ASST CIT LTU, MUMBAI vs. ADITYA BIRLA NUVO LTD, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य सद�य राजे�� राजे�� केकेकेके अनुसा अनुसार PER Rajendra A.M.- लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसा अनुसा Challenging the order dt.11.12.13 of CIT(A)-24, Mumbai, the assessee and the AO have filed cross appeals for the above mentioned AY.s.Assessee-company,engaged in the business of rayon,carbon black etc.,filed its return of Fringe Benefits(FB)on 29.9.09 declaring value of FB at Rs.11.86 crores .The assessee worked out Fringe Benefit Tax (FBT) at Rs.4.03 crores. Assessment u/s. 115WE(3) of the Act was finalised on 12.12.2011.The assessee challenged the order of the AO before the Appellate Authority (FAA). 2.After considering the submission of the assessee and the FBT order the FAA held that assessee did not file any claim of exclusion of certain items from the computation of total value of FB in the original return or in the revised return filed by it, that in view of the decision of Supreme Court in the case of Goetz India Pvt. Ltd. the AO was justified in not entertaining the claim of the assessee.The assessee referred to the case of Grasim Industries Ltd.(ITA/4910 -11,5632/M/2011,dated 19.6.13).After considering the available material he held that facts of the case were not identical to that of the case of the assessee. However following the said order he directed AO to make verification and allow the claim accordingly. 3.Before us, the Authorised Representative (AR) stated that similar issue had arisen in the case of assessee for the AY.s 2006-07 and 2007-08 (ITA.s7583-84/Mum/2010, dt.30.10.15 ). The Departmental representative (DR) left the issue t the discretion of the Bench. 4.We find that while adjudicating the appeal for the above mentioned two years the Tribunal had held as under : “6. At the very outset, the ld. Departmental Representative (DR): representing the Revenue raised a legal question that when the assessee itself has filed fringe benefits tax return and offered the value taxable as FBT, therefore, the assessee cannot retract now by raising the issues relating to the taxability of FBT. It is the contention of the ld. DR that if the assessee was not convinced by its return of fringe benefit, then he should have filed a revised return

2196,2141-Aditya Birla failing which,the assessee should be precluded from raising such grounds of appeal

. In support of her submissions, the ld. DR relied upon the following orders: 1. 35 Taxman 153 (Bombay)/[1987] 168 ITR 375 (Bombay) 2. 65 ITR 261 (Bombay)

7. On the contrary, the ld. AR relied upon the decision of Hon’ble ITAT, G Bench, Mumbai in 4911 and 5632/Mum/2011 M/s. Grasim Industries Ltd. vs. ACI T. On the careful perusal of judgments relied upon by the Id. OR as well as the ld. AR, we are of view that the para-materia contained in the judgements relied upon by ld. DR is not similar to that of the facts of the present case,judgements relied upon by DR are based either on concession given by the parties or a settlement arrived at between the assessee department. But in the present case, the assessee has returned the fringe benefits with a rider that "taking abundant precaution" the value is offered for fringe benefit tax, therefore, the assessee has got a right to file and maintain the present appeal. 8.Now coming upon the merits of the appeal. The Id. AR relied u the grounds of appeal and refer to judgment dated 19.06.2013 by the Hon'ble ITAT G Bench, Mumbai in ITA Nos. 4910, 4911 5632/Mum/2011 M/s.Grasim Industries Ltd. vs. ACIT, wherein after detailed discussion , directions were given to AO to exclude from fringe benefit on certain items from taxable value of fringe benefit since the grounds mentioned in the judgment are similar to the grounds taken by the appellant before us.” Respectfully following the above,matter is restored back to file of AO with direction to verify the facts of each ground vis-a -is the facts in the case of Grasim Industries Ltd. Effective ground of appeal filed by the assessee is decided in its favour,in part.