TaxTMI 
TaxTMI 
2013 (8) TMI 827
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.... was realized that the appeal papers were retrieved from the said office, which took time, and filed with the registry of the Tribunal. The reasons have not been controverted on facts, and constitute, in our view, a reasonable cause for the delay. The appeal was, accordingly, admitted, and hearing thereof proceeded with. 2.2 The appeal raises three issues per its grounds A, B & C, and which we shall take up in seriatim. 3. The assessee's first ground is in respect of confirmation of a disallowance of expenditure on account of amount/s written off at Rs.49,65,446/-. The background facts are that of the same Rs.48,24,365/- represents the balance outstanding in the assessee's accounts from M/s. Jalkheri Power Pvt. Ltd. (JPPL). Expenditure to the tune of Rs.69.24 lacs stood incurred (during financial years (f.ys.) 2001-02 to 2003-04) on various expenses, viz. salaries, traveling, telephone, professional charges, rent etc., on project related work, i.e., on project development, in respect of rice/wheat straw based power projects to be setup at different locations in Punjab by it in consortium with JPPL, for which the Consortium had bid to build and operate such power plants, enter....
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.... admission of additional evidence is total un-substantiated inasmuch as no case for the same has been made out. In fact, the contention that there was no JV in place, but only a consortium, so that, as we presume, both the partners, i.e., the assessee-company and JPPL, would be individually responsible for the project, and also entitled to the profits arising from the project, is also not supported by any material. The ld. AR on being specifically questioned as to why the documents being now presented before the Tribunal for the first time, were not produced before the authorities below, could not furnish any satisfactory answer. In fact, at para 2.4 of his order, the ld. CIT(A) has specifically recorded as many as five dates on which the assessee was granted opportunity to produce the 'relevant documents'. Further, it was also conceded by the ld. AR that the material in support of the said claim was not available for being produced before us, though would be submitted before the A.O. in the remand proceedings, request for which was made. We find the assessee's prayer as not meriting acceptance. The power of the appellate authority to admit additional evidence, which is to be ju....
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....as PEDA, the nodal agency in respect of NRSE projects, fixed the power tariff at Rs.3.01 per unit (for f.y. 2001- 2002), the base year. Five escalations would apply, and the rate for f.y. 2006-07 so determined would remain in force for the remaining term of PPA in the interest of the consumers. However, in the event of revision in the NRSE policy in future regarding escalation, the project owner's right to approach the Commission (PSERC) for suitable orders was not infringed. As stated earlier, this rate was much below the 'originally offered' price of Rs.4.10 per unit by PSEB, which was expected to be confirmed. The appellant, however, had carried out various works relating to the projects, i.e., toward project development, in anticipation. As per the JV arrangement, the same were to be incurred by the assessee- appellant in the first instance, and be reimbursed for the same from the revenue generated on the sale of power to PSEB. The appellant, however, could recover only Rs. 21 lacs of the total 69.24 lacs, leaving a balance of Rs.48,24,365/-. The same being paid on behalf of JPPL, was written off in accounts on finding the same as no longer recoverable, as JPPL was not inter....
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....zed by operating the said projects and sale of power generated there-from to PSEB. There is further, to our mind, no question of any rate having been negotiated earlier, as the allotment (of the project) was made in an open, transparent and competitive manner. And, further, the power tariff was to be decided subsequently on reference to the regulatory body, which was to, as it actually did, decide on the same after hearing all the parties, including the nodal agency (PEDA) for implementing the policy under which the power projects were being set up. What, therefore, would have been agreed upon at the pre-negotiation stage would be the basis of arriving at the tariff, as, say, the rate of return that the power project should yield to the project owner. The actual rate would depend on the financial data on various parameters. In fact, we need not travel into this area further; the decision not to continue with the project, despite having spent so much time and resources thereon, being decidedly a business decision, taken in business interest. The same would not, however, convert what is essentially a capital expenditure to of revenue nature. Capital expenditure, it may be appreciated....
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....ising out of the operations of the trade or business are really losses of capital. Reference in this context may also be made to the decision by the tribunal in the case of Integrated Technology Solutions Pvt. Ltd. v. ITO (in ITA No. 3695/Mum/2011 dated 28/6/2013). We may at this stage also clarify that in discussing this ground of appeal, we have relied upon the material on record, including the assessee's submissions before the authorities below. Our findings are in fact only an endorsement of those by the assessing authority (refer para 4 of the assessment order). Further, the assessee's argument of there being no JV, raised de hors any material on record, is in fact contrary to the assessee's case as well as the material on record, i.e., represents a new case altogether, though, as would be apparent from the foregoing, to no moment. We further observe that the amount in respect of the Joint Venture written off is at Rs.48.24 lacs only, while the impugned amount, i.e., per the assessee's ground `A' is at Rs.49,65,446/-, which we find to be in agreement with the amount actually written off and added back in assessment (Rs.49,65,556/-), leaving a balance, so that there are a....