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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD & DR. DIPAK P. RIPOTE
आदेश / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 28.07.2022, which in turn arises from the order passed by the A.O under Sec. 263 r.w.s. 143(3) of the Income-tax Act, 1961 (in short ‘the Act’) dated 07.01.2022 for the assessment year 2015-16. The assessee has assailed the impugned order on the following grounds of appeal before us:
“1. Ground 1: The order passed by the Principal CIT -I, Raipur u/s 263 I.T. Act 1961 directing to make addition at Rs.53,65,46,087/- by disallowing the claim for VAT payment, which is a Statutory Liability levied by the State Government is unjustified, unwarranted and bad in law.
2. Ground 2: That the time limit for giving effect of Order passed u/s section 263 r.w.s. 143(3) has already expired before giving effect of section 263 order hence the order passed by Ld. AO on 07.01.2022 is void-ab- initio.
3. Ground 3: That the Ld. AO has erred in passing an Order giving effect of section 263 r.w.s. 143(3) and by making disallowance the claim for VAT payment of Rs.53,65,46,087/- which is a Statutory Liability levied by the State Government is unjustified, unwarranted and bad in law.
Ground 4: That assessee has filed First Appeal on 30.03.2022 vide Appeal no. NFAC/2014-15/10107392. The case of assessee has been rejected vide Order dated 28/07/2022 stating that assessee has filed Application under Vivad Se Vishwas against the Appeal no. NFAC/2014- 15/10107392. Whereas assessee has not filed any such application. Thus dismissal of case is invalid. Thus either the Original Appeal no. NFAC/2014- 15/10107392 be reinstated or kindly admit this appeal. Your honor is requested to admit the appeal without any delay as same came to the knowledge of assessee on 25/11/2022 itself. And if the appeal is considered delayed, same my kindly be condoned for the aforementioned reason.
3 Chhattisgarh State Beverages Corporation Limited Vs. ACIT, Circle-1(1), Raipur
5. Ground No.5 :- The assessee craves leave to add, urge, alter or withdraw any ground/s before or at the time of hearing of this appeal. III. RELIEF SOUGHT : That the Ld. CIT(A) has directed for reinstitution of appeal No. NFAC/2014- 15/10107392 filed on 30.02.2020 or kindly admit this appeal.”
At the very outset of the hearing of the appeal, it was submitted by the Ld. Authorized Representative (for short ‘AR’) that as per instructions the present appeal is sought to be withdrawn. In support of his aforesaid contention the Ld. AR had placed on record a letter dated 28.03.2023 wherein, liberty has been sought for withdrawing the present appeal. For the sake of clarity the relevant contents of the said letter are culled out as under:
“Ref. : CHHATTISGARH STATE BEVERAGES CORP. LTD. PAN: AACCC3163B Assessment Year: 2015- Respected Sir, Ld. ACIT Circle 1(1), Raipur passed Order u/s 143(3) rws 263 giving effect of Revision Order u/s 263 passed by Hon. PCIT-1, Raipur on 28/03/2021. That present Appeal before the Hon. ITAT is against the Order disposed by Hon. CIT(A) (Dt. 28/07/2022) emanating from Order of ACIT Circle 1(1), Raipur u/s 143(3) rws 263 (Dt.07/01/2022). The single issue involved in Order of ACIT Circle 1(1) u/s 143(3) rws 263 is 'Disallowance of VAT'. The assessee was also in Appeal before the Hon. ITAT against the above-mentioned Revision Order u/s 263 dt. 28/03/2021. We are pleased to state that subsequent to Order by Hon. CIT(A) (Dt. 28/07/2022), Hon. ITAT, Raipur has vacated the direction given by Pr. CIT u/s 263 to the AO for disallowing the Assessee's claim for deduction of VAT vide Para 14 of ITA 38/RPR/2011 dated 12/12/2022 and decided the issue in favour of Assessee. Thus by virtue of Order of Hon. ITAT vide ITA 38/RPR/2011 dt. 12/12/2022, entire disallowance of VAT amounting to Rs. 53.65 Crores
4 Chhattisgarh State Beverages Corporation Limited Vs. ACIT, Circle-1(1), Raipur directed as per Revision Order u/s 263 passed by Hon. PCIT-1, Raipur on 28/03/2021 stands deleted. Accordingly, as directed, since the sole issue i.e 'Deduction of VAT' in the Order of ACIT Circle 1(1), Raipur u/s 143(3) rws 263 has already decided by the Hon. ITAT, Raipur in the favour of Assessee by vacating direction of PCIT for disallowing VAT, the assessee hereby requests for Withdrawal of present Appeal 242/RPR/2022.”
Per contra, the Ld. Departmental Representative (for short ‘DR’) did not raise any objection to the seeking of the withdrawal of the present appeal by the assessee appellant.
4. On a perusal of the aforesaid letter dated 28.03.2023 (supra), it transpires that the very basis for assumption of jurisdiction by the A.O for making addition vide his order passed u/s.143(3) r.w.s. 263 dated 07.01.2022 i.e. the order passed by the Pr. CIT u/s.263 of the Act dated 28.03.2021 had been vacated by the Tribunal vide its order passed in dated 12.12.2022, Page 64- 83 of APB. As stated by the Ld. AR, and, rightly so, as the Tribunal vide its order had held that the provisions of Section 40(a)(iib) would not be applicable to the case of the assessee qua the “VAT” paid by the assessee company, therefore, the order passed by the A.O u/s.143(3) r.w.s. 263 dated 07.01.2022 making the impugned disallowance of Rs.53.65 crore does not hold the ground any more.
Considering the aforesaid factual position, the appeal of the assessee is dismissed as withdrawn in terms of our aforesaid observations.
5 Chhattisgarh State Beverages Corporation Limited Vs. ACIT, Circle-1(1), Raipur
In the result, appeal of the assessee is dismissed as withdrawn. Order pronounced in open court on 28th day of March, 2023.