2014 (5) TMI 1029

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....f the case are brought out at para 3 and 3.1 of the Ld.CIT(Appeals)'s Order, which is extracted hereunder for ready reference.     "3. The Appellant Company is a joint venture of the Tata Power Company Limited and Damodar Valley Corporation with 74% and 26% shareholding respectively. The appellant company was incorporated on 26.07.2000 to operate and maintain electric power generating stations based on conventional I non-conventional resources, tie-lines, substations and transmission lines connected therewith. The company is setting up a thermal power generation plant at Maithon, Jharkhand with a total capacity of 1050 MW.     3.1 The return of income for the A.Y. 2009-10 was filed on 25.9.2009 declaring ....

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.... The Ld. CIT(A) erred in not referring the factual aspect of setting up of business for verification by the Assessing Officer under the given facts and circumstances of the case." 4. We have heard Smt. Shashi M Kapila, the Ld. Counsel for the assessee and Shri Gunjan Prasad, Ld.CIT, D.R. on behalf of the Revenue. 5. On a careful consideration of the facts and circumstances of the case, on perusal of order of lower authorities, case laws and papers on record, we hold as follows. 6. The issue that arises before us is whether excise duty refund claim made by the assessee is income under the Act u/s 28(iii). The Ld.CIT(Appeals) at para 5.2 and 5.3 brought out the brief facts which is extracted for ready reference.    ....

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....ector General of Foreign Trade (DGFT). DGFT vide letter dated 24 Feb., 2009 had admitted the claim of Rs. 1 0,59,34,9301- which was to be reimbursed to the company only after funds are received by the DGFT by the concerned Department. 6.1. Later at para 5.8 it is held as follows.     "5.8 As per the Notification No L-7/145(160/200B of Central Electricity Regulatory Commission (CERC) dated 19th January 2009 (relevant extract of the notification is mentioned below), definition of date of commercial operations is given as under:     a) In relation to a unit or block of the thermal generating station, the date declared by the generating company after demonstrating the maximum continuous rating (MCR) of the....