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Income Tax Appellate Tribunal, AHMEDABAD “C” BENCH
Before: SHRI PRADIP KUMAR KEDIA & SHRI MAHAVIR PRASAD
PER MAHAVIR PRASAD, JUDICIAL MEMBER
This appeal filed by the Revenue is directed against the order of the Ld. CIT(A), Gandhinagar, Ahmedabad dated 18.09.2017 pertaining to A.Y. 2013- 14 and following grounds have been taken:
2 . A.Y. 2013-14 1. Whether on the facts & circumstances of the case, the Ld CIT(A) was justified in deleting the determined book profit u/s. 115JB of the IT Act of Rs.3608.62 lacs/-.” 2. "Whether on the facts & circumstances of the case, the Ld CIT(A) has justified in treating the assessee as a local authority." 3. "Whether on the facts & circumstances of the case, the Hon'ble ITAT has justified in holding that the Board not being a company under the Companies Act 1956 is not coverable u/s.115JB of the I.T.Act even though the assessee Board was a Body corporate under the GWSSB Act 1979."
4. It is, therefore prayed that the order of the Ld.Commissioner of Income- tax(Appeals) may be set aside and that of the Assessing Officer be restored.
5. The appellant prays for leave, to amend or alter any ground or add a new ground which may be necessary.
Facts of the case are that assessee company established under the Gujarat Water Supply & Sewerage Board Act, 1978 and is a Gujarat Government undertaking. In the notes forming part of audited Balance Sheet-and Income & Expenditure Account for the year ended on 31st March, 2011, ft is stated that Section 42(2) of the Gujarat Water Supply & Sewerage Board Act, 1978 (GWSSB Act) stipulates that Assessee shall prepare balance sheet in such form and manner as the regulation requires. Further, Section 77 of the .said Act states that Board is empowered to make regulation with approval but no such regulation is so far made. Considering the same, appellant had prepared its Manual for maintaining books, of account and has prepared its accounts as per such Manual. Thus, it is evident that appellant has prepared Income & Expenditure account and not prepared Profit & Loss account as per Part :- II and III of Schedule - VI to the Companies Act, 1956. Further, it is an undisputed fact that appellant is established under Section 3 of the GWSSB Act arid as per Sub-section (3) of Section 3, appellant is accorded a status of local Authority as defined in Bombay General Clause Act, 1904 and it is not- floated/registered as per Provisions of Companies Act 1956, Further, appellant is not having share capital in the annual accounts but is having a corpus and all the activities of the 3 . A.Y. 2013-14 Board are undertaken/maintained from grants received from Central Government, State Government National and International Agencies, etc., which further proves that appellant is not a company registered under the Companies Act, 1956 and made an addition of Rs. 3608.62 lacs.
Against the said order, assessee preferred first statutory appeal before the ld. CIT(A) who allowed the appeal of the assessee.
Now Revenue has come before us.
Now question is before us is that whether MAT is applicable to the assessee and whether assessee is supposed to prepare account as per Schedule-VI of companies Act.
Similar matter came before the Co-ordinate Bench in assessee’s own case for A.Y. 2010-11 in wherein on similar facts and circumstances appeal of the Revenue was dismissed with the following observation: 8, After consideration of entire facts and details and decision discussed hereinabove, it is found that appellant in Gujarat Government undertaking establishment under GWSSB Act, 1978 of the Local Authority and not a company as per provision of Companies Act, 1956, It is not required to. file its Article & Memorandum of Association with ROC and also not required to prepare its accounts as per Schedule-VI of the Companies Act, The Appellant has prepared its accounts including Income & Expenditure Account as per relevant Section of GWSSB Act. Even though it has filed returns in 1TR-6 applicable to company as it is liable to tax as such under normal provisions of the Act, but deeming-provisions of Section 115JB which provides for special taxation are not applicable to the present case, as discussed hereinabove.
4 . A.Y. 2013-14 9. Ld. AR has filed an order of the Co-ordinating Bench in in the matter of ITO Vs. Gujarat State Road Transport Corporation Ltd. in similar matter appeal was allowed by the Hon'ble Members holding that in these similar matters Hon'ble Karnatka High Court in the case Kerala State Electricity Board Vs. DCIT [2010] 329 ITR 91 (Ker), in view of the decision, case was decided in favour of the assessee and against the revenue.
In support of its contention assessee has also filed a copy of 'judgment Damodar Valley Corporation Vs. ACIT [2016] 157 ITD 415/66 taxmann,com25(Kolkata - Trib) in similar circumstances, the case was allowed in favour of the assessee. 11. it was hold that the assessee is a statutory corporation not. registered under the Companies Act Section 115JB of the Act are- not applicable to the assessee corporation; 12. We are of the considered opinion and respectfully following the order of the Hon'ble Tribunal and judgment of Kerala High Court. We dismissed the appeal of the department.
In parity with the Co-ordinate Bench order, we dismissed the appeal of the Revenue.
In the result, appeal filed by the Revenue is dismissed.
Order pronounced in Open Court on 09- 10- 2019