I.T.O., Aligarh V. Sr. Accounts Officer, Aligarh

ITA 54/AGR/2011

• Counselvise Citation: 5420314 RSA 2011
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-10-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.54/AGR/2011 ASSESSMENT YEARS: 2008-09 INCOME TAX OFFICER (TDS & SURVEY), VS. SR. ACCOU NTS OFFICER, ALIGARH. HARDUAGANJ THERMAL POWER PROJECT, VILLAGE-KASIMPUR, ALIGARH (U.P.) (PAN: AAACU 4749 D). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A. K. SHARMA, JR. D.R. RESPONDENT BY : SHRI RAJ KUMAR, C.A. DATE OF HEARING : 13.10.2011 DATE OF PRONOUNCEMENT : 13.10.2011 ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E IMPUGNED ORDER DATED 11.11.2010 PASSED BY THE LD. CIT(A), GHAZIABAD FOR THE ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS OF APPEAL :- 1. THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN CAN CELLING THE ORDER DATED 18.03.2009 PASSED BY THE ITO(TDS & SURV EY), ALIGARH AND IN DIRECTING THAT THE ASSESSEE (EMPLOYER) IS A STATE GOVERNMENT AND THEREFORE THE VALUATION OF RENT FREE ACCOMMODAT ION OF ITS EMPLOYEES IS COVERED UNDER SL. NO.1 2(A)(III) OF TA BLE 1 OF INCOME TAX ITA NO.54/AGR/2011 A.Y. 2008-09 2 RULES 1962, IGNORING THE ASSESSEES STATUS IS ACTUA LLY THAT OF THE PUBLIC SECTOR COMPANY U/S 2(36A) OF THE INCOME TAX ACT, 1961. 2. IN DIRECTING SO, CIT(A) HAS RELIED UPON THE ORDE R OF HONBLE ITAT, AGRA BENCH, AGRA, IN ITA NO.67/AGR./2008 DATE D 8 TH OCTOBER, 2009 IN ASSESSEES CASE FOR A.Y. 2006-07 WHICH HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND FILED APPEAL BEFORE THE HONB LE ALLAHABAD HIGH COURT WHICH IS PENDING FOR ADJUDICATION. 2. THE FACTS NARRATED BY THE DEPARTMENT ARE NOT DIS PUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS ALLOWED THE APPEAL OF THE ASSESSEE BY FOLLOWING THE ORDER DATED 08.10.2009 PASSED BY THIS BENCH IN ASSE SSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07 IN ITA NO.673/AGR/2008. HE , THEREFORE, REQUESTED THAT THE APPEAL FILED BY THE DEPARTMENT MAY BE DISMISSED . 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY, THE ORDER DATED 08.10.2009 OF THIS BENCH PASSED IN ASSESSEES OWN CASE IN ITA NO.673/AGR/2008 FOR THE ASSESSMENT YEAR 2006-07. WE ALSO FIND THAT THE LD. FIRST APPELLATE AUTHORITY HAS ALL OWED THE APPEAL OF THE ASSESSEE BY ITA NO.54/AGR/2011 A.Y. 2008-09 3 FOLLOWING THE AFORESAID ORDER OF THIS BENCH. THE R ELEVANT PORTION OF THE ORDER OF THE CIT(A) AT PARAGRAPH NO.4, PAGE NOS. 6 & 7 IS RE PRODUCED AS UNDER :- 4. I HAVE CONSIDERED APPELLANTS SUBMISSIONS AND A LSO THE MATERIAL AVAILABLE ON RECORD. A SIMILAR ISSUE WAS INVOLVED IN APPELLANTS OWN CASE FOR ASSESSMENT YEAR 2006-07, W HEREIN, UNDER SIMILAR CIRCUMSTANCES, THE ITO (TDS & SURVEY), ALIG ARH LEVIED SHORT DEDUCTION OF TAX AND INTEREST THEREON U/S 201/201(1 A). IN FIRST APPEAL, MY PREDECESSOR CIT(APPEAL) CONFIRMED THE ACTION OF THE ASSESSING OFFICER, BUT IN SECOND APPEAL FILED BY THE ASSESSEE , THE HONBLE ITAT, AGRA BENCH, AGRA, IN ITA NO.673/AGR./2008 DATED 8 TH OCTOBER, 2009, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. T HE RELEVANT PARA OF THE ORDER OF HONBLE ITAT, REFERRED TO ABOVE, IS RE PRODUCED HEREUNDER:- 6. WE ARE CONVINCED WITH THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE SHRI RAJ KUMAR THAT AS PER RULE 3 OF THE INCOME TAX RULES THE CASE OF THE ASSESSEE FALLS IN TABLE I(1) OF RULE 3 OF INCOME TAX RULES. IN THIS REGARD, THE ASSESSEE HAS SUBMITTED THAT ACCOUNTS OF THE ASSESSEE ARE BEING A UDITED THROUGH ACCOUNTANT GENERAL U.P. WHICH SPECIALLY AUD ITS THE AFFAIRS OF GOVERNMENT DEPARTMENTS ONLY. COPY OF T HE LETTER FROM THE OFFICE OF CAG WAS PLACED ON RECORD. THE UT TAR PRADESH ELECTRICITY REFORMS ACT HAS BEEN PASSED IN PURSUANCE OF ARTICLE 348 OF CONSTITUTION OF INDIA BY THE GOVE RNOR OF UTTAR PRADESH. THE SAID ACT PROVIDES FOR THE EVIDENCE THA T THE EMPLOYEES OF HARDUAGANJ THERMAL POWER STATION ARE T HE GOVERNMENT EMPLOYEES AFTER RESTRUCTURING OF THE DIV ISIONS. THE PREAMBLE OF THE SAID ACT PASSED BY THE UTTAR PR ADESH LEGISLATURE IS TO PROVIDE FOR THE RESTRUCTURING OF THE ELECTRICITY INDUSTRY IN THE STATE OF UTTAR PRADESH ... AND SUPP LY OF ELECTRICITY IN THE STATE. THE CONDITION OF SERVICE UNDER SECTION 23(7) OF THE ACT RECOGNIZE THE CONTINUITY OF THE SE RVICE IN ALL RESPECT. UNDER SECTION 23(8) OF THE ACT IT HAS BEE N PROVIDED THAT ALL THE SUITS/PROCEEDINGS INSTITUTED BY OR AGA INST THE BOARD MAY BE CONTINUED OR INSTITUTED BY OR AGAINST THE ST ATE GOVERNMENT OR CONCERNED TRANSFEREE. MANY OTHER EVI DENCES WERE PLACED ON RECORD ESPECIALLY A NOTIFICATION NO. 151/P- 1/2000-24 DATED 14.01.2000 SIGNED BY THE SECRETARY OF THE UTTAR PRADESH GOVERNMENT FOR DECLARING THE UTTAR PR ADESH ITA NO.54/AGR/2011 A.Y. 2008-09 4 POWER CORPORATION LIMITED AS A GOVERNMENT COMPANY W HICH EVIDENCES THE HARDUAGANJ THERMAL POWER STATION, KAS IMPUR AS A GOVERNMENT ORGANIZATION VIS A VIS EMPLOYEES ARE GOVERNMENT EMPLOYEES AFTER RESTRUCTURING. THEREFOR E, IN THE CIRCUMSTANCES AND FACTS OF THE CASE THE VALUATION O F RENT-FREE ACCOMMODATION OF THE ASSESSEE IS COVERED IN TABLE-I (1) OF RULE 3 OF INCOME-TAX RULES, 1962 AND THE EMPLOYER IS A S TATE GOVERNMENT AND ACCORDINGLY THE VALUATION AS CLAIMED IS DIRECTED TO BE ALLOWED. THUS, ALL GROUNDS RAISED B Y THE ASSESSEE ARE ALLOWED. 6. AFTER GOING THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS ORDER PASSED BY THIS BENCH (SUPRA), WE ARE OF THE C ONSIDERED OPINION THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED BY THIS BENCH I N FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAID DECISION, THE APPEA L FILED BY THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 13.10.2011). SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 13 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY