The Jt.CIT, Circle-1(1)(1), Vadodara V. Gujarat Energy Transmission Corpn. Ltd., Vadodara

MA 5/AHD/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4011 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 15; 115JB; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER M . A. N o . 05/ A hd / 20 2 1 ( I n I TA N o . 3 35 6/ A hd/ 2 0 15 ) (A s se s s m e n t Y e a r : 2 0 12 - 1 3 ) J C I T( O SD ) , C ir cl e - 1 ( 1) ( 1) , V a d o da r a V s . M/ s . G u j ar a t En er g y Tr a ns m i ss io n Co r p n. Lt d . , Sar d a r Pa tel , V i d yu t bha va n, R a c e Co ur s e C ir c l e, V a d od a r a - 3 90 0 0 7 [P A N N o. A A B C G 4 0 29 R] (Appellant) .. (Respondent) Appellant by : Shri Manish J. Shah, A.R. Respondent by : Shri R. R. Makwana, Sr. D. R. D a t e o f H e a r i n g 01/04/2022 D a t e o f P r o n o u n c e m e n t 10/06/2022 O R D E R PER Ms. MADHUMITA ROY - JM: 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 - 2 - MA No.05/Ahd/2021(In ITA No.3356/A/15) JCIT vs. Gujarat Energy Transmission Cropn. Ltd. Asst.Year – 2012-13 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. 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: - 3 - MA No.05/Ahd/2021(In ITA No.3356/A/15) JCIT vs. Gujarat Energy Transmission Cropn. Ltd. Asst.Year – 2012-13 “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 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 - 4 - MA No.05/Ahd/2021(In ITA No.3356/A/15) JCIT vs. Gujarat Energy Transmission Cropn. Ltd. Asst.Year – 2012-13 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 result, Misc. Application filed by the Revenue is dismissed. This Order pronounced in Open Court on 10/06/2022 Sd/- Sd/- (ANNAPURNA GUPTA) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 10/06/2022 TANMAY, Sr.PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A). 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, स या पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 13/05/22 2. Date on which the typed draft is placed before the Dictating Member 13/05/2022 3. Other Member... 4. Date on which the approved draft comes to the Sr.P.S./P.S ... 08 /06/2022 5. Date on which the fair order is placed before the Dictating Member for pronouncement... 6. Date on which the fair order comes back to the Sr.P.S./P.S 10 /06/2022 7. Date on which the file goes to the Bench Clerk 10 /06/2022 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..................