TaxTMI 
TaxTMI 
2019 (1) TMI 1410
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....ught not to have considered the decision of Hon'ble ITAT, Visakhapatnam in the assessee's own case for the AY5 2007-08, 2008-09 & 2012-13 in ITA No. 138-140/Viz/2016 and CO Nos. 32-34/Viz/2016 dated 25. 10-2017 wherein the Hon'ble ITAT relying on the decision of Hon'ble ITAT,"D" Bench, Chennai in the case of M/s Eveready Spinning Mills Pvt. Ltd in ITA No. 1571/ Mds/2011, dated 30-11-2011, the facts of which are contrary to the present case has no relevance to the assessee company. 3. The learned CIT(A) ought to have discussed the case on merits individually since the claim of deduction u/s 801A is not an automatic process but an issue which needs to be decided by the AO based on the facts of the case for each assessment year. 4. The CIT(A) erred in accepting the contention of the assessee that it has won an appeal before the Hon'ble ITAT, Visakhapatnam cannot be a rider for the AO to follow suit of the same as the issue of claim of deduction u/s. 801A has been a matter of adjudication as the Revenue was in appeal before the Hon'ble High Court of AP & TS, Hyderabad against the Hon'ble ITAT order on which the CIT(A) relying on. 5....
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....RANSCO would have paid the appellant, had the power generated been sold to APTRANSCO. Thus, the assessing officer adopted the rate @ Rs. 3. 25 per unit and disallowed the deduction u/s 801A in respect of the balance amount. This issue is squarely covered by the decision of Hon'ble ITAT in appellant's own case for the AYs. 2007-2008, 2008-2009 and A. Y. 2012-2013. The relevant findings of the Hon'ble ITAT are contained in Para No. 24 & 25 of their order dt. 25. 10. 2017. The Hon'ble ITAT held that the appellant is justified in adopting the rate for power consumed internally @ Rs. 4. 50 per unit of power. Further, the assessments were reopened for all the three years merely on change of opinion and without any tangible material. Thus, the reopening is invalid. In view of the above, the appellant prays the learned Commissioner of Income Tax (Appeals) to direct the Assessing Officer to delete the addition made by him towards excess claim of deduction u/s. 80IA. " 6. The ld. CIT(A) after considering the above explanation, appeal filed by the assessee is allowed. For the sake of convenience, the relevant part of the order is extracted as under:- "4. I....
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....upplying to APEPDCL at Rs. 3. 40 ps. per unit and therefore the same has to be considered in the case of unit-1 of the assessee also. The very same issue has been considered by the coordinate bench of the tribunal in M/s. Eveready Spinning Mills Pvt. Ltd. (supra) and held as under:- "6. We have perused the orders and heard the contention of learned D. R. The short question arising here is whether the per unit rate of electricity, for the purpose of computing the profits windmills of the assessee, has to be taken at Rs. 2. 70 or at Rs. 3. 50. Rs. 2. 70 was the price given by Electricity Board to the assessee for electricity generated by the windmills but, such electricity when supplied by the Electricity Board to the yarn manufacturing unit of the assessee, they had charged from the assessee Rs. 3. 50 per unit. There is no dispute that the power manufactured by the assessee from its windmills though meant for the use of captive consumption in its yarn manufacturing unit, was not physically the same as was actually used by the yarn manufacturing units. The windmills were disparately situated vis- à-vis the yarn manufacturing unit. Assessee was left with no go other th....
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....mined in the normal course of competitive environment. Thus, the price at which assessee sold its power to the Electricity Board cannot be equated with market rate as understood for the purpose of Section 80dA(8) of the Act. Now the question that remains is whether the price recorded by the assessee at Rs. 3. 50 per unit for purchasing power from the Electricity Board for its yarn manufacturing unit can be considered the market value. Assessee undoubtedly is an industrial consumer and the Board supplies power to such industrial consumers at the rate of Rs. 3. 50 per unit. Had the assessee not been saddled with the restrictions of supplying surplus power to the State Electricity Board, it would have supplied the power to ultimate customers at a price not less than Rs. 3. 50 per unit, being the rate charged by the Board from its industrial consumers. Thus, under the given circumstances, it would appropriate to hold that the consideration recorded by the assessee for transfer of power for captive consumption, which is at the rate of Rs. 3. 50 per unit, corresponds to the market value of such power Jindal Steel And Power Ltd. (2007) (16-SOT 509), we are of the opinion that this decisio....
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....o show that the order passed by the ITAT in assessee's own case has been stayed by the Hon'ble Jurisdictional High Court and also not placed any contrary decision which is in favour of the department. Under these facts and circumstances of the case, we find no merit in the ground raised by the department and the same is dismissed. Thus, ground No. 4 raised by the department is dismissed. 14. So far as ground No. 5 raised by the department relates to notice issued under section 148 of the Act. The ld. CIT(A) in consideration of this issue has observed that assessment under section 143(3) have been taken place for all three assessment years on 30/12/2010, 17/01/2010 & 25/03/2010. The only difference is that for the Assessment Year 2009-10 assessment was completed under section 153A r. w. s. 143(3) and in this year, assessment was revised under section 263 and consequential order is passed on 17/05/2013. Therefore, in this year, it is a third round of assessment, whereas for the remaining two assessment years, this is a second round of litigation. By observing the above, the ld. CIT(A) quashed the reopening by following the decision of the Tribunal. Before us, ld. Departmental ....