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TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1027
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....ion of Rs. 1,25,000 made by the Assessing Officer on account of parking charges without appreciating the fact that the assessee had been collecting parking charges directly from the employees of the concerns located in the building and from visitors to those concerns. 2. That the learned Commissioner of Income-tax (Appeals)-II, Kanpur has erred in law and on facts in directing the Assessing Officer to allow the deduction under section 80-IA of the Income-tax Act, 1961 claimed by the assessee, without appreciating the facts brought on record by the Assessing Officer during the course of assessment proceedings. 3. That the learned Commissioner of Income-tax (Appeals)-II, Kanpur has erred in law and on facts in directing the Assessing Officer to allow the deduction under section 80-IA of the Income-tax Act, 1961 claimed by the assessee, after accepting the additional evidences during appellate proceedings, no proper opportunity has been allowed to the Assessing Officer to examine these evidences as provided under rule 46A of the Income-tax....
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....ial year 2008-09 relevant to the assessment year 200910, the contract for parking was given on annual payment of Rs. 1,50,000. In the assessment year 2009-10 also, no income was declared by the assessee and it was submitted that the assessee has adopted cash method of accounting in respect of this income and since no income was received within that year, it was not declared by the assessee in that year. The Assessing Officer has made similar addition for the assessment year 2009-10 of Rs. 1,50,000 and in the earlier three years, i.e., assessment year 2006-07 to assessment year 2008-09, he has made addition of Rs. 1,25,000 for each year. The Commissioner of Income-tax (Appeals) has followed his own order for the assessment year 2005-06 and neither side has brought any evidence on record to show as to what happened in the assessment year 2005-06. Still we feel that since the basis of addition is survey carried out under section 133A of the Act on September 19, 2007 no such addition is justified in earlier years, i.e., assessment years 2006-07 and 200708. We also find that the Assessing Officer has referred to a letter dated January 13, 2006 written to ICICI Bank which was found in th....
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....f the Revenue to submit copy of such Electricity Regulation Act highlighting the provision therein in this regard but the learned Departmental representative of the Revenue has not brought on record the copy of any such Act by highlighting such provision. 8. As against this, the learned authorised representative of the assessee supported the order of the Commissioner of Income-tax (Appeals). He also submitted that as per the judgment of the hon'ble Madras High Court rendered in the case of Tamilnadu Petro Products Ltd. v. Asst. CIT [2011] 338 ITR 643 (Mad), it was held by the hon'ble Madras High Court that the assessee is eligible for deduction under section 80-IA in respect of notional profits on account of power generated from its own captive power plant and utilised by itself. He also submitted that the copy of this judgment is available on page Nos. 42 to 45 of the paper book. He also submitted that as per the Income-tax Appellate Tribunal decision in the case of West Coast Paper Mills Ltd. v. Joint CIT [2006] 100 TTJ (Mumbai) 833, copy available on page Nos. 46 to 55 of the paper book, it was held that exemption provided in section 80-IA is available to an assessee, a....
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.... for generation of electricity. He also pointed that it is also specified that the requirement of techno-economic clearance of DEA for thermal generation project is no longer there. He also submitted that in accordance with this National Electricity Policy already notified in the Gazette of India on February 12, 2005, there is no requirement for any licence from any authority for generation of electricity. Our attention was also drawn to letter dated February 15, 2007 from the Uttar Pradesh Electricity Regulatory Commission as appearing on page Nos. 98 and 99 of the paper book wherein it was stated that the assessee's power plant satisfied the requirement as specified by the Government of India in Annexure-1 and it will come under the category of captive power plant and no permission is required from any Government Department to setup a captive power plant. He also pointed out that as per a letter dated November 3, 2009 of KESCO Limited, it is certified by them that no permission is required from KESCO for installing, running DG set for the purpose of supplying electricity to tenants, occupants and captive use of electricity. He strongly supported the order of the Commissioner ....
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....urpose of claiming extra deduction under section 80-IA of the Act, we find that the Commissioner of Income- tax (Appeals) has reproduced the detailed working regarding rate per unit of electricity along with the meter reading, etc., and a clear finding is given that rate per unit charged is same as that being charged from other tenants of the building. This finding of the Commissioner of Income-tax (Appeals) could not be controverted by the learned Departmental representative of the Revenue and therefore, in the facts of the present case and as per various judgments cited by the learned authorised representative of the assessee, it cannot be said that there is any merit in this allegation that extra profit has been shown by the assessee in the electricity generation and distribution unit by transferring extra profit from air conditioning unit to generation unit. As per profit and loss account of generation unit available on page 113 of the paper book, we find that all expenses in respect of salary, insurance, miscellaneous expenses, office repairs and maintenance, printing and stationery, postage, electric repairs and maintenance, scooter repairs and maintenance, staff welfare, tel....
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....acts, we are of the considered opinion that in the facts of the present case, the profit reported by the assessee in respect of power generation cannot be said to be excessive or unreasonable particularly when the same rate of power per unit is being charged by the assessee from tenants. The amount of capital invested has not been brought on record by the Assessing Officer or by the learned Departmental representative of the Revenue to show that the profit declared by the assessee is higher than the alleged prescribed rate of profit on capital invested even if any such restriction is there although it would not be established by the learned Departmental representative of the Revenue by bringing copy of the Electricity Regulatory Act. Considering all these facts, we do not find any merit in this objection of the Assessing Officer also. 10. As per the above discussion, we find that none of the objections raised by the Assessing Officer is valid for rejecting the claim of the assessee for deduction under section 80-IA of the Act. Hence, we do not find any reason to interfere in the order of the Commissioner of Income-tax (Appeals) on this issue. Accordingly, ground Nos. 2 and 3 of th....
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....ues are identical to issues raised in the assessment year 2006-07 and hence, in this year also, both issues can be decided on the similar lines. In the assessment year 2006-07, these issues were decided by us in favour of the assessee. Accordingly, in the present year also, both these issues are decided in favour of the assessee in line with our decision in the assessment year 2006-07. 14. In the result, the appeal of the Revenue stands dismissed. 15. Now we take up the appeal of the Revenue for the assessment year 2008-09, i.e., I. T. A. No. 563/Lkw/2012. Both sides agreed that in this year also, the same issues are raised by the Revenue as raised in the assessment year 2006-07 hence, in this year also both issues can be decided on the similar lines. In the assessment year 2006-07, these issues were decided by us in favour of the assessee. Accordingly, in the present year also, both these issues are decided in favour of the assessee in line with our decision in the assessment year 2006-07. 16. In the result, the appeal of the Revenue stands dismissed. 17. Now we take up the appeal of the Revenue for the assessment year 2009-10, i.e., I. T. A. No. 564/Lkw/2012. Both sides agree....