Gujarat State Electricity Corporation Ltd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

ITA 2666/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6325 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 15-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: M J SHAH

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NO.2666/AHD/2013 / ASSTT. YEAR: 2009-2010 GUJARAT STATE ELECTRICITY CORPORATION LTD. SARDAR PATEL VIDYUT BHAVAN RACE COURSE CIRCLE BARODA. VS. DCIT, CIR.1(1) BARODA. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M.J. SHAH, AR REVENUE BY : SHRI ANTONY PARIATH, SR.DR ! / DATE OF HEARING : 24/03/2017 '#$ ! / DATE OF PRONOUNCEMENT: 06/04/2017 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST T HE ORDER OF LD.CIT(A)-I, BARODA DATED 18.9.2013 PASSED FOR THE ASSTT.YEAR 2009-10. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF AP PEAL, BUT ITS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE WHEREBY IT HAS CHALLENGED THE ORDER OF THE CIT(A) ON THE ISSUE OF CONFIRMATION OF TOTAL VALUE OF FRINGE BENEFIT AT RS.3,90,72,834/- FOR THE PURPOSE OF LEVY ING TAX ON ACCOUNT OF SUCH FRINGE BENEFIT. ITA NO.2666/AHD/2013 2 3. BRIEF FACTS OF THE CASE ARE THAT HE ASSESSEE HAS FILED ITS RETURN OF INCOME ELECTRONICALLY. IT HAS REVISED ITS RETURN O N 10.9.2010 SHOWING TOTAL VALUE OF FRINGE BENEFIT AT RS.NIL. IN THE AU DIT REPORT SUBMITTED UNDER SECTION 44AB OF THE INCOME TAX ACT, THE AUDIT ORS HAVE REPORTED VALUE OF FRINGE BENEFIT AT RS.3,90,72,834/-. THE L D.AO HAS RECORDED REASONS FOR REOPENING OF THE ASSESSMENT FOR THE PUR POSE OF LEVY OF FRINGE BENEFITS TAX UNDER SECTION 115WG OF THE ACT AND ISSUED NOTICE UNDER SECTION 115WH. AFTER HEARING THE ASSESSEE, H E PASSED ASSESSMENT ORDER ON 18.10.2012 UNDER SECTION 115WE( 3) R.W.S. 115WG OF THE INCOME TAX ACT AND DETERMINED VALUE OF FRING E BENEFIT AT RS.3,90,72,834/- AS AGAINST NIL VALUE REPORTED BY T HE ASSESSEE. 4. ON APPEAL, THE LD.CIT(A) HAS OBSERVED THAT IN TH E CASE OF GUJARAT URJA VIKAS NIGAM LTD. SIMILAR ISSUE WAS CONSIDERED BY HIS PREDECESSOR IN THE ASSTT.YEAR 2007-08. HE PUT RELIANCE UPON TH IS ORDER AND CONFIRMED THE ASSESSMENT OF FRINGE BENEFIT. 5. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE CONCE DED THAT IN THE CASE OF GUJARAT URJA VIKAS NIGAM LTD., SIMILAR ISSU E WAS TRAVELLED UPTO THE TRIBUNAL IN ITA NO.2665/AHD/2013. THE TRIBUNAL HAS CONFIRMED SUCH ASSESSMENT OF FRINGE BENEFIT. THEREAFTER, THI S ORDER WAS FOLLOWED BY THE TRIBUNAL IN THE ASSTT.YEAR 2008-09 I.E. ITA NO.1389/AHD/2012. HE PLACED ON RECORD COPY OF THIS ORDER AND CONTENDE D THAT APPEAL OF THE ASSESSEE HAS NO MERIT. 7. IN VIEW OF THE STAND OF THE ASSESSEE, THE LD.DR SUPPORTED THE ORDER OF THE CIT(A). 8. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. IN THE CASE OF GUJARAT URJA VIKA S NIGAM LTD., FOR THE ASSTT.YEAR 2008-09, THE TRIBUNAL HAS MADE THE FOLLO WING OBSERVATIONS: ITA NO.2666/AHD/2013 3 ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A)-I, BARODA DATED 11.4.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THOUGH THE ASSESSEE HAS TAKEN FOUR GROUNDS OF AP PEAL, IN BRIEF ITS GRIEVANCE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ASSESSMENT OF TOTAL VALUE OF FRINGE BENEFIT AT RS.3 9,48,479/- AS AGAINST 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 VALUE OF FRINGE AT NIL. IN THE TAX AUDIT REPORT OB TAINED BY THE ASSESSEE UNDER SECTION 44AB OF THE INCOME TAX ACT, THE AUDITORS HAVE REPORTED VALUE OF FRINGE BENEFIT AT RS.39,48,4 79/-. THE AO HAS REOPENED THE ASSESSMENT FOR REOPENING THE VALUE OF FRINGE BENEFIT AND CONFRONTED THE ASSESSEE AS TO WHY VALUE OF FRINGE BENEFIT REPORTED BY THE AUDITORS SHOULD NOT BE ADDE D FOR THE PURPOSE OF LEVYING FRINGE BENEFIT TAX. IN RESPONSE TO THE QUERY OF THE AO, IT WAS CONTENDED THAT A WRIT PETITION HAS B EEN FILED BY THE GUJARAT CHAMBER OF COMMERCE & INDUSTRY BEFORE THE H ONBLE 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 C ONTENTION OF THE ASSESSEE AND OBSERVED THAT THERE ARE THREE CATE GORIES OF ASSESSEE UPON WHOM FBT IS TO BE LEVIED. ACCORDING TO THE AO, HONBLE GUJARAT HIGH COURT HAS GRANTED INTERIM-RELI EF QUA CATEGORY NOS. AND 2. THESE CATEGORIES ARE (A) IN THE FIRST CATEGORY ASSESSEES ARE COVERED UNDER THE PROVISION OF FBT, (B) UNDER THE SECOND CATEGORY, IT WAS IN DISPUTE WHETHE R THEY ARE GOVERNED PARTIALLY BY THE FBT, AND (C) THOSE ASSESS EES WHERE FBT WAS SOUGHT TO BE LEVIED BY THE GOVERNMENT DESPITE T HE FACT THAT EMPLOYER WAS NOT MAKING ANY PAYMENT TO ANY EMPLOYEE S OR NOT INCURRING ANY EXPENDITURE FOR ANY EMPLOYEES SO AS T O ATTRACT FBT. ACCORDING TO THE AO UNDER CATEGORY NO.2 AND 3 INTER IM DIRECTION OF THE HONBLE HIGH COURT IS THERE, WHEREAS THE CAS E OF ASSESSEE FALLS IN THE CATEGORY NO.1 I.E. PROVISIONS OF FRING E BENEFIT TAX ARE APPLICABLE ON THE TRANSACTION OF THE ASSESSEE. ACC ORDINGLY, THE LD.AO MADE ADDITION OF RS.39,48,479/- TOWARDS TOTAL VALUE OF FRINGE BENEFIT. APPEAL TO THE LD.CIT(A) DID NOT B RING 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.YEAR 200 9-10 AND THE TRIBUNAL HAS CONFIRMED THE ADDITION IN ITA NO.2665/ AHD/2013. HE CONCEDED THAT ISSUE IS TO BE DECIDED AGAINST THE ASSESSEE. ITA NO.2666/AHD/2013 4 CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEAR 2009-10, I AM OF THE VIEW THAT APPEAL OF THE ASSESSEE IS DEVOID OF ANY MERIT, AND HENCE IT IS DISMISSED. 9. THERE IS NO DISPARITY ON FACTS IN THE CASE OF TH E ASSESSEE IN THE PRESENT ASSESSMENT YEAR. THE LD.CIT(A) HAS ALSO RE LIED UPON THE ORDER OF THE TRIBUNAL IN THE CASE OF GUJARAT URJA VIKAS N IGAM LTD. FOR THE ASSTT.YEAR 2009-10, WHICH HAS BEEN FOLLOWED BY THE TRIBUNAL IN ITA NO.1389/AHD/2012. CONSIDERING ALL THESE ASPECTS, W E DO NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 6 TH APRIL, 2017. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER