DEPUTY COMMISSIONER OF INCOME TAX, Jaipur V. RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD., Jaipur

ITA 487/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3690 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIMLENDU VERMA
• Keywords: Depreciation; Advance ruling; Set aside
• Section: 43B; 143(3); 115JB; 28

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 487 & 488/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2007-08 & 2009-10 DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-06, JAIPUR CUKE VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADAN NIGAM LTD., VIDHYUT BHAWAN, JANPATH, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCR7436B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI P. C. PARWAL (CA) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : VIMLENDU VERMA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 01/06/2018 VKNS'K@ ORDER PER BENCH: THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 25.01.2018 FOR A.Y. 2007 -08 & 2009-10 RESPECTIVELY. 2. FIRSTLY, A COMMON GROUND HAS BEEN TAKEN BY THE R EVENUE IN BOTH THE APPEALS CHALLENGING THE ACTION OF THE L D CIT(A) IN DELETING THE DISALLOWANCE ON ACCOUNT OF ADVANCE RECEIVED AGA INST DEPRECIATION DEFERRED. ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 2 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE MAT TER IS SQUARELY COVERED BY THE RECENT DECISION OF THIS BENCH IN ASS ESSEES OWN CASE IN ITA NO. 1013/JP/2017 FOR AY 2008-09 DATED 08.05.2018 AND THE FACTS AND CIRCUMSTANCES OF THE CASE ARE EXACTLY IDENTICAL , THE SAID DECISION SHOULD THEREFORE BE FOLLOWED IN RESPECT OF BOTH THE IMPUNGED ASSESSMENT YEARS. 4. THE RELEVANT FINDINGS IN ITA NO. 1013/JP/2017 FO R AY 2008-09 DATED 08.05.2018 ARE CONTAINED AT PARA 9 TO 11 OF O UR ORDER WHICH ARE REPRODUCED AS UNDER:- 9. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, F IRSTLY, WE REFER THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF NH PC VS. CIT (SUPRA). IN THE FACTS BEFORE THE HON'BLE SUPREME COURT, THE ASSESSEE COMPANY WAS A PUBLIC SECTOR ENTERPRISE ENGAGED IN GENERATIO N OF ELECTRICITY AND SELLING THE SAME TO STATE ELECTRICITY BOARD(S), DIS COMS ETC. AT TARIFF RATES NOTIFIED BY CERC. THE TARIFF CONSISTS OF DEPRECIATI ON, AAD, INTEREST ON LOANS, INTEREST ON WORKING CAPITAL, OPERATION AND M AINTENANCE EXPENSES, RETURN ON EQUITY. AS PER THE GOVERNMENT OF INDIA PO LICY, NOTIFIED ON 26 TH MAY, 1997, THE GOVT. OF INDIA INTRODUCED A MECHANIS M TO GENERATE ADDITIONAL CASH FLOW BY ALLOWING GENERATING COMPANI ES TO COLLECT AAD BY WAY OF TARIFF CHARGE. IT WAS DECIDED THAT THE YEAR IN WHICH NORMAL DEPRECIATION FELL SHORT OF ORIGINAL SCHEDULED LOAN REPAYMENT INSTALLMENT (CAPPED AT 1/12 TH OF THE ORIGINAL LOAN) SUCH SHORTFALL WOULD BE COLL ECTED AS ADVANCE AGAINST FUTURE DEPRECIATION. IN OTHER WO RDS, ONCE THE LOAN STOOD REPAID, THE ADVANCE SO COLLECTED WOULD GET RE DUCE FROM THE NORMAL DEPRECIATION OF THE LATER YEARS, AS SUCH RED UCED DEPRECIATION WOULD BE INCLUDED IN THE TARIFF, IN TURN LOWERING T HE TARIFF. IN THAT FACTUAL ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 3 BACKGROUND, THE QUESTION FOR CONSIDERATION BEFORE T HE HON'BLE SUPREME COURT WAS HOW TO ACCOUNT FOR SUCH AN ADVANCE IN THE HANDS OF ASSESSEE AND FURTHER WHETHER THE REDUCTION OF AAD FROM SALES WAS NOTHING BUT A RESERVE WHICH HAS TO BE ADDED BACK ON THE BASIS OF CLAUSE (B) OF EXPLANATION 1 TO SECTION 115JB OF THE ACT AND THE R ELEVANT FINDINGS OF THE HON'BLE SUPREME COURT ARE CONTAINED AT PARA 11 AND 12 OF ITS ORDER, WHICH IS REPRODUCED AS UNDER: 11. SINCE THE AMOUNT OF AAD IS REDUCED FROM SALES , THERE IS NO DEBIT IN THE PROFIT AND LOSS ACCOUNT, THE AMOUNT DID NOT ENT ER THE STREAM OF INCOME FOR THE PURPOSES OF DETERMINATION OF NET PRO FIT AT ALL, HENCE CLAUSE (B) OF EXPLANATION 1 WAS NOT APPLICABLE. FUR THER, 'RESERVE' AS CONTEMPLATED BY CLAUSE (B) OF EXPLANATION 1 TO SECT ION 115JB OF THE 1961 ACT IS REQUIRED TO BE CARRIED THROUGH THE PROF IT AND LOSS ACCOUNT. AT THIS STAGE, IT MAY BE STATED THAT THERE ARE BROA DLY TWO TYPES OF RESERVES, VIZ., THOSE THAT ARE ROUTED THROUGH THE P ROFIT AND LOSS ACCOUNT AND THOSE WHICH ARE NOT CARRIED VIA THE PROFIT AND LOSS ACCOUNT, FOR EXAMPLE, A CAPITAL RESERVE SUCH AS SHARE PREMIUM AC COUNT. AAD IS NOT A RESERVE. IT IS NOT AN APPROPRIATION OF PROFITS. A AD IS NOT MEANT FOR AN UNCERTAIN PURPOSE. AAD IS AN AMOUNT THAT IS UNDER O BLIGATION, RIGHT FROM THE INCEPTION, TO GET ADJUSTED IN THE FUTURE, HENCE, CANNOT BE DESIGNATED AS A RESERVE. AAD IS NOTHING BUT AN ADJU STMENT BY REDUCING THE NORMAL DEPRECIATION INCLUDIBLE IN THE FUTURE YE ARS IN SUCH A MANNER THAT AT THE END OF THE USEFUL LIFE OF THE PLANT (WH ICH IS NORMALLY 30 YEARS) THE SAME WOULD BE REDUCED TO NIL. THEREFORE, THE ASSESSEE CANNOT USE THE AAD FOR ANY OTHER PURPOSE (WHICH IS POSSIBLE IN THE CASE OF A RESERVE) EXCEPT TO ADJUST THE SAME AGAINS T FUTURE DEPRECIATION SO AS TO REDUCE THE TARIFF IN THE FUTU RE YEARS. AS STATED ABOVE, AT THE END OF THE LIFE OF THE PLANT AAD WILL BE REDUCED TO NIL. IN FACT, SCHEDULE XII-A TO THE BALANCE-SHEET FOR THE F INANCIAL YEARS 2004- ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 4 05 ONWARDS INDICATES RECOUPING. IN OUR VIEW, AAD IS 'INCOME RECEIVED IN ADVANCE'. IT IS A TIMING DIFFERENCE. IT REPRESENTS ADJUSTMENT IN FUTURE WHICH IS IN-BUILT IN THE MECHA NISM NOTIFIED ON MAY 26, 1997. THIS ADJUSTMENT MAY TAKE PLACE OVER A LONG PERIOD OF TIME. HENCE, WE ARE OF THE VIEW THAT AAD IS NOT A RESERVE. 12. FOR THE AFORESTATED REASONS, WE HOLD THAT AAD IS A TIMING DIFFERENCE, IT IS NOT A RESERVE, IT IS NOT CARRIED THROUGH THE PRO FIT AND LOSS ACCOUNT AND THAT IT IS ' INCOME RECEIVED IN ADVANCE' SUBJEC T TO ADJUSTMENT IN FUTURE AND, THEREFORE, CLAUSE (B) OF EXPLANATION 1 TO SECTION 115JB IS NOT APPLICABLE. ACCORDINGLY, THE IMPUGNED RULING IS SET ASIDE AND THE CIVIL APPEAL FILED BY THE ASSESSEE STANDS ALLOWED W ITH NO ORDER AS TO COSTS. 10. FURTHER, WE REFER TO THE DECISION OF THE COORDI NATE BENCH IN THE CASE OF ACIT VS. NHPC (IN ITA NO. 3013 TO 3015/DEL/2010 ORD ER DATED SEPTEMBER, 20, 2014), THE ISSUE FOR CONSIDERATION BEFORE THE COORDINATE BENCH WAS WHETHER THE LD. CIT(A) WAS RIG HT IN LAW IN DELETING THE ADDITION OF RS. 1,40,58,00,000/- MADE BY THE ASSESSING OFFICER U/S 143(3) ON ACCOUNT OF ADVANCE AGAINST DE PRECATION IGNORING THE PROVISIONS OF SECTION 2(24) READ WITH SECTION 2 8 OF THE ACT. THE COORDINATE BENCH RELYING ON THE DECISION OF THE HON 'BLE SUPREME COURT IN THE CASE OF NHPC VS. CIT (SUPRA) HAS HELD THAT A DVANCE AGAINST DEPRECIATION CANNOT BE ADDED UNDER THE COMPUTATION OF THE NORMAL INCOME. THE RELEVANT FINDINGS OF THE COORDINATE BEN CH ARE CONTAINED AT PARA 5 OF ITS ORDER, WHICH IS REPRODUCED AS UNDER: 5. AFTER HEARING BOTH THE SIDES ON THE ISSUE AND C ONSIDERING THE DECISIONS OF HON'BLE SUPREME COURT, WE DECIDE THE I SSUE AS UNDER. ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 5 THE HON'BLE SUPREME COURT HAS GIVEN FINDING AFTER C ONSIDERING THE OBSERVATION OF THE AUTHORITY FOR ADVANCE RULING IN PARA 11 WHICH IS REPRODUCED AS UNDER : '11. SINCE THE AMOUNT OF 'ADVANCE AGAINST DEPRECIAT ION' (AAD) IS REDUCED FROM SALES, THERE IS NO DEBIT IN THE PROFIT AND LOSS ACCOUNT. THE AMOUNT DID NOT ENTER THE STREAM OF INCOME FOR T HE PURPOSES OF DETERMINATION OF NET PROFIT AT ALL, HENCE CLAUSE (B ) OF EXPLANATION-I WAS NOT APPLICABLE. FURTHER, 'RESERVE' AS CONTEMPLA TED BY CLAUSE (B) OF THE EXPLANATION-I TO SECTION 115JB OF THE 1961 A CT IS REQUIRED TO BE CARRIED THROUGH THE PROFIT AND LOSS ACCOUNT. AT THIS STAGE IT MAY BE STATED THAT THERE ARE BROADLY TWO TYPES OF RESERVES , VIZ, THOSE THAT ARE ROUTED THROUGH PROFIT AND LOSS ACCOUNT AND THOS E WHICH ARE NOT CARRIED VIA PROFIT AND LOSS ACCOUNT, FOR EXAMPLE, A CAPITAL RESERVE SUCH AS SHARE RESERVE. IT IS NOT APPROPRIATION OF P ROFITS. AAD IS NOT MEANT FOR AN UNCERTAIN PURPOSE. AAD IS AN AMOUNT TH AT IS UNDER OBLIGATION, RIGHT FROM THE INCEPTION, TO GET ADJUST ED IN THE FUTURE, HENCE, CANNOT BE DESIGNATED AS A RESERVE. AAD IS NO THING BUT AN ADJUSTMENT BY REDUCING THE NORMAL DEPRECIATION INCL UDIBLE IN THE FUTURE YEARS IN SUCH A MANNER THAT AT THE END OF US EFUL LIFE OF THE PLANT (WHICH IS NORMALLY 30 YEARS) THE SAME WOULD B E REDUCED TO NIL. THEREFORE, THE ASSESSEE CANNOT USE THE AAD FOR ANY OTHER PURPOSE (WHICH IS POSSIBLE IN THE CASE OF A RESERVE) EXCEPT TO ADJUST THE SAME AGAINST FUTURE DEPRECIATION SO AS TO REDUCE THE TAR IFF IN THE FUTURE YEARS. AS STATED ABOVE, AT THE END OF THE LIFE OF T HE PLANT, AAD WILL BE REDUCED TO NIL. IN FACT, SCHEDULE XII-A TO THE BALA NCE SHEET FOR THE YEARS 2004-05 ONWARDS INDICATES RECOUPING. IN OUR V IEW, AAD IS 'INCOME RECEIVED IN ADVANCE'. IT IS A TIMING DIFFER ENCE. IT REPRESENTS ADJUSTMENT IN FUTURE WHICH IS IN-BUILT IN THE MECHA NISM NOTIFIED ON ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 6 26.5.1997. THIS ADJUSTMENT MAY TAKE PLACE OVER A LO NG PERIOD OF TIME. HENCE, WE ARE OF THE VIEW THAT AAD IS NOT A R ESERVE.' IN THIS PARA, HON'BLE SUPREME COURT HAS HELD THAT A DVANCE AGAINST DEPRECIATION IS NOT MEANT FOR UNCERTAIN PURPOSES. A DVANCE AGAINST DEPRECIATION IS AN AMOUNT THAT IS UNDER OBLIGATION RIGHT FROM THE INCEPTION AS THE SAME SHALL BE ADJUSTED IN FUTURE, HENCE, CANNOT BE DESIGNATED AS RESERVE. HON'BLE SUPREME COURT HAS AL SO HELD THAT ADVANCE AGAINST DEPRECIATION IS NOTHING BUT AN ADJU STMENT BY REDUCING THE NORMAL DEPRECIATION INCLUDING IN THE FUTURE YEA RS IN SUCH A MANNER THAT AT THE END OF THE USEFUL LIFE OF THE PLANT THE SAME SHALL BE REDUCED TO NIL. THE HON'BLE SUPREME COURT HAS ALSO HELD THA T ASSESSEE CANNOT USE THE ADVANCE AGAINST DEPRECIATION FOR ANY OTHER PURPOSES EXCEPT TO ADJUST THE SAME AGAINST FUTURE DEPRECIATION SO AS T O REDUCE THE TARIFF IN FUTURE YEARS. FOR THIS, THE RELEVANT OBSERVATION OF THE HON'BLE SUPREME COURT IS THAT THERE ARE BROADLY TWO TYPES OF RESERV ES, VIZ., THOSE THAT ARE ROUTED THROUGH PROFIT AND LOSS ACCOUNT AND THOSE WH ICH ARE NOT CARRIED VIDE PROFIT AND LOSS ACCOUNT, FOR EXAMPLE, A CAPITA L RESERVE SUCH AS SHARE PREMIUM ACCOUNT, ADVANCE AGAINST DEPRECIATION IS NOT A RESERVE AND IT IS NOT APPROPRIATION OF PROFITS. THE ABOVE FINDINGS BY THE SUPREME COURT ARE CLEAR AND DECIDE THE ISSUE. IT HA S BEEN HELD THAT AAD IS NOT APPROPRIATION OF PROFIT MEANING THE REBY AAD IS NOT TAKEN OUT OF PROFIT. THAT IT IS NOT A DEDUCTION OUT OF PROFIT. THE SUPREME COURT HAS FURTHER HELD THAT AAD IS AN A MOUNT THAT IS UNDER OBLIGATION, RIGHT FROM THE INCEPTION. THUS IT IS A LIABILITY AND HENCE NOT INCOME. WHEN AN AMOUNT IS RECEIVED BY A PERSON FROM ANOTHER PERSON, IT CAN HAVE TWO NATURE. IT CAN BE I NCOME. IF SO IT HAS TO BE TAKEN TO THE PROFIT AND LOSS ACCOUNT AND FROM PR OFIT AND LOSS ACCOUNT IT GOES TO THE BALANCE SHEET AS RESERVE. ALTERNATIV ELY IT IS A LIABILITY AND STRAIGHT AWAY GOES TO THE BALANCE SHEET UNDER THE H EAD 'LIABILITY' NOT ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 7 UNDER THE HEAD 'RESERVE'. THE SUPREME COURT HAS CAT EGORICALLY HELD THAT IT IS AN AMOUNT THAT IS UNDER OBLIGATION RIGHT FROM THE INCEPTION. THE SUPREME COURT HAS FURTHER GONE TO ANALYSE THE NATUR E OF 'RESERVE'. IT HAS HELD THAT THERE ARE TWO TYPES OF RESERVES. ONE WHICH IS CREATED OUT OF PROFIT AND ANOTHER WHICH ARE CAPITAL RESERVE SUC H AS SHARE PREMIUM ACCOUNT. IT HAS HELD THAT AAD IS NOT A RESERVE CREA TED OUT OF PROFIT SINCE AAD IS NOT INCOME BUT A LIABILITY. IF THE CONTENTIO N OF THE REVENUE AS IS BEING ARGUED IS TAKEN TO THE LOGICAL CONCLUSION, TH EN AAD WILL BE INCOME AND HENCE PART OF PROFIT AND LOSS ACCOUNT. THE LIAB ILITY CREATED WILL BE A 'RESERVE' BY DEBIT TO THE PROFIT AND LOSS ACCOUNT. THE SUPREME COURT HAS CATEGORICALLY HELD THAT AAD IS NOT A 'RESERVE'. ONC E AAD IS CONSIDERED AS INCOME AS IS BEING ALLEGED BY REVENUE THE OBVIOUS I MPLICATION WILL BE THAT SUCH INCOME IN THE BALANCE SHEET IS A RESERVE. IT CAN'T BE THAT AAD IS AN INCOME AND THEN IT VANISHES. INCOME HAS TO BE CARRIED TO THE BALANCE SHEET AND SUCH INCOME CARRIED TO BALANCE SH EET WILL FORM PART OF THE 'RESERVE'. SINCE 'AAD' HAS BEEN HELD BY SUPR EME COURT IS NOT A RESERVE, THIS CONTENTION OF THE REVENUE CAN'T BE AC CEPTED. IT IS TO BE FURTHER NOTED THAT SUPREME COURT HAS NOT STOPPED BY JUST SAYING THAT AAD IS NOT A RESERVE. IT HAS GONE FURTH ER TO DEFINE THE NATURE OF AAD AND HELD THAT IT IS A LIABILITY A ND IS TO BE DISCHARGED IN FUTURE AS CAN BE SEEN FROM THE FOLLOW ING OBSERVATIONS: 'AAD IS NOT MEANT FOR AN UNCERTAIN PURPOSE. AAD IS AN AMOUNT THAT IS UNDER OBLIGATION, RIGHT FROM THE INCEPTION, TO GET ADJUSTED IN THE FUTURE, HENCE, CANNOT BE DESIGNATED AS A RESERVE. A AD IS NOTHING BUT AN ADJUSTMENT BY REDUCING THE NORMAL DEPRECIATION I NCLUDIBLE IN THE FUTURE YEARS IN SUCH A MANNER THAT AT THE END OF US EFUL LIFE OF THE PLANT (WHICH IS NORMALLY 30 YEARS) THE SAME WOULD B E REDUCED TO NIL. THEREFORE, THE ASSESSEE CANNOT USE THE AAD FOR ANY OTHER PURPOSE ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 8 (WHICH IS POSSIBLE IN THE CASE OF A RESERVE) EXCEPT TO ADJUST THE SAME AGAINST FUTURE DEPRECIATION SO AS TO REDUCE THE TAR IFF IN THE FUTURE YEARS.' IN VIEW OF THE CATEGORICAL FINDING OF THE SUPREME C OURT WE HOLD THAT THE CIT(A) WAS CORRECT IN HOLDING THAT ADVANCE AGAINST DEPRECIATION CANNOT BE ADDED UNDER THE COMPUTATION OF THE NORMAL INCOME. THE ORDER OF CIT(A) IS UPHELD AND THE APPEALS OF T HE REVENUE ARE DISMISSED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WE FI ND THAT THE FACTS OF THE PRESENT CASE ARE PARI-MATERIA TO THE FACTS BEFO RE THE HONBLE SUPREME COURT AS WELL AS BEFORE THE COORDINATE BENC H REFERRED SUPRA AND THE LATTER DECISION HAS BEEN RENDERED IN THE CO NTEXT OF TAXABILITY OF ADVANCE AGAINST DEPRECIATION UNDER THE NORMAL PROVI SIONS OF THE ACT. THE LD CIT(A) HAS RIGHTLY FOLLOWED THE RATIO LAID D OWN IN THE SAID DECISIONS. WE DONOT FIND ANY INFIRMITY IN THE ORDE R OF THE LD CIT(A) AND THE SAME IS HEREBY CONFIRMED. THE GROUND TAKEN BY THE REVENUE IS THUS DISMISSED. 5. IN LIGHT OF ABOVE, GIVEN THAT THERE ARE NO CHANG ES IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT SEE ANY INFIRM ITY IN THE ORDER OF LD. CIT(A) WHO HAS FOLLOWED THE DECISION OF HONBLE SUPREME COURT IN CASE OF NATIONAL HYDRO ELECTRIC POWER CORPORATION L TD. VS. CIT 320 ITR 374 AS WELL AS THE DECISION OF THE CO-ORDINATE BENC H IN CASE OF ACIT VS. NHPC LTD. 67 SOT 130 AND THE FACT THAT THE SAME IS COVERED BY OUR OWN DECISION REFERRED SUPRA. ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 9 6. IN THE RESULT, THE SOLE GROUND OF APPEAL IN ITA NO. 487-JP-2018 AND GROUND NO. 1 IN ITA NO. 488-JP-2018 OF THE REVE NUES APPEAL IS HEREBY DISMISSED. 7. IN ITA NO. 488-JP-2018, THE GROUND NOS. 2 AND 3 TAKEN BY THE REVENUE READS AS UNDER:- (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE DISALL OWANCE OF RS. 49,87,507/- MADE FOR DEPOSITING THE EMPLOYEES CONT RIBUTION TO PF & ESI BEYOND THE PRESCRIBED TIME LIMIT PROVIDED IN TH E RESPECTIVE ACTS. (III) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT THE EM PLOYEES CONTRIBUTION TO PF & ESI ARE GOVERNED BY THE PROVISIONS OF SECTI ON 43B AND NOT BY SECTION 36(1)(VA) R.W.S 2(24)(X) OF THE INCOME TAX ACT, 1961. 8. THE LD. CIT(A) HAS RETURNED A FINDING THAT CONTR IBUTION TO PF AND ESI HAS BEEN PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. THE SAID FINDINGS REMAIN UNCONTROVERTED BEFORE US. FOLLOWING THE DECISIONS OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF JAIPUR VIDYUT VITRA N NIGAM LTD 265 CTR 62 AND UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LTD 265 CTR 59, HE HAS ALLOWED THE CLAIM OF THE ASSESSEE. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO, FOLLOWING THE DECISION S OF THE HONBLE RAJASTHAN HIGH COURT REFERRED SUPRA, HAS DIRECTED T HE DELETION OF ITA. NO. 487 & 488/JP/2018 DCIT, JAIPUR VS. M/S RAJASTHAN RAJYA VIDHYUT UTPADA N NIGAM LTD., JAIPUR 10 DISALLOWANCE SO MADE BY THE AO. IN THE RESULT, THE GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENU E ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/06/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/06/2018. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DCIT, CIRCLE-06, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S RAJASTHAN RAJYA VIDHYUT UTPADAN NIGAM LTD., JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA. NO. 487 & 488/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR