TaxTMI 
TaxTMI 
2021 (11) TMI 220
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....ed against the assessment order passed under section 143(3) passed by the A.O. dated 20.03.2015. 3. Ground No. 1 of the appeal of the Revenue is directed against the Ld. CIT(A)'s action of deleting the addition of Rs. 67,16,882/- made by the AO on account of delayed deposit of employees contribution to PF and ESI u/s 36(1)(va) read with Section 2(24)(x) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') despite the assessee contributing/depositing the same before the due date of filing of return of income u/s 139(1) of the Act. 4. We have heard both the parties and perused the material available before us. It is noted that although there was a delay in some payments of employees' contribution to PF& ESI aggregating to Rs. 67,16,882/-within the time limits as prescribed by the respective Acts but the alleged sums were duly deposited with the respective authorities before the due date of filing of return of income for the A.Y 2012-13 prescribed u/s. 139(1) of the Act. We note that, the Hon'ble Calcutta High Court has taken consistent view that employee's contribution to PF/ESI paid on or before the due date of filing of return of income u/s. 139(1) o....
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....ot been made retrospectively. So we are inclined to follow the same and we reproduce the order of Hon'ble Calcutta High Court in the case of Vijayshree Ltd. supra wherein the Hon'ble Calcutta High Court has taken note of the Hon'ble Supreme Court decision in CIT vs. Alom Extrusion Ltd. reported in 390 ITR 306. The Hon'ble Calcutta High Court's decision in Vijayshree Ltd. supra is reproduced as under: ....... In the light of the aforesaid discussion we do not accept the Ld. CIT(A)'s stand denying the claim of assessee since assessee delayed the employees contribution of EPF & ESI fund and as per the binding decision of the Hon'ble High Court in Vijayshree Ltd. (supra) u/s 36(1)(va) of the Act since assessee had deposited the employees contribution before filing of Return of Income. Therefore, the assessee succeeds and we allow the appeal of the assessee". 6. Respectfully following the aforesaid decision of the Hon'ble Calcutta High Court and this Tribunal, we are of the view that the Ld. CIT(A) has rightly allowed the deduction in respect of employee's contribution to PF & ESI which had been admittedly remitted on or before th....
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....o revive the Assessing Officer's action disallowing / adding this taxpayer's discount and brokerage claim of Rs. 21,83,16,311/- during the course of assessment as reversed in lower appellate proceedings as follows:- "Decision: In this case the AO has made the addition on the ground that discounts offered by the assessee have been netted from the sales so there cannot be an admissible claim for additional discount. It is the contention of the AO that once the discount has been deducted from the gross sales the assessee cannot claim further ITA No.1781/Kol/2017 A.Y. 2008-09 DCIT, Cir-5(1), Kol. Vs. M/s Kesoram Industries Ltd. Page 2 discount under the accounting head "Brokerage and Discount". Accordingly, the order post sales discount claimed by the assessee was treated by the AO as a double claim and disallowed. Accordingly, disallowance of Rs. 21,83,16,311/- was made by the AO. I have gone through the submissions of the assessee and the findings of the AO carefully. It has been submitted that the assessee offers upfront discount at the time of the sales which is called trade discount. The sales are reported net of trade discount. The other discounts offere....
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....ection 143(3). The AO has not brought any new material facts on record which would necessitate a change in the stand taken as regard the accounting method with respect to treatment of post-sale discounts earlier accepted by the department. This accounting method has been continuously followed by the assessee and accepted by the department in scrutiny assessments. Respectfully following the decision of the Apex Court in RadhasoamiSatsang (supra) I am of the opinion that the AO has taken an entirely contrary stand in this year on the treatment of post-sale discounts which is not supported by any change in material facts which is not correct. Accordingly, the disallowance is hereby deleted." 3. Learned CIT-DR vehemently contends that CIT(A) has erred in law as well as on facts in deleting the impugned discount and brokerage disallowance. We invited his attention to the fact that this tribunal has already reversed the CIT's action in assessment year 2011-12 seeking to disallow the very claim in sec. 263 proceedings. Learned co-ordinate bench's order to this effect in ITA No.1189/Kol/2016 decided on 04.11.2016. forms part ofserved before us. We are informed that Revenue....
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....erage investments amounting to Rs. 33.18 lacs by invoking Rule 8D(2)(iii). It is noted that the Hon'ble ITAT, Kolkata in the appellant's own case for AYs 2008-09 & 2009-10 through its lead order in ITA No. 1722/Kol/2012 has held that 0.5% of dividend bearing investments should be alone be considered i.e. investments from where dividends were actually received by the appellant for the purpose of Rule 8D(2)(ii). Respectfully following the aforesaid decision, the Ld. AO is directed to re-compute the disallowance under the third limb of Rule 8D(2)(iii) by considering the investments which actually yielded dividend income to the appellant for computing disallowance u/s 14A of the Act. In case the disallowance so worked out in the manner as set out in the foregoing to an amount lower than the sum of Rs. 1,06,441/- voluntarily disallowed by the appellant u/s 14A in the return of income, then the Ld. AO shall restrict the disallowance u/s 14A to Rs. 1,06,441/-. 13. Not being satisfied with the order of Ld. CIT(A), the assessee is now in appeal before us. 14. We have heard the arguments of both the sides and also perused the relevant material available on record. It is noted that the ....
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....e, grounds raised by assessee's appeal are partly allowed for statistical purposes." 15. Since the facts and circumstances involved in the relevant year are similar to that of AYs 2008-09 & 2009-10, we do not find any infirmity in the order of the Ld. CIT(A) on this issue and therefore uphold the same. This ground of appeal of the assessee is accordingly dismissed, so the assessee's appeal stands dismissed. 16. Now we take up the Revenue's appeal in ITA No. 1778/Kol/2019. Ground Nos. 1 to 3 of the appeal relate to the transfer pricing adjustment made by the TPO to the claim of deduction u/s 80-IA of the Act. Briefly stated, the facts of the case are that, the assessee is a multi-product and multi-locational company which is engaged in the production of automobile tyres and cement and other various products. The assessee had set up four power plants [herein after referred to as 'CPP' or 'eligible unit'] viz., three CPPs for its cement unit at Vasavdatta, in the State of Karnataka and one CPP for its rayon unit at Hooghly, West Bengal. The total electricity generated by the three CPPs at Vasavdatta was 22,51,61,246 units, out of which 17,57,55,635 units were captively consu....
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....riate Method in the given facts of the present case, but the assessee's benchmarking analysis was in contravention to the principles of CUP Method. The TPO held that the ALP should have been arrived at by following the order of the Hon'ble Calcutta High Court in the case of CIT vs ITC Ltd. (64 taxmann.com 214). The TPO observed that there were similar power generating companies which were supplying power to distribution companies at the notified tariff issued by the State Electricity Regulatory Commission. According to him, these power generation companies were comparable to the CPPs and therefore the notified Tariff Order was a reliable external CUP for determination of ALP. The TPO accordingly re-computed the transfer price of power supplied by these eligible units to the non-eligible units located at Vasavdatta and Hooghly at Rs. 3.75 per unit and Rs. 3.23 per unit respectively. The transfer pricing adjustment made to the sale value of power of the eligible units was thus computed by the TPO in the following manner: Name of CPP Units captively consumed Rate adopted by assessee Rate adopted by TPO TP Adjustment made (A) (B) (C) (D) (B)*[(C)-(D)] V....
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....ly supported the order of the TPO. He contended that the Ld. CIT(A) had grossly erred in following the order of this Tribunal passed in assessee's own case for earlier years. According to him, this Tribunal in the earlier years had decided the question involving the determination of 'open market value' of the power supplied by the CPPs to the non-eligible units and not the 'arm's length price' of power. He took us through the provisions of specified domestic transactions which were introduced by the Finance Act 2012 with effect from AY 2013-14 and onwards and the corresponding amendments made by the Legislature to Section 80-IA(8), Section 80-IA(10) and Explanation to Section 80-A of the Act. According to him, post the introduction of specified domestic transactions from AY 2013-14 and onwards, the transactions referred to in Section 80-IA(8) were required to be benchmarked under the transfer pricing principles which mandated determination of 'arm's length price' and not 'open market value'. The Ld. CIT, DR submitted that, there was a marked distinction between the concept of 'open market value' and 'arm's length price' which according to him had not been considered by the Ld. CIT(....
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....at the ratio laid down by this Tribunal in assessee's own case in the earlier years determining the 'open market value' also met the transfer pricing guidelines and thus the transfer rate, as determined by the assessee, was the 'arm's length price' of power. The Ld. AR submitted that the assessee had followed internal CUP Method. The non-eligible units were procuring power both from the CPPs as well as unrelated third party i.e. the SEBs. According to him therefore, there was reliable internal CUP data available with the assessee to benchmark the transfer price of power. The Ld. AR thus submitted that there was no infirmity in the order of the Ld. CIT(A)upholding the benchmarking analysis of the assessee. In support of the order of the Ld. CIT(A), the Ld. AR relied on the decision rendered by this Tribunal in assessee's own case for earlier years and in the cases of DCIT Vs Balrampur Chini Mills Ltd (ITA No. 1672/Kol/2019) and Gujarat Fluro chemicals Ltd Vs DCIT (97 taxmann.com 10). 22. We have considered the rival submissions of both the parties. The admitted facts of the case are that, the assessee operates eligible CPPs at Vasavdatta, in State of Karnataka and at Hooghly, in ....
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....ons, is identified; (ii) such price is adjusted to account for differences, if any, between the international transaction and the comparable uncontrolled transactions or between the enterprises entering into such transactions, which could materially affect the price in the open market; (iii) the adjusted price arrived at under sub-clause (ii) is taken to be an arm's length price in respect of the property transferred or services provided in the international transaction;" the CUP Method. 24. From the above Rule, it is evidently clear that, what is required to be seen in CUP Method, is the price at which a property, good or service has been acquired under a comparable uncontrolled transaction under similar market conditions. The application of CUP Method requires strict product comparability which has been transacted under similar conditions. This method can be applied where AEs buy or sell similar goods or services in comparable transactions with unrelated enterprises or when unrelated enterprises buy or sell similar goods or services under similar conditions, as is being done between the AEs. The CUP Method is broadly classified into two categories viz., I....
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....e facts on record, it is noted that the CPPs at Karnataka had generated 22,51,61,246 units out of which 17,57,55,635 units were captively consumed by the non-eligible factory unit and the balance 4,94,05,611 units were sold to external parties, IEX & GEPL. From the material on record and the impugned transfer pricing order, it is apparent that the average rate at which power was sold to external third parties was Rs. 6.24 per unit in comparison to the rates ranging from Rs. 5.96 per unit to Rs. 6.23 per unit at which power was captively consumed by the non-eligible units. On these facts therefore I find that reliable data for applying internal CUP is available and the material on record clearly demonstrates that prices at which power was transferred by the CPPs to the company's non-eligible unit was comparable with the prices at which the CPPs sols power to unrelated parties and therefore the rate at which power generated by the CPP has been shown to have been captively consumed is held to be at arm's length. 6. In light of the facts as set out above, the Ld. TPO's reference to the judgment of the Hon'ble Calcutta High Court in ITC Limited (supra) is wholly distinguishable....
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....ricing adjustment was made in relation thereto. When enquired in this regard, the Ld. CIT, DR fairly agreed with the Ld. CIT(A)'s above findings qua the CPPs at Vasavdatta, Karnataka. For the reasons as aforesaid, we do not find any infirmity in the order of the Ld. CIT(A) deleting the transfer pricing adjustment of Rs. 40,03,60,133/- made by the TPO to the transfer value of power supplied by the CPPs at Vasavdatta, Karnataka to the noneligible cement unit. 27. With regard to the CPP at Hooghly, West Bengal, it is noted that the power generated by this CPP was entirely consumed captively by the non-eligible rayon unit and the CPP had not sold power to any unrelated parties. On the other hand, the rayon unit has procured power throughout the year both from the CPP as well as unrelated external party i.e. the SEB. Undeniably, the product purchased by the non-eligible unit from the eligible unit as well as unrelated SEB is identical i.e. power/electricity. The rate at which power has been supplied by the SEB to the assessee is the prevailing market rate at which SEB supplies power to other factories/units located in the same geographical location. From the data provided by the asse....
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....ITAT, Kolkata the adjournments were carried out by the Ld. AO in terms of Section 80IA(8) of the Act and there was no transfer pricing provisions contained in Chapter X of the Act became applicable to specified domestic transaction and therefore not only the assesse is required to demonstrate that the profits are arrived at by adopting fair value of the goods & services provided to related parties was on arm's length. In this regard, the provisions of Chapter X that the arm's length price for the goods or services should be determined on the basis of methods prescribed in Section 92C of the Act. In the circumstances therefore apart from the fact that the power tariff should be shown to be fair value, it must also be demonstrated that the price adopted for determination of profits of the eligible undertaking, the assessee had adopted power tariff which could be said to be arrived at on arm's length principle. ........ 6.8 In respect of the eligible CPP at West Bengal; it is noted that the said CPP supplied power only to the AE i.e. the non- eligible unit and it did not have any transaction with any unrelated enterprises. In the circumstances the unit at West Bengal....
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....proved by the jurisdictional ITAT, Kolkata in its own case for AYs 2008-09 & 2009-10. I therefore find that even after introduction of domestic transfer pricing provisions to specified domestic transactions and becoming applicable to the appellant, the ratio laid down by the Hon'ble ITAT, Kolkata in the appellant's own case for AYs 2008-09 & 2009-10 remains equally valid." 29. As far as the other contentions put forth by the Ld. CIT, DR is concerned, we find that similar arguments were raised by the Revenue in the case of M/s Star Paper Mills Ltd. Vs DCIT, which has been decided by this Tribunal by its order dated 26.10.2021 in ITA No 127/Kol/2021. In this decided case also, the question before this Bench was regarding the manner of application of CUP Method to ascertain the arm's length price of power transferred by an eligible CPP to a noneligible manufacturing unit. This Tribunal upheld the assessee's methodology of benchmarking the transfer rate of power supplied by the eligible CPP with the landed rate at which the non-eligible unit purchased the same product i.e. power from independent SEB and rejected the TPO's analysis. While arriving at this conclusion, this Tribunal ha....
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....id down any specific procedure or guidelines for choice of "tested party", however, OECD provides that, as a general rule, tested party should be the one to which transfer pricing method can be applied in most reliable manner and for which most reliable comparables can be found. In other words, the tested party ought to be the enterprise that offers high degree of comparability and requires least amount of adjustment. It should be, most often the one that has least complex functional analysis. Under CUP method, what is required to be seen is the price at which a controlled transaction is carried out as compared to the price obtained in a comparable uncontrolled transaction under similar conditions. Thus, it is a direct method for determination of Arm's length price. Product Comparability is the main 'key factor'." 17. It is thus noted that the facts involved in the above case were materially different from the facts involved in the assessee's case. One has to bear in mind that the ratio of any decision is rendered in the context of the facts which are before the Court. It is settled legal proposition that the observations of the any Court must be read in th....
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....d to incur & pay to the SEBs, and at the same time, to ensure stable supply of un-interrupted power for smooth production. This results in opportunity cost savings to the assessee company. Accordingly, while drawing up the standalone accounts of the eligible CPP and non-eligible manufacturing unit, the landed rate at which the manufacturing unit is procuring power from SEB is used as the comparable rate under the arm's length standards. 19. According to the Ld. CIT, DR however this landed rate at which the non-eligible unit purchases power from the SEB is regulated and therefore cannot be said to represent an uncontrolled transaction. This argument does not hold good in the given facts of the present case, for the reason that even the notified tariff order of the UPERC relied upon by the TPO is heavily regulated and is ascertained by the State Electricity Commission after taking into account several socio-political considerations, which is evident from the tariff order itself. The fact that the rates at which SEB supplies power is regulated is of no consequence, as it is not a case that this rate has been fixed exclusively by the SEB for the assessee. Instead the SEB suppl....
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....2013-14, the ld.DRP has observed that there is a little change in the statutory provision by virtue of section 80IA(8). The arm's length price of the goods sold by the assessee in the alleged captive power plant has to be determined. The ld.DRP thereafter observed that the TPO has determined value of the goods and services sold by its eligible units. According to the TPO captive power plant and electricity distributing companies are to be pitted at different pedestal. According to the DRP, there is a material difference between captive power plant as a seller and distribution/transmission entity. Thus, differences are both in terms of functions performed as well as asset used. In the case of distribution and transmission entities, apart from assets used for generation of electricity huge investments have gone in laying in transmission and distribution infrastructure. These investments and related transmission and distribution function are totally missing in the CPP. It also observed that sale of electricity is regulated activity, thus, as per the law, CPP could have sold to a distribution licensee (through transmission utility). The benchmarking of sale of CPP at the rate at wh....
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....ness carried on by the assessee are transferred to the eligible business and in either case the consideration for such transfer does not correspond to the market value of such goods as on the date of the transfer, then for the purposes of deduction under Section 80IA in case of the eligible business as if the transfer had been made at the market value of such goods or services. It is in this context that the question of substituting the actual consideration by the market value comes into picture. 7. We may notice that the Tribunal did not accept the contention of the assessee that the electricity is neither goods nor services and that, transfer of electricity, therefore, would not be covered under sub-Section (8) of Section 80IA of the Act. However, in so far as the Tribunal's reasoning to adopt the market value of the goods at Rs. 5.40 ps. per unit is concerned, we find no error. Undisputedly, GEB supplied the electricity to its consumers at the same rate. This, therefore, was a market value of the electricity supplied by the CPP Unit to the general unit. The fact that this amount of Rs. 5.40 ps. comprises of a component of 8 paise, which was electricity duty, to our ....
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....the assessee, to our mind, committed no error. It can be easily seen that if the assessee were to supply such electricity or was allowed to do so in the open market, surely it would not fetch Rs. 4.51 per unit but Rs. 5 per unit as was being charged by GEB. Since the excise duty component thereof would not be retained by the assessee, Tribunal reduced the said figure by the nature of excise duty and came to the figure of Rs. 4.90 to ascertain the market value of electricity generated by the eligible unit and supplied to non eligible business of the assessee. No error was committed by the Tribunal. No question of law therefore, arises. Tax Appeal is dismissed." ...... 6. Issues are thus considered on number of occasions by the Court and held against the Revenue. Questions are answered against the Revenue. Both the tax appeals are therefore, dismissed.' This judgment of Hon'ble High Court is directly on the issue. Hon'ble Court has considered section 80IA(8), therefore, it is not justifiable at the end of ld.DRP to ignore the judgment of Hon'ble jurisdictional High Court. 33. Respectfully following the authoritative pronouncements o....
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....e landed tariff rate notified by the UPSCB is a fair, reliable and reasonable basis to benchmark the transfer value of power procured by the non-eligible undertaking from the eligible unit. 6. The Ld. TPO's reference to the judgment of the Hon'ble Calcutta High Court in ITC Limited (supra) is wholly distinguishable since the appellant has sufficiently demonstrated that not only is it is permitted to supply power independently to unrelated parties but it has actually supplied substantial quantities of power to unrelated parties. Instead I find that the issue of allowability of deduction under Section 80IA in respect of profits derived by CPP came up for consideration before another coordinate Bench of the Hon'ble Jurisdictional ITAT in the case of M/s Electrosteel Castings Ltd in I.T. (SS) No. 47 to 60/Kol/2014, 313 and 256/Kol/2015, 66 and 124/Kol/2016 dated 25th November 2016. In respect of appeals relating to abated assessment years, the Revenue had relied on the judgment of Calcutta High Court in the case of CIT Vs ITC Ltd. (supra) to contend that the deduction was required to be allowed taking into account the price at which distribution companies were purc....
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....ions, in our view the assessee has correctly identified the manufacturing unit as the tested party and CUP as the MAM and the purchase price of electricity in the open market from the State Electricity Board to the manufacturing units in uncontrolled conditions as the ALP. 23. Gainful reference in this regard may also be made to the following decisions of the Hon'ble High Courts. (A) CIT Vs Godavari Power & Ispat Ltd (223 Taxman 234) (Chattisgarh HC) "30. The Steel-Division of the Assessee is a consumer. The CPP of the Assessee supplies electricity to the Steel-Division. Had the Steel-Division not taken power from the CPP then it had to purchase power from the Board. The CPP has charged the same rate from the Steel-Division that the Steel-Division had to pay to the Board if the power was purchased from the Board. 31. The market value of the power supplied to the Steel-Division should be computed considering the rate of power to a consumer in the open market and it should not be compared with the rate of power when it is sold to a supplier as this is not the rate for which a consumer or the Steel-Division could have purchased power in the open mar....
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....nce on an earlier judgment of the Tribunal in case of Reliance Infrastructure Ltd. v. Addl. CIT [2011] 9 taxmann.com 186 (Mum. - Trib.). Learned counsel for the assessee had placed on record a copy of the judgment of the Tribunal in case of Reliance Infrastructure limited. In such judgment an identical issue came up for consideration. The Tribunal by detailed judgment had held and observed as under:- "44. In the given facts and circumstances of the case, we are of the view that the profits of the business of generation of power worked out by the Assessee on the basis of the price that it paid to TPC for purchase of power continues to be the best basis even after the order of MERC and therefore the same has to be accepted as was done in the past and as approved by the ITAT in Assesssee's case. We therefore dismiss ground No.4 of the revenue." 7. Counsel for the assessee pointed out that the judgment of the Tribunal in case of Reliance Infrastructure Ltd. (supra) was carried in appeal by the revenue before the High Court in Income Tax Appeal No.2180 of 2011, such appeal was dismissed making following observations:- "6. As far as question (d), namely, th....
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....this Court earlier and in view of the decisions of the Chhattisgarh and Gujarat High Court, we see no reason to entertain this question. 12. In the result, Income Tax Appeal is dismissed. 24. The contention of the Ld. CIT, DR that the above referred decisions are not applicable since they were rendered in the context of 'open market value' and not 'arm's length price' is found to be misplaced. We agree with the Ld. AR of the assessee that, the 'open market value' standards and 'arm's length price' standards would ordinarily yield the same results, unless the considerations and rules involved are different. On this particular issue of determination of the transfer price of power u/s 80-IA(8) of the Act, we note that the considerations taken into account under the open market valuation standards by the High Courts in the above decided cases (supra) are consistent with the considerations and guidelines under the arm's length standards set out in Chapter X of the Act and therefore the ratio laid down in the above decisions (supra) indeed applies in the present case as well. 25. As far as the Revenue's reliance on the judgment of the Hon'ble Calcutta High Cour....
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....in the State of Karnataka, Orissa and West Bengal and the power generated was entirely supplied and consumed by manufacturing undertakings of the assessee. The A.O. per-se did not dispute the fact that the CPPs constituted separate and distinct undertakings and were eligible for claiming the deduction under section 80IA of the Act. However, on perusal of the working of the profitability, the A.O. found that the transfer price for power was considered by the assessee equal to the price at which the electricity was procured by the manufacturing undertakings from the respective SEBs. Referring to explanation to section 80IA, the A.O. held that for the purposes of section 80IA, the term 'market value' means the price that such goods or services would ordinarily fetch in the open market. According to the A.O., such market value was to be ascertained from the view point of the power generating undertakings claiming the deduction and not from the perspective of the manufacturing undertaking which was the captive consumer of the CPP. We note that the A.O. proceeded on the premise that the CPP owned by the assessee was not allowed to sell its power to the final consumer but was allo....
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....ch case, the regulatory commission was required to determine only the 'wheeling charges' which the transmission companies / authorities could levy. In this regard, the useful reference may also be made to KERC's order dated 27.02.2007. In this order, the commission explained the salient features of the National Electricity Policy issued by the Government of India on 12.02.2005 with regard to captive generation. The said order explains that the Electricity Act 2003, put in place highly liberal frame work for power generation wherein there is no requirement of licensing for generation of power. The requirement of techno-economic clearance of CEA for thermal generation was no longer there. Captive generation has been freed from all controls. The said policy further clarified that the captive generating plants were permitted to sell electricity to licensees and consumers when they were allowed 'open access' by SERCs under section 42 of the Electricity Act, 2003. The tariff policy issued by Government of India on 06.01.2006 also provided that the sole purpose of freely allowing captive generation was to enable industries to access reliable quality and cost effective ....
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....AR fairly brought to our attention the decision of Hon'ble Jurisdictional High Court in the case of ITC Ltd before us and had duly distinguished the same as not applicable to the facts of the instant case , as admittedly, the Asst Year before Hon'ble Calcutta High Court in ITC Ltd was Asst Year 2002-03. The said decision in ITC Ltd for Asst Year 2002-03 was rendered by taking into account the relevant provisions of Indian Electricity Act, 1910 and Electricity (Supply) Act, 1948. These Acts were repealed and a new Electricity Act 2003 was introduced with effect from 10.6.2003. Hence for the Asst Years 2008-09 and 2009-10 (i.e the years under appeal before us) , the assessee would be governed by the provisions of Electricity Act, 2003. 5.6.1. We have already seen that the ITC's case in Hon'ble Calcutta High Court, proceeded on the basis that the open market for the captive power plant was only a distribution company or a company engaged both in generation and distribution and that the rate at which electricity could be sold by the captive power plant was the one fixed by the tariff regulatory commission. However, such position has undergone sea change inasmuc....
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.... to that of the relevant AY 2014-15 On first appeal, the Ld. CIT(A) had found merit in the internal CUP analysis of the assessee benchmarking the specified domestic transaction involving transfer of power with the rate at which the rayon unit purchased power from the SEB. The substantive ground taken by the Revenue in appeal before this Tribunal in AY 2013-14, was that the Ld. CIT(A) had erred in accepting the assessee's claim by following the relief allowed by this Tribunal in the earlier AYs 2008-09 & 2009-10, without appreciating that the Revenue had preferred appeal against these appellate orders before the Hon'ble Calcutta High Court which is pending adjudication. Dismissing the appeal of the Revenue, this Tribunal held as under: "4. A perusal of the same demonstrates that the issue in question is covered in favour of the assessee by the decision of the Tribunal in the assessee's own case for the earlier Assessment Years 2008-09 & 2009-10 in I.T.A. No 1722/Kol/2012, I.T.A. No. 505/Kol/2017 &ors., Though the Revenue has challenged this order of the Tribunal before the Hon'ble Calcutta High Court, we are bound by the order of the Co-ordinate Bench of this Tribunal on th....