TaxTMI 
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2021 (11) TMI 220
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.... 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) of the Act should be allowed as deduction. In thi....
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....er 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 the due date for filing the return of income u/s. 139(1) of the Act. We therefore do not find any infirmity in....
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....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 offered by the assessee which are mostly the post-sale are: (a) Turn over discount (b) prompt payment discount (c) Quantity discount; (d)....
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....ent 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's appeal against the same is pending before hon'ble jurisdictional high court. There is no distinction on facts or law pointed out at either parties' behest in these two a....
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.... 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 above findings were recorded by the Ld. CIT(A) following the order of this Tribunal dated 26.04.2010 passed in assessee's own case in ITA Nos. 1722/Kol/2012for AYs. 2008-09 & 2009-10 wherein it was....
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....ity 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 consumed by the cement unit [herein after referred to as 'non-eligible unit'] and the remaining 4,94,05,611 units were sold to external unrelated parties i.e. IEX and GEPL. The electricity generated by the CPP at Hooghly was entirely tran....
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....'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)] Vasavdatta TPP 2 28,31,441 242,42,868 5.85 6.23 3.75 59,46,026 6,01,22,313 Vasavdatta TPP 3 57,58,953 580,49,350 5.80 6.09 3.75 1,18,05,854 13,58,35,479 Vasavdatta TPP 4 57,43,246 791,29,777 5.80 5.96 3.75 1,17,73,654 17,48,76,807 Hooghly 3,3....
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....e 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(A). According to him therefore, the decision rendered by this Tribunal in assessee's own case for AYs 2008-09 & 2009-10 was no longer valid. He further submitted that the assessee's action of first identifying the 'tested party' before application of CUP Method was unjustified for the reason that there is no....
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....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 the State of West Bengal, profits of both CPP units are eligible for deduction u/s 80-IA(8) of the Act. The power generated by these eligible units was consumed captively by the non-eligible units. For the purposes of Section 80-IA(8) of the Act and in order to determine the stand-alone profits of the eligible u....
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.... (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., Internal CUP Method & External CUP Method. Under the Internal CUP Method, the controlled transactions between the AEs involving buying or selling of goods, is compared with the transactions conducted by any of the AEs with unrelated parties for the same goods under similar circumstances. If reliable data is available, then internal CUP is the most appropriat....
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....ich 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 since the appellant has sufficiently demonstrated that not only is it permitted to supply power independently to unrelated parties but it has actually supplied substantial quantities of power to unrelated parties. Furthermore, once reliable internal CUP data is available, then the Ld. TPO could not have resorted to application of external CUP Method. Accordingly, the Ld. ....
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....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 assessee, it is noted that both the CPP and SEB have supplied power in all the months of the year and therefore there are no timing differences as well. In the circumstances, we find merit in the findings of the Ld. CIT(A) that the transaction involving purchase of power by the non-eligible unit from the SEB, fulfilled the internal CUP parameters and thus the landed cost paid by the rayo....
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....rties 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 cannot be considered as the tested party for the purposes of application of CUP. On the contrary, it is noted that the non- eligible unit was sourcing power both from the AE i,e, the eligible undertaking as well as unrelated enterprises i.e. the SEB. In the circumstances it is noted that reliable internal CUP data was available with the appellant to benchmark the ALP of the power generated & supplied by t....
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....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 had followed the ratio laid down by the co-ordinate bench in assessee's own case for AYs 2008-09 & 2009-10. The relevant findings of this Tribunal are as follows: 15. Before us the Ld. TP CIT, DR had argued that, the choice of 'tested party' is irrelevant for the purposes of application of CUP Method. We agree that the key factor in application of CUP is 'product comparability' and choice of 'tested party' is of lesser si....
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.... 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 the context of the facts and the issues before the Court for consideration. The Hon'ble Supreme Court in the case of CIT Vs Sun Engineering Works (P) Ltd (198 ITR 297) has observed as follows: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the Court. The judgment must b....
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.... 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 supplies power at the same tariff rate to all industrial consumers (similar to the assessee) in the same State, which thus represents the prevailing market rate. 20. As noted earlier, the application of CUP method requires high degree of comparability not only in the products sold and services provided but also in the economic circumstances in which the transactions take place. One should examine the market conditions in which the electricity is being sold. The tariff orde....
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....RP, 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 which non-eligible units brought electricity from the grid is thus incorrect. The ld.DRP under this misconception construed that the rate at which electricity supply-companies are purchasing the electricity should be applied for benchmarking the value of electricity sold by the CPP to its manufacturing units. In other words, the DRP was of the view that non-eligible units cannot be taken for the benchmarking for determining the value at which electricity was sold by the CPP. DRP has emphasize....
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....at 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 mind, would make no difference in so far as the market value is concerned. To a consumer, the price being paid remains 5.40 ps. per unit. The fact that the seller retains only Rs. 5.32 ps. out of the said collection and passes on 8 paise per unit to the Government in the form of electricity duty, to our mind, would make no difference. This question is, therefore, not required to be considered." 4. This was followed in case of CIT v. Shah Alloys Ltd. in Tax Appeal No. 2093/2010. This was reiterated in Tax Appeal No.1646/201....
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....ess 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 of the Hon'ble jurisdictional High Court, we allow these grounds of appeal. We direct the AO to grant deduction under section 80IA(4) on the value of electricity supplied by the CPP to its manufacturing units by adopting the average rate of electricity supplied to the assessee by MGVCL, DGVCL. 22. Useful reference in this regard may also be made to the decision of this Tribunal in the case of DCIT Vs Balrampur Chini Mills Ltd in ITA No. 1672/Kol/2019 for AY 2016-17 involving similar facts and circumstances as involved in the present case. In the decided case as....
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....ity 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 purchasing electricity. After taking into account the provisions of the Electricity Act of 2003, and the regulatory provisions applicable in the State of West Bengal, the coordinate Bench accepted the assessee's contention that in view of the provisions of Electricity Act of 2003, which were applicable in the concerned AY 2011-12, the decision of Calcutta High Court in the case of CIT Vs ITC Ltd. (supra) was not applicable. .... 8.13. If it is taken that ALP is the market value, then we find there is no dispute that the MAM is CUP. The contention of the ld. D/R that when MAM is take....
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....en 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 market. The rate of power to a supplier is not the market rate to a consumer in the open market. 32. In our opinion, the AO committed an illegality in computing the market value by taking into account the rate charged to a supplier: it should have been compared with the market value of power supplied to a consumer. 33. It is admitted by the Department that in Chhattisgarh the power was supplied to the industrial consumers at the rate of Rs. 3.20/- per unit for the AY 2004-05 and Rs. 3.75/- per unit for the AYs 2005-06 and 2006-07. It was this rate that was to be considered while computing the market value of the power. 34. The CIT-....
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....refore 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, the claim relating to purchase price from Tata Power Company is concerned and that was for the deduction under Section 80IA, the ITAT in paragraph 21 onwards has noted the factual findings and also referred to the order of the Maharashtra Electricity Regulatory Authority (for short "MERC"). Paragraph 36 set outs as to how the claim arose. The claim has been considered in the light of Section 80IA and particularly proviso and explanation thereto. The Tribunal eventually held that till the Assessment Year 2005-2006, the Revenue considered the rate at which the power was purchased by the Assessee from Tata Power Company as market value. There is nothing brought on record as to how the rate determined by the MERC is....
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....count 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 Court in the case of ITC Ltd (supra) is concerned, we note that it is distinguishable on facts as well as in law and is thus not applicable to the assessee's case. In the decided case, the relevant year in question was Financial Year 2001-02 i.e. prior to the introduction of Electricity Act, 2003. Until then, the electricity generating companies could only sell or supply power to the State Power Utility or company engaged both in generation & distribution and that too at the tariffs rates prescribed by the Regulatory Commission. Therefore, in absence of any alternate rates, the High Court held that the price at which electricity generating company sold power to SEBs was the only available open market rate. However subsequent to the enactment of Electricity Act, 2003, the func....
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....rket. 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 allowed to sell the same only to grid of the SEB in case of excess production. Save and except such monopoly buyer, the CPP was not permitted to sell power to anyone else. According to the A.O., therefore, the market value which the assessee was likely to fetch by sale of excess power to monopoly buyer like SEB represented the market value. In the AO's opinion the rates at which the SEBs were selling power to the consumers were much higher than the price at which the power was purchased from the CPPs because in addition to profit margin of the SEB, such price also included the costs towards distribution, storage, transmission losses etc. 22. We note that the sole basis for AO's inference against the assessee was his belief that the CPP or independent power producer was not allowe....
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.... 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 power. As per the recommendation made, the SERCs were required to encourage the distribution licensees to procure power from CPPs through competitive bidding on a composite tariff basis. From a conjoint reading of the provisions of the Electricity Act 2003, KERCs 'open access' Regulation notified in 2004 and the order of the KERC dated 27.02.2007, it therefore, appears that there was no statutory bar on the CPPs to sell electricity to any third party and that too at the rate mutually agreed by and between the parties. We, therefore, find that the very foundation on which the A.O. held that the assessee had no option but to sell electricity to SEB alone was factually wrong and misplaced and therefore, legally untenable in the changed factual scenario as discussed above. 23. The learn....
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....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 inasmuch as during the relevant previous years it was open to the assessee to sell even to a consumer and the price for sale to a distribution company or to a consumer that could be mutually agreed upon notwithstanding the tariff fixed by the State Regulatory Commission. We find that during the previous year relevant to the Asst Year 2009-10, the assessee infact sold electricity at rates higher than that charged from it by the State Electricity Board. The assessee nevertheless made the computation for the purpose of section 80IA of the Act with reference to the price charged from it by the State Electricity Board. In such circumstances, we hold that, when it was permissible for the assessee to sell electricity to consumers and distribution licensees at rates higher than that paid by it to the State Electricity Board, th....
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....ee 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 this issue. Hence, we uphold the order of the ld. CIT(A) and dismiss this appeal of the revenue." 31. For the reasons set out above and following the above cited decisions (supra) inter alia including the decisions of this Tribunal in assessee's own case for earlier years, we uphold the order of the Ld. CIT(A) deleting the transfer pricing adjustment of Rs. 18,95,93,925/-made in relation to the transfer price of power supplied by the CPP at Hooghly, West Bengal to the rayon unit. 32. In view of the above, this ground of Revenue stands dismissed. 33. Ground No. 2 of this appeal of the Revenue relates to disallowance of discount of Rs. 2,36,88,659/- allowed to customers. After considering the rival submissions, it is observed that the issue involved in this ground is similar to Ground No. 2 of the Departmental Appeal in AY 2012-13. Following o....