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Income Tax Appellate Tribunal, “ B ” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & MS. MADHUMITA ROY
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER: MA No.280/Ahd/2018 for AY 2008-09
By this Miscellaneous Application, the Assessee has requested for recalling of the order dated 06/04/2018 passed by the ITAT Ahmedabad Bench ‘B’ in ITA No. 2456/Ahd/2014 for AY 2008-09 to rectify the mistake apparent from the record u/s 254(2) of the Act.
MA No.280/Ahd/2018 And ITA No.2456/Ahd/2014 Gujarat State Financial Services Ltd. vs. ACIT Asst.Year – 2008-09 - 2 - 2.1. The assessee submitted as under: “1. The applicant herein files this Miscellaneous Application for A.Y. 2008- 09 arising out of the consolidated order passed by the Hon'ble "B" Bench of ITAT on 06/04/2018, which also included the order in respect of Appeal No. 2456/Ahd/2014 filed by the assessee. Applicant herein requests the Hon'ble Bench to consider the following mistake as mistake apparent from record and rectify the order by passing a suitable rectificatory order u/s 254(2).
Facts relating to this Miscellaneous Application are that the assessee had filed Appeal No.2456/Ahd/2014 wherein they had taken up effectively two issues for the consideration of the Hon'ble Bench vide four grounds of Appeal filed before Hon'ble Bench. The first ground of appeal was general, whereas ground No. 2 & 3 related to the issue of disallowance u/s 14A r.w. Rule 8D, whereas ground No. 4 alongwith the sub-grounds related to the disallowance of Rs.18 crores being contribution made by the assessee to Gujarat Socio Economic Development Society (GSEDS), which was claimed by the assessee as deductible u/s 37 r.w.s. 28 on the ground of business expediency. 3. The Hon'ble Tribunal, however, while disposing off of the Appeal No. 2456/Ahd/2014 in its consolidated order on page No. 11 of the order only took up the issue relating to disallowance u/s 14A r.w. Rule 8D and did not adjudicate on the issue relating to disallowance of Rs.18 crores contribution to GSEDS which was therein the ground No.4 before the Hon'ble Bench. 4. Since the above ground of appeal has been left out to be adjudicated upon, the same constitutes a mistake apparent from record and may please be rectified by passing a suitable rectificatory order u/s 254 (2) of the Act. 5. The order of the Hon'ble Tribunal dated 06/04/2018 was served upon the assessee on 02/06/2018 and hence this Miscellaneous Application is within the time permitted under the Act. 6. Applicant requests the Hon'ble bench to consider the aforesaid Miscellaneous Application.
And for this act of kindness, the applicant shall forever be grateful.”
MA No.280/Ahd/2018 And ITA No.2456/Ahd/2014 Gujarat State Financial Services Ltd. vs. ACIT Asst.Year – 2008-09 - 3 - 3. Because of the above, the Ld.counsel for the assessee requested to re-call the Ground No. 4 raised before the Tribunal in the main appeal which was omitted to be adjudicated inadvertently.
On the other hand, the Ld.DR did not oppose if the order passed by the Tribunal is recalled for the adjudication of the Ground No.4 raised by the assessee in its main appeal.
We have heard the Ld. Representatives appearing for the respective parties. We have perused the relevant material available on record.
5.1. On perusal of the ITAT order bearing ITA No. 2456/Ahd/2014 pertaining to AY 2008-09 vide dated 06/04/2018, we note that the ITAT omitted to adjudicate the Ground No.4 raised by the assessee in its appeal inadvertently. Thus, we are of the view that there was an apparent mistake in the order of ITAT which requires to be rectified u/s 254(2) of the Act. Accordingly, we recall the order of the ITAT as discussed above for the limited purpose of adjudication of Ground No.4 raised in the appeal. Hence, the miscellaneous application filed by the assessee is allowed. 6. The Ld.AR further submitted that the issue raised in Ground No.4 has already been decided by this Tribunal against the assessee in its case in ITA No. 1478/Ahd/2013 pertaining to AY 2009-10 vide order dated
MA No.280/Ahd/2018 And ITA No.2456/Ahd/2014 Gujarat State Financial Services Ltd. vs. ACIT Asst.Year – 2008-09 - 4 - 06/04/2018. Accordingly, the Ld.AR before us pleaded that the ground in the main appeal could be adjudicated by dismissing of the same at this moment only.
On the other hand, the Ld. DR did not raise any objection if the appeal is heard on merit in the recalled order. Accordingly, we decided to proceed to adjudicate the issue raised in the main appeal of the assessee.
Assessee’s appeal in ITA No.2456/Ahd/2014 for AY 2008-09
The assessee has raised the following relevant ground:
“4. The learned CIT(A) erred in law and on facts in not granting deduction of Rs.18 crores contributed by the appellant to Gujarat Socio Economic Development Society (GSEDS) under section 37 r.w.s.28 of the Income Tax Act. It is submitted that it be so held now.”
At the outset, we note that the issue raised by the assessee has already been decided by this Tribunal against the assessee as discussed above. The relevant extract of the order is reproduced as under:
“20. We have carefully considered the orders of the authorities below. It is true that as per directions of the Government of Gujarat, the assessee had made the contribution of Rs.30 crores.
MA No.280/Ahd/2018 And ITA No.2456/Ahd/2014 Gujarat State Financial Services Ltd. vs. ACIT Asst.Year – 2008-09 - 5 - However, in our considered opinion, the directions of Gujarat cannot override the provisions of the Income Tax Act. We find that the assessee has contributed 30% of its profit which is akin to appropriation of profit and this 30% cannot be construed as charged against profit.
The contribution made by the assessee to GSEDS is eligible for deduction u/s.80G of the Act and that has been allowed by the A.O. By making the contribution, the assessee has only followed the dictate of the Government of Gujarat but nowhere has demonstrated the nexus between the contribution and the commercial expediency vis-a-vis benefits to the assessee. The contribution so made is eligible for deduction u/s.80G and therefore in our understanding of the facts, the claim of entire contribution as deduction u/s.37 of the Act is not tenable.
The assessee has relied upon various judicial decisions. We have considered those judicial decisions carefully. In none of the decisions relied upon by the assessee, the payment was eligible for deduction u/s.80G of the Act. Therefore, the reliance placed by the assessee is misplaced.
Considering the facts in totality, this ground is dismissed.”
The facts of the case on hand are identical to the facts as discussed above. Therefore, respectfully following the same, we do not find any reason to interfere in the order of the Ld.CIT(A). Hence, Ground No.4 of assessee’s appeal is dismissed.
MA No.280/Ahd/2018 And ITA No.2456/Ahd/2014 Gujarat State Financial Services Ltd. vs. ACIT Asst.Year – 2008-09
In the result, the miscellaneous application filed by the assessee is allowed, whereas Ground No.4 of assessee’s appeal is dismissed.
This Order pronounced in Open Court on 30/01/2019
Sd/- Sd/- (MS.MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 30/01/2019 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS 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 आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-4, Ahmedabad �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ 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 21.1.2019 (dictation pad 9- pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member 22.1.2019 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S … 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…….30.1.2019 7. Date on which the file goes to the Bench Clerk…………………30.1.2019 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……………