The ACIT, Circle-1(1)(1), Vadodara V. M/s. Gujarat Energy Transmission Corp. Ltd., Vadodara

ITA 548/AHD/2022

AI Insights

The case involves the Income Tax Department's appeal against the Gujarat Energy Transmission Corporation Ltd. concerning the assessment year 2012-13. The Department sought to challenge the CIT(A)'s decision which had earlier been upheld by the ITAT. The Department's appeal was initially dismissed due to the grounds being raised under the normal provisions of the IT Act instead of under Section 115JB, which pertains to the specific issues of prior period expenses and capital grants. After the dismissal, the Department filed a Miscellaneous Application to amend the grounds, which was also dismissed. Subsequently, the Department filed a second appeal, which was the subject of the current proceedings. The ITAT dismissed this second appeal, citing the principle of res judicata and the fact that the issues had already been adjudicated.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135689 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 27-02-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2022
• Laws Referred To: Income-Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 115JB; 254(2)

Judgement Text

आयकर आयकरआयकर आयकर अपीलीय अपीलीयअपीलीय अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद 瀈यायपीठ 瀈यायपीठ瀈यायपीठ 瀈यायपीठ‘‘सी सीसी सी’’अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE MRS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND MRS. MADHUMITA ROY, JUDICIAL MEMBER ITA No. 548/Ahd/2022 िनधा榁रणवष榁/Assessment Year: 2012-13 ACIT, Circle-1(1)(1), Vadodara Vs. M/s. Gujarat Energy Transmission Corp. Ltd., Sardar Patel Vidyut Bhavan, Race Course Circle, Vadodara-390007 PAN : AABCG 4029 R अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸/ (Appellant) 灹瀄 灹瀄 灹瀄 灹瀄 यथ牸 यथ牸यथ牸 यथ牸/ (Respondent) Assessee by : Shri M.J. Shah & Shri Rushin Patel, ARs Revenue by : Shri A.P. Singh, CIT-DR सुनवाई क琉 तारीख/Date of Hearing : 28.02.2023 घोषणा क琉 तारीख /Date of Pronouncement: 26.05.2023 आदेश आदेशआदेश आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: The present Department’s appeal ,against the order passed by the learned Commissioner of Income-tax (Appeals)-1, Vadodara [hereinafter referred to as “CIT(A)” for short] dated 22.09.2015 under Section 250(6) of the Income-Tax Act, 1961 [hereinafter referred to as "the Act" for short] pertaining to Assessment Year (AY) 2012-13, has been listed before us for deciding as to whether it is maintainable or not; i.e. the purpose of listing the present appeal is for deciding its maintainability alone. 2. The reason for the same being that when the present appeal was filed by the Department, the Registry noted that the Department had already earlier filed an appeal against the order of the learned CIT(A) for the impugned year, i.e A.Y 2012-13, which stood disposed of by the ITAT vide its order dated 31.01.2020. That subsequently the Department had filed a Miscellaneous Application (MA) in the order passed by the ITAT stating that 2 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 certain grounds had remained to be adjudicated, which MA was also dismissed by the ITAT vide its order dated 10.06.2022 noting that the said grounds were approved by the PCIT after the order was passed by the ITAT. The Registry, therefore, noted that the Department has now filed a second appeal against the order of the learned CIT(A) which was not permissible in law and even otherwise the second appeal was only an attempt to raise issues which had already been rejected for consideration by the ITAT. A note to this effect was prepared by the Registry when the present appeal was filed by the Department and was put up before the Hon’ble Vice-President, ITAT for his directions as to whether the appeal was to be entertained or rejected at the outset itself, to which the Hon’ble Vice-President, ITAT, Ahmedabad Zone, directed the Bench to decide the maintainability of the appeal and accordingly the present appeal was listed before us. 3. The contents of the note of the Registry in this regard put up before the Hon’ble Vice-President, ITAT are reproduced hereunder:- “ITA No. 3356/Ahd/2015 for AY 2012-13 in the case of Department Vs. M/s. Gujarat Energy Transmission Corpn Ltd, Vadodara was heard and disposed of by order dated 31.01.2020 by ITAT, Ahmedabad 2. Against the said Tribunal order, Department preferred Miscellaneous Application bearing number MA No. 05/Ahd/2021 inter alia that the grounds to be adjudicated were different from that raised in the appeal and the amended grounds were authorized by the PCIT-1, Vadodara as under:- “1. Whether on the facts and in the circumstances of the case and in law, the CIT(A) erred in deleting the additions made by AO on account of prior period expenses u/s 115JB of the Act? 2. On the facts and in the circumstances of the case and in law, whether the CIT(A) has erred in deleting the addition made by AO on account of Capital grant u/s 115JB of the Act?” ` The above MA was heard and disposed of vide order dated 10.06.2022. While dismissing the MA filed by the Department, the above two grounds were also dealt with by the Bench noting that the amended grounds were approved by the learned PCIT after the order was passed by the ITAT holding as under:- 3 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 “7. Having heard the rival submissions made by the respective parties and having regard to the records available before us we find that the most peculiar fact as it appears from the Miscellaneous Application filed by Revenue is this that after the disposal of the appeal by the Coordinate Bench on 31.01.2020 the PCIT has approved amendment of grounds in the said appeal and to adjudicate the same that too for final disposal by setting aside the issue to the file of the AO. At this stage such stand taken by the Revenue is found to be of no basis and frivolous too. With this observation we dismiss the Miscellaneous Application filed by the Revenue.” 3. The said MA was disposed of vide ITAT order dated 10.06.2022. The Department did not prefer any appeal/application before Hon’ble High Court. 4. Now the Department has filed a fresh appeal in the case of same assessee for the same assessment year and has raised the same grounds which have already been rejected for consideration by ITAT in MA No. 05/Ahd/2021 dated 10.06.2022 5. Inadvertently the appeal was registered on the basis of appeal papers sent by the Department by post and the appeal number was also allotted viz. ITA No. 548/Ahd/2022 by this office by mistake. 6. As both the appeals as well as MA pertaining to the same assessee for AY 2012-13 have already been disposed of by ITAT, the appeal by the Department for same assessment year and for the same assessee cannot be filed afresh by the Department and the appeal papers so received in the case of above assessee for AY 2012-13, if approved, may be returned to the Department cancelling the registration number No.548/Ahd/2022. 7. Department has filed this appeal against the principle of res judicata knowing well that the earlier appeal as well as M.A. is disposed of by ITAT. It appears that Department has filed this disposed appeal again to cover up the delay / time barring before Hon’ble High Court. 8. In case this appeal is listed before the Bench after registration then also it will be dismissed as the appeal is already disposed of by earlier order but in that case Department will get time to file appeal before Hon'ble High Court. Further, if Bench entertain such appeal which is already adjudicated then assessee may also start filing such appeal afresh to cover up their earlier lapse/mistake etc. 9. In view of the above facts, this is submitted before the Hon'ble Vice President for kind approval to return these appeal papers to Department after cancelling the Registration Number.” 4 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 4. When the matter came up for hearing first on 23.02.2023, the learned Departmental Representative (DR) sought adjournment stating that the regular CIT-DR was not available. On the next date also, 27-02-23, the matter was adjourned on the oral request of the learned DR, who when apprised with the facts of the case that the Department was seeking to file a second appeal against the order of the learned CIT(A) which was not permissible in law, he sought time to seek directions from his senior officers in this regard. Thereafter, the case was listed for hearing on 28.02.2023, when the learned CIT-DR though admitted that the present appeal was a second appeal filed by the department against the order of the Ld.CIT(A), however he stated before us that he was not withdrawing the appeal and was pressing for the entertainment of the appeal since the Department had inadvertently not been heard on grounds which it wanted to raise in its original appeal. He stated that this appeal being filed after the disposal of the initial appeal filed by the department, it was time barred by 2557 days and an application was filed by the Department seeking condonation of delay. That the said application was self-explanatory of the reason for filing this appeal and he stated to rely on the contents of the same for the stand of the Department regarding the maintainability of this appeal. Our attention was drawn to the contents of the same as under:- “Condonation of delay in filing of Appeal in the case of M/s. Gujarat Energy Transmission Corpn, Ltd. (PAN:AABCG4029R), for A.Y. 2012-2013:- 1. It is submitted that the Revenue had preferred an appeal bearing ITA No.3356/Ahd/2015 against the appellate order dated 22.09.2015 of Ld.CIT(Appeals), wherein ground no. 3 & 4 raised inadvertently towards Prior Period Expenses and Capital Grant respectively under normal provision of the IT Act instead of u/s.H5JB of the IT Act. Taking cognizance to miscommunication of the facts, Revenue had filed revised grounds of appeal vide Authorization memo dated 04.10.2019 issued by the Pr.CIT Vadodara-1, Vadodara. The appeal of the revenue stands dismissed and disposed off 5 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 accordingly vide order dated 31.01.2020 without adjudication of revised grounds of appeal filed by the revenue. 2. Since, revised grounds of appeals filed by the revenue were not adjudicated vide order dated. 31.01.2020, thus revenue had preferred Miscellaneous Application (bearing M.A No. 05/Ahd/2021) on 29.01.2021 vide Authorization Memo dated 31.12.2020 issued by the Pr.CIT Vadodara-1, Vadodara on the following grounds: (i) Whether on the facts and in the circumstances of the case and in law, the CIT(A) erred in deleting the addition made by A.O on account of prior period expenses u/s.115JB of the Act ? (ii) On the facts and in the circumstances of the case and in law, whether the CIT(A) has erred in deleting the addition made by AO on account of Capital grant u/s. 115JB of the Act? Vide the appellate order dated 10.06.2022, Miscellaneous application of the revenue stand dismissed and disposed off holding that the M.A filed by the Revenue is that after the disposal of the appeal by the co-ordinate bench on 31.01.2020, the Pr.CIT has approved amendment of grounds in the said appeal and to adjudicate the same, that too for final disposal by setting aside the issue to the file of the A.O. Thus, at this stage such stand taken by the Revenue is found to be of no basis and frivolous. 3. It is submitted that the Revenue had inadvertently raised the said grounds of appeal under the normal provision instead of section 115JB of the IT Act and M.A filed by the Revenue is dismissed holding that disposal of the appeal by the co-ordinate bench on 31.01.2020, the PCIT has approved amendment of grounds in the said appeal and to adjudicate the same, that too for final disposal by setting aside the issue to the file of the A.O. Thus, looking to the facts of the case it is preyed that the revenue may given an opportunity to press the said grounds which are remains un adjudicated due to inadvertent/miscommunication of the facts by the revenue. The inadvertent/miscommunication of the facts may kindly be treated as genuine and bonafide and the same is neither deliberate nor willful. The applicant therefore, prays that: (a) Your Lordship be pleased to condone the delay of days in filing the abovementioned appeal based on the revised grounds of appeal against the order of Ld. CIT(Appeals) dated 22.09.2015.” 5. The learned CIT-DR, referring to the same, contended that in the original appeal filed by the Department against the order of the learned CIT(A) for the impugned year, it had inadvertently raised wrong grounds on 6 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 the issue of deletion of addition made on account of Prior Period Expenses and Capital Grant. He contended that while the Department was aggrieved by the deletion of addition made on the above two counts to the book profits of the assessee under Section 115JB of the Act, it had inadvertently raised grounds relating to deletion of addition with respect to the computation of income as per the normal provisions of the Act. That the Department had sought to rectify this mistake vide a Miscellaneous Application filed which was rejected by the ITAT on the grounds that the revised grounds were approved by the learned PCIT after passing of the order by the ITAT and, therefore, there was no error in the order of the ITAT as such. That since on account of the aforementioned facts, the Revenue was unable to plead its case on the correct issue and premise; therefore, the present appeal was filed. It was pleaded that since the Revenue had inadvertently been unable to raise its grievance against the order of the Ld.CIT(A) on the correct issues, hence this second appeal of the department raising the correct grounds be entertained to meet the interest of justice. 6. The learned Counsel for the assessee Mr. Manish Shah vehemently opposed to the maintainability of the appeal stating... (i) that there is no recourse in law allowing repeated appeals to be filed against the order; (ii) that sufficient time is afforded under law for filing appeals carefully and thoughtfully and any errors therein are also allowed to be rectified within limitation prescribed in law; (iii) that there is no provision under any law allowing appeals to be filed repeatedly against an order, which would only result in a chaotic situation and anarchy; 7 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 (iv) that on the principle of res judicata the appeal should be dismissed as not maintainable. 7. We have heard both the parties. It is not denied that the present appeal is a second appeal which has been filed by the Department against the order of the learned CIT(A); that the original appeal filed by the Department against the order of the learned CIT(A) already stands adjudicated by the ITAT vide its order dated in ITA No. 3356/Ahd/2015 dated 31.01.2020 . It is also an admitted fact that a Miscellaneous Application (MA), filed by the Department in the order of the ITAT for not entertaining certain revised grounds was dismissed by the ITAT noting that there was no mistake in the order of the ITAT for not entertaining the said grounds since they were approved by the learned PCIT after passing of the order by the ITAT. It is relevant, at this juncture, to reproduce the order of the ITAT in the Miscellaneous Application filed by the Department in MA No.05/Ahd/2021 dated 10.06.2022:- “The instant Miscellaneous Application under Section 254(2) of the Income Tax Act, 1961 has been preferred by the Revenue with a prayer for setting- aside the issue to the file of the AO in ITA No. 3356/Ahd/2015 which has already been disposed of on 31.01.2020. In order to justify their prayer the Revenue has stated the following facts: “In the case of M/s. Gujarat Energy Transmission Corpn. Ltd. for Asst. Year 2012-13, an appeal was filed by the Revenue under appeal in ITA No. 3356/Ahd/2015 before the Hon’ble ITAT against the order of CIT(Appeals). 2. In the original Appeal Memo 20/11/2015 revenue raised four (04) grounds of appeal. Ground No. 3 related to addition of Rs. 408.01 Lacs on account of prior period expenses. Ground no. 4 related to capital grant of Rs. 259563950/-. Both the grounds were raised under the normal provision of the IT Act. During the hearing department received letter CIT(DR)/(ITAT)-2/GETCL/ ‘B’ Bench/2018-19 dated 14.02.2019 stating that CIT(A) has already decided both the issue in favour of revenue. Hence, grounds of appeal need to be revised. Accordingly, Pr. CIT-1, Vadodara issued revised grounds of appeal where in Ground no. 3 and 04 were deleted. 8 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 It is pertinent to mention that Ld. CIT(A) has deleted the addition on account of prior period expenses and capital grant u/s. 115JB of the IT Act. Further, the revenue has inadvertently raised ground no. 3 and 4 under normal provision of the Act instead of u/s. 115JB of the IT Act. Omission of Ground No. 03 and 04 was due to miscommunication.” 2. In the original Appeal Memo dated 20.11.2015 Revenue raised four grounds of appeal. Ground No. 3 related to addition of Rs. 408.01 lacs on account of prior period expenses. Ground No. 4 related to capital grant of Rs. 25,95,63,950/-. Both the grounds were raised under the normal provision of the Act. 3. During the pendency of the matter before us the department received a letter dated 14.02.2019 stating that Ld. CIT(A) has already decided both the issues in favour of the Revenue and therefore, grounds of appeal needed to be revised. Consequently, the Ld. PCIT, Vadodara issued revised grounds of appeal wherein Ground Nos. 3 & 4 were deleted. Subsequently, it came to the notice of the department that the Ld. CIT(A) has deleted the addition on account of prior period expenses and capital grant under Section 115 JB which was inadvertently challenged by way of Grounds Nos. 3 & 4 under the normal provision of the Act due to miscommunication as claimed by the Revenue before us. 4. The Miscellaneous Application has been preferred by the Revenue in ITA No. 3356/Ahd/2015 for A.Y. 2012-13 which was decided and order was pronounced on 31.01.2020 on the basis of the amended grounds of appeal authorized by the PCIT-1, Vadodara vide authorization memo dated 31.12.2020 with the following contents: “1. “Whether on the facts and in the circumstances of the case and in law, the CIT(A) erred in deleting the additions made by AO on account of prior period expenses u/s 115JB of the Act?” 2. “On the facts and in the circumstances of the case and in law, whether the CIT(A) has erred in deleting the addition made by AO on account of Capital grant u/s 115JB of the Act?”” 5. At the time of hearing of the instant appeal the Ld. Counsel appearing for the assessee submitted before us that there is no mistake apparent on the face of the records neither any submission to that effect in the Miscellaneous Application is filed by the Revenue. The Miscellaneous Application filed by the department is beyond limitation of six months as required under Section 254(2) of the Act. In the garb of amendment the Revenue has taken an attempt to pursue the Bench to adjudicate the issues which were never raised in the original application in ITA 9 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 No. 3356/Ahd/2015. Even otherwise the authorization given by the PCIT is after eleven months from the date of disposal of the appeal. With this submission the Ld. A.R. concluded that the Miscellaneous Application is not maintainable and liable to be dismissed. 6. On the other hand, the Ld. D.R. failed to controvert such submission made by the Ld. A.R. and to justify the prayer made by Revenue in the application filed before us. 7. Having heard the rival submissions made by the respective parties and having regard to the records available before us we find that the most peculiar fact as it appears from the Miscellaneous Application filed by Revenue is this that after the disposal of the appeal by the Coordinate Bench on 31.01.2020 the PCIT has approved amendment of grounds in the said appeal and to adjudicate the same that too for final disposal by setting aside the issue to the file of the AO. At this stage such stand taken by the Revenue is found to be of no basis and frivolous too. With this observation we dismiss the Miscellaneous Application filed by the Revenue.” 8. In the present appeal filed by the department, admittedly those very revised grounds which the department had sought adjudication of, but was dismissed by the ITAT in the MA filed by the department, have been raised. 9. The department admits to all the above facts and pleads that having inadvertently missed out on raising the correct grounds, the department be allowed to raise the same vide this second appeal filed, in the interest of justice. 10. It is clear therefore and is an admitted fact that this present appeal by the Department is nothing but a second appeal filed by the Department against the order of the learned CIT(A). And has been filed to seek adjudication of issues which the ITAT has already held as not maintainable, having been raised after the passing of order by the ITAT. The same cannot now be entertained before us by way of this second appeal. Clearly the assessee has exhausted all possible remedies available in law for adjudication of its revised grounds. A second appeal cannot be a remedy in law now for entertaining them, when all possible recourse as per law already stands 10 ITA No. 548/Ahd/2022 ACIT Vs. Gujarat Energy Transmission Corp Ltd. AY : 2012-13 admittedly exhausted. Undoubtedly the same is not permissible in law. There arises no question for entertaining this second appeal. 11. It is pertinent to mention that as per the Department’s own case, it seeks to raise grounds in this second appeal, which on account of its own negligence and laxity, it did not raise in the first appeal filed, waking up to its mistake only after the order of the ITAT was passed against its original appeal, when it sought approval of the Ld.PCIT to raise the correct grounds. Such attitude deserves no sympathy more particularly to the department who are well versed with the legal nuances. This appeal of the department is not maintainable, we hold. 11. In effect, the appeal of the Department is dismissed as not maintainable. Order pronounced in the open Court on 26 th May, 2023 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad; Dated 26/05/2023 **bt आदेश आदेशआदेश आदेश क琉 क琉क琉 क琉 灹ितिलिप 灹ितिलिप灹ितिलिप 灹ितिलिप अ灡ेिषत अ灡ेिषतअ灡ेिषत अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 灹瀄यथ牸灹瀄यथ牸 灹瀄यथ牸 / The Respondent. 3. संबंिधत संबंिधतसंबंिधत संबंिधत आयकर आयकरआयकर आयकर आयु猴 आयु猴आयु猴 आयु猴 / Concerned CIT 4. आयकर आयकरआयकर आयकर आयु猴 आयु猴आयु猴 आयु猴)अपील अपीलअपील अपील (/ The CIT(A)- 5. िवभागीय िवभागीयिवभागीय िवभागीय 灹ितिनिध 灹ितिनिध灹ितिनिध 灹ितिनिध ,आयकर आयकरआयकर आयकर अपीलीय अपीलीयअपीलीय अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण,/DR,ITAT, Ahmedabad, 6. गाड榁 गाड榁गाड榁 गाड榁 फाईल फाईलफाईल फाईल /Guard file. आदेशानुसार आदेशानुसारआदेशानुसार आदेशानुसार/ BY ORDER, TRUE COPY सहायक सहायकसहायक सहायक पंजीकार पंजीकारपंजीकार पंजीकार (Asstt.. Registrar) आयकर आयकरआयकर आयकर अपीलीय अपीलीयअपीलीय अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण ITAT, Ahmedabad