The DCIT, Circle-1(1), Baroda V. M/s. Gujarat State Fertilisers & Chemicals Ltd., Baroda

ITA 729/AHD/2010

• Counselvise Citation: 72920514 RSA 2010
• Duration Of Justice: 5 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R J PATEL
• Assessee Lawyers: SANJAY R SHAHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.729/AHD/2010 ( / ASSESSMENT YEAR : 2007-08) THE DCIT CIRCLE-1(1) BARODA / VS. GUJARAT FERTILIZER & CHEMICALS LTD. PO FERTILIZER NAGAR DIST.BARODA ./ ./ PAN/GIR NO. : AAACG 7996 C ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI R.J. PATEL, CIT-DR #' % $ / RESPONDENT BY : SHRI SANJAY R.SHAH, AR &'( % ) / DATE OF HEARING 21/09/2015 *+, % ) / DATE OF PRONOUNCEMENT 21/10/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS PRESENT APPEAL WAS DISPOSED OF VIDE TRIBUNAL S ORDER DATED 05/07/2013. SUBSEQUENTLY, THE REVENUE PREFERRED A MISCELLANEOUS APPLICATION NO.59/AHD/2014 STATING THEREIN THAT GRO UND NO.7(A) WAS NOT DECIDED BY THE TRIBUNAL, THEREFORE THE TRIBUNAL WAS PLEASED TO MODIFY THE ORDER DATED 20/07/2015; THEREBY THE PRESENT APPEAL IS FIXED FOR HEARING ITA NO.729 /AHD /2010 THE DCIT VS. GUJARAT STATE FERTILIZER & CHEMICALS LTD. ASST.YEAR 2007-08 - 2 - FOR THE PURPOSE OF DISPOSING OF GROUND NO.7(A). GR OUND NO.7-A OF REVENUES APPEAL READS AS UNDER:- 7(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADJUSTMENT OF BOOK PROFIT U/S.115JB BY THE ESTIMATED GRATUITY PROVISION OF RS.3,73,68,158/ - MADE ON THE BASIS OF ACTUARIAL VALUATION, WHICH IS AN UNASCERTAINED L IABILITY AS SPECIFICALLY SETTLED IN THE CASE OF SHREE SAJJAN MILLS LTD. VS. CIT 156 ITR (SC) & INDIAN MOLASSES CO.PVT.LTD.A VS. CIT 37 ITR 66 (SC) . 2. THE LD.CIT-DR SUBMITTED THAT THE LD.CIT(A) FAILE D TO CONSIDER THE JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE C ASE OF SHREE SAJJAN MILLS LTD. VS. CIT REPORTED AT 156 ITR 585(SC), WHE REIN THE HONBLE APEX COURT HAS HELD THAT THE PROVISION FOR GRATUITY IS NOT ASCERTAINED LIABILITY, THEREFORE THE SAME OUGHT TO HAVE BEEN AD DED FOR COMPUTING THE BOOK PROFIT U/S.115JB OF THE I.T.ACT. 2.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL PASSED FOR AY 2005-06 IN ASSESSEES OWN CA SE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY ISSUE LEFT WITH US FOR DECISION IS WHETHER THE PROVISION FOR GRATUITY IS ASCERTAINED LIABILITY OR NOT FOR THE PU RPOSE OF COMPUTING THE BOOK PROFIT U/S.115JB OF THE ACT. THE REVENUE HAS PLACED RELIANCE ON THE JUDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF SHREE SAJJAN MILLS LTD. VS. CIT REPORTED AT 156 ITR 585(SC), WHE REIN THE HONBLE ITA NO.729 /AHD /2010 THE DCIT VS. GUJARAT STATE FERTILIZER & CHEMICALS LTD. ASST.YEAR 2007-08 - 3 - APEX COURT HAS HELD THAT THE PROVISION FOR GRATUITY IS NOT ASCERTAINED LIABILITY, THEREFORE THE SAME OUGHT TO HAVE BEEN AD DED FOR COMPUTING THE BOOK PROFIT U/S.115JB OF THE I.T.ACT. THE CONTENTI ON OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT THE ISSUE MAY BE DECIDED IN FA VOUR OF THE ASSESSEE BY THE DECISION OF HONBLE ITAT PASSED FOR AYS 2004-05 & 2005-06. HE DREW OUR ATTENTION TOWARDS PAPER-BOOK AT PAGE NOS.1 38 & 152 RESPECTIVELY. THERE IS NO DISPUTE WITH REGARD TO THE FACTS THAT IN THE EARLIER YEARS, THE SAME ISSUE WAS DECIDED BY THE CO ORDINATE BENCH (ITAT A BENCH, AHMEDABAD) IN FVOUR OF THE ASSESSEE IN I TA NOS.4522 & 4557/AHD/2007/AHD/2007 AND 3688 & 3864/AHD/2008 FOR AY 2004-05 AND AY 2005-06 RESPECTIVELY, BY OBSERVING AS UNDER: - UNDER THE IDENTICAL FACTS, FOR AY 2004-05 IN ITA NO .4557/AHD/2007, THE TRIBUNAL HELD AS UNDER:- 39. LD.DR OF THE REVENUE SUPPORTED THE ORDER OF A SSESSING OFFICER, WHEREAS LD.AR OF THE ASSESSEE SUPPORTED THE ORDER O F LD.CIT(A). HE FURTHER SUBMITTED THAT THIS ISSUE IS SQUARELY COVER ED IN FAVOUR OF ASSESSEE BY THE TRIBUNALS DECISION IN ASSESSEES O WN CASE IN AY 2003- 04. LD.DR OF THE REVENUE COULD NOT POINT OUT ANY D IFFERENCE IN FACT IN PRESENT YEAR. HENCE, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW. THIS GROUND OF REVENUE IS ALSO REJECTED. UNDER THE IDENTICAL FACTS, FOR AY 2005-06 IN ITA NO .3864/AHD/2008 THE TRIBUNAL HELD AS UNDER:- 88. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT SIMILAR ISSUE WAS DECIDED BY US IN FAV OUR OF ASSESSEE IN AY 2004-05 WHILE DECIDING GROUND NO.6(A) ON REVENUES APPEAL IN THAT YEAR AND THIS DECISION BY US IS BY FOLLOWING THE TR IBUNALS ORDER IN ASSESSEES OWN CASE FOR AY 2002-03 AND NO DIFFERENC E IN FACTS COULD BE ITA NO.729 /AHD /2010 THE DCIT VS. GUJARAT STATE FERTILIZER & CHEMICALS LTD. ASST.YEAR 2007-08 - 4 - POINTED OUT BY LD.DR OF THE REVENUE. HENCE, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT YEAR. THIS GROUND OF REVENUES APPEAL IS ALSO REJECTED. 4.1 FROM THE ABOVE, IT IS EVIDENT THAT THIS ISSUE W AS DULY EXAMINED BY THE COORDINATE BENCH IN THE EARLIER YEARS IN THE CA SE OF THE ASSESSEE. THEREFORE, TAKING A CONSISTENT VIEW, WE HEREBY DISM ISS THIS GROUND OF REVENUES APPEAL. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 21 ST DAY OF OCTOBER, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 21/ 10 /2015 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-I, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD