TaxTMI 
TaxTMI 
2018 (4) TMI 1853
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....nsmission system in the State of Himachal Pradesh. The actual work of construction of the said project was started in Financial Year 2007-08 and was completed in financial year 2012-13. The total estimated completion cost was Rs. 981 crore for which equity of Rs. 300 crore and a debt of Rs. 700 crore were raised. The entire debt was received from consortium of banks under Trust and Retention Account Agreement and loan agreement. Project funds were also raised from time to time during the period of the project. Out of the project funds so raised, the funds not immediately required were temporarily parked with the bank in fixed deposit receipts for short term duration. During the year under consideration, the availability of funds was as under:- i) Funds available from equity and debt Rs. 295 crore ii) Funds used in project Rs. 251 crore iii) Short term bank FDRs 55.16 crore iv) Project contracts remaining to be executed 117 crore v) Interest received on FDRs 3.40 crore vi) Interest paid on borrowed funds 5.80 crore 2.1 In the year under consideration, since the project was at its initial stages and the assessee had not started....
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....o income is taxable as other income." 3. The Ld. AR submitted that the additional ground of appeal being raised deserved to be admitted as the same pertained to a question of law. Ld. AR also relied on the judgment of the Hon'ble Apex Court in the case of National Thermal Power company Ltd. vs. C.I.T. reported in 229 ITR 383 (SC) for the proposition that additional ground pertaining to a question of law and arising from facts on record should be allowed to be raised when it was necessary to consider that question in order to correctly assess the tax liability of the assessee. 4. The Ld. Sr. DR opposed the assessee's prayer for admitting additional ground of appeal. 5. Having heard both the parties with respect to admitting of additional ground of appeal, it is our considered opinion that this ground deserves to be admitted as it essentially raises a question of law and no factual investigation is required while admitting this additional ground of appeal. Accordingly, we admit additional ground of appeal raised by the assessee. 6. The Ld. AR submitted that while dismissing the assessee's appeal, the ld. Commissioner of Income Tax (A) had made an incorrect assertion that ....
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....d the material available on record. We note that a similar issue had come up before ITAT Ahmedabad Bench in the case of Adani Power Ltd. vs. ACIT in ITA No. 2755/AHD/2011. In its order dated 27.7.2015, the Coordinate Bench of the ITAT analysed the ratio of the judgment of the Hon'ble Apex Court in the case of Tuticorin Chemicals and Fertilizers Ltd as well as that in the case of Bokaro Steel Ltd. (supra) and the judgment of the Hon'ble Delhi High Court in the case of Indian Oil Panipat Power Consortium Ltd. (supra) along with a plethora of other related judgments on identical set of facts. The relevant observations and adjudication are contained in Para 18, 19, 20, 21, 22, 23 and 24 of the above said order of the ITAT Ahmedabad Bench in the case of Adani Power Ltd. vs. ACIT (supra). The same is being reproduced hereunder for a ready reference:- "18. We find that both the parties have relied upon the decisions of the Hon'ble Apex Court and in addition, the assessee has relied upon the decision of Hon'ble Delhi High Court. Therefore, it would be appropriate to first refer to those decisions. In the case of Tuticorin Alkali Chemicals & Fertilizers Ltd. (supra), the Ho....
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.... putting together a very large project was as much to ensure that the work of the contractors proceeded without any financial hitch as to help the contractors. The arrangements which were made between the assessee-company and the contractors pertaining to these three receipts were arrangements which were intrinsically connected with the construction of its steel plant. The receipts had been adjusted against the charges payable to the contractors and had gone to reduce the cost of construction. They had, therefore, been rightly held as capital receipts and not income of the assessee from any independent source." 20. In the case of Karnal Co-operative Sugar Mills Ltd. (supra), their Lordships of Hon'ble Apex Court, after applying the decision of Bokaro Steel Ltd. (supra), held as under:- "Held, that, in the present case, the assessee had deposited money to open a letter of credit for the purchase of the machinery required for setting up its plant in terms of the assessee's agreement with the supplier. It was on the money so deposited that some interest had been earned. This was, therefore, not a case where any surplus share capital money which was lying idle....
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....er by way of interest or in any other manner on funds which are otherwise 'inextricably linked' to the setting up of the plant, such income is required to be capitalized to be set off against pre-operative expenses. 5.1 The test, therefore, to our mind is whether the activity which is taken up for setting up of the business and the funds which are garnered are inextricably connected to the setting up of the plant. The clue is perhaps available in s. 3 of the Act which states that for newly set up business the previous year shall be the period beginning with the date of setting up of the business. Therefore, as per the provision of s. 4 of the Act which is the charging section income which arises to an assessee from the date of setting of the business but prior to commencement is chargeable to tax depending on whether it is of a revenue nature or capital receipt. The income of a newly set up business, post the date of its setting up can be taxed if it is of a revenue nature under any of the heads provided under s. 14 in Chapter IV of the Act. For an income to be classified as income under the head "Profits and gains of business or profession" it would have ....
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....sessee had earned interest on advance paid to contractors during pre-commencement period was found to be 'inextricably linked' to the setting up of the plant of the assessee and hence was held to be a capital receipt which was permitted to be set off against preoperative expenses. 24. From the above, it is evident that the Hon'ble Delhi High Court has considered and interpreted the decisions of Hon'ble Apex Court in the case of Tuticorin Alkali Chemicals & Fertilizers Ltd. (supra) as well as Bokaro Steel Ltd. (supra). The conclusion of the Delhi High Court is in fact the law which emerges as per the decision of Hon'ble Apex Court. Therefore, in our opinion, the CIT (A) was not justified in ignoring the decision of Hon'ble Delhi High Court by simply mentioning that the issue is covered by the decision of Hon'ble Apex Court in the case of Tuticorin Alkali Chemicals & Fertilizers Ltd. (supra). After considering these two decisions of the Hon'ble Apex Court and also some other decisions of the Hon'ble Apex Court, their Lordships of the Delhi High Court arrived at the conclusion "it is clear upon a perusal of the facts as fo....