GUJARAT STATE ELECTRICITY CORPORATION LTD.,BARODA vs. THE DY.CIT.,CIRCLE-1(1),, BARODA

The assessee has taken four grounds of appeal, but its grievances revolve around a single issue; namely, Ld.CIT(A) has erred in

The brief facts of the case are that assessee has filed its return of income electronically along with fringe benefits return on 30/09/2008. The case of the assessee was selected for scrutiny assessment. The Ld.AO had issued a notice u/s.115WE(2) r.w.s.115WG of the Income Tax Act, 1961 on 21/10/2011 which was served upon the assessee. In response to the notice, it was contended by the assessee that Gujarat Chamber of Commerce and Industries & Others have filed a writ petition before the Hon’ble Gujarat High Court challenging the validity of CBDT Circular No.8 dated 29/08/2005 seeking to interpret the provisions of fringe benefit as providing for levy of fringe benefit, even in respect of expenditure incurred for non-employees or for the business of the employer itself. The Assessing Officer after considering the explanation of the assessee has observed that on verification of the books of accounts on test check basis the taxable fringe benefit is worked out at Rs.3,69,20,698/-.

Appeal to the Ld.CIT(A), did not bring any relief to the assessee.

With the assistance of the Ld.Representatives, we have gone through the record carefully. It emerges from the record that identical

Brief facts of the case are that the assessee has filed its return of income and fringe benefit on 20.9.2008. It has shown value of fringe at NIL. In the tax audit report obtained by the assessee under section 44AB of the Income Tax Act, the auditors have reported value of fringe benefit at Rs.39,48,479/-. The AO has reopened the assessment for reopening the value of fringe benefit and confronted the assessee as to why value of fringe benefit reported by the auditors should not be added for the purpose of levying fringe benefit tax. In response to the query of the AO, it was contended that a writ petition has been filed by the Gujarat Chamber of Commerce & Industry before the Hon'ble Gujarat High Court challenging validity of CBDT Circular No.8 dated 29.8.2005 seeking to interpret provisions of FBT as provided for levy of FBT. The Id.AO has examined contention of the assessee and observed that there are three categories of assessee upon whom FBT is to be levied. According to the AO, Hon'ble Gujarat High Court has granted interim-relief qua category nos. and 2. These categories are - (a) in the first category assessees are covered under the provision of FBT, (b) under the second category, it was in dispute whether they are governed partially by the FBT, and (c) those assessees where FBT was sought to be levied by the Government despite the fact that employer was not making any payment to any employees or not incurring any expenditure for any employees so as to attract FBT. According to the AO under category no.2 and 3 interim direction of the Hon'ble High Court is there, whereas the case of assessee falls in the category no.1 i.e.

There is no disparity on facts in the case of the assessee in the present assessment year. The ld.CIT(A) has also relied upon the order of the Tribunal in the case of Gujarat Urja Vikas Nigam Ltd. for the Asstt.Year 2009-10, which has been followed by the Tribunal in ITA No.1389/Ahd/2012. Considering all these aspects, we do not find any merit in this appeal. It is dismissed.”

The Ld.Counsel for the assessee was unable to controvert the above view taken in assessee’s own case for AY 2009-10. Respectfully following the above order and finding no disparity on facts, we do not find any merit in this appeal of the assessee and it is dismissed.