CONTRARY, THE LD. AR RELIED UPON THE DECI SION OF HONBLE ITAT, G BENCH, MUMBAI IN ITA NOS. 4910, 4911 AND 5632/MUM/2011 M/S. GRASIM I NDUSTRIES LTD. VS. ACI T. ON THE CAREFUL PERUSAL OF JUDGMENTS RELIED UPON BY THE I D. OR AS WELL AS THE LD. AR, WE ARE OF VIEW THAT THE PARA-MATERIA CONTAINED IN THE JUDGEMENTS R ELIED UPON BY LD. DR IS NOT SIMILAR TO THAT OF THE FACTS OF THE PRESENT CASE,JUDGEMENTS RELIED UPO N BY DR ARE BASED EITHER ON CONCESSION GIVEN BY THE PARTIES OR A SETTLEMENT ARRIVED AT BET WEEN THE ASSESSEE DEPARTMENT. BUT IN THE PRESENT CASE, THE ASSESSEE HAS RETURNED THE FRINGE BENEFITS WITH A RIDER THAT 'TAKING ABUNDANT PRECAUTION' THE VALUE IS OFFERED FOR FRINGE BENEFIT TAX, THEREFORE, THE ASSESSEE HAS GOT A RIGHT TO FILE AND MAINTAIN THE PRESENT APPEAL. 8.NOW COMING UPON THE MERITS OF THE APPEAL. THE ID . AR RELIED U THE GROUNDS OF APPEAL AND REFER TO JUDGMENT DATED 19.06.2013 BY THE HON'BLE ITAT G BENCH, MUMBAI IN ITA NOS. 4910, 4911 5632/MUM/2011 M/S.GRASIM INDUSTRIES LTD. VS. A CIT, WHEREIN AFTER DETAILED DISCUSSION , DIRECTIONS WERE GIVEN TO AO TO EXCLUDE FROM FRINGE BENEFIT ON CERTAIN ITEMS FROM TAXABLE VALUE OF FRINGE BENEFIT SINCE THE GROUNDS MENTIONED IN THE JUDGMENT ARE SIMILAR TO THE GROUNDS TAKEN BY THE APPELLANT BEFORE US. RESPECTFULLY FOLLOWING THE ABOVE,MATTER IS RESTORE D BACK TO FILE OF AO WITH DIRECTION TO VERIFY THE FACTS OF EACH GROUND VIS-A -IS THE FACTS IN THE CASE OF GRASIM INDUSTRIES LTD. EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE I S DECIDED IN ITS FAVOUR,IN PART. ITA 2141/M/2014 4. IN THE APPEAL FILED BY THE AO,THERE ARE NINE EFFECT IVE GROUNDS AND THEY ALL DEAL WITH CHARGEABILITY OF FBT ON VARIOUS EXPENSES INCURRED B Y THE ASSESSEE UNDER DIFFERENT HEADS.WE FIND THAT THE ISSUE ABOUT FBT PERTAIN TO MEDICAL RE IMBURSEMENT, PAYMENT MADE TO IND RAYONS SCHOOL, PAYMENT MADE ON MAINTENANCE OF RESIDENCE CO LONY OF EMPLOYEES, PAYMENT MADE ON INSURANCE,EXPENDITURE OF PAYMENT MADE FOR DRIVERS S ALARY AND EXPENDITURE ON TRANSIT ACCOMMODATION.IN THE APPELLATE PROCEEDINGS,THE FAA HAD DIRECTED THE AO TO VERIFY THE FACTS OF THE CASE WITH FACTS OF THE ORDER OF GRASIM INDUS TRIES LTD. (SUPRA). 5. IN OUR OPINION THE FAA HAD RIGHTLY DIRECTED THE AO TO VERIFY THE FACTS OF THE CASE VIS-A-VIS THE CASE OF GRASIM INDUSTRIES LTD.IN OUR OPINION,HI S ORDER DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. CONFIRMING THE SAME WE DECIDE THE EFFECT IVE GROUND OF APPEAL AGAINST THE AO. AS A RESULT APPEAL FILED BY THE ASSESSE STANDS PART LY ALLOWED AND THE APPEAL OF THE AO IS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH ,APRIL, 2016. 07 , 2016 SD/- SD/- /JOGINDER SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 07.04.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 2196,2141-ADITYA BIRLA 3 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , A , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.