AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 1191
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.... 2,68,81,82,932/- 5,00,79,86,612/- 2) Disallowance u/s 14A 1,01,73,54,403/- 93,05,58,791/- 3)Expenditure on Replacement of electricity meters 10,63,70,295/- 10,94,29,843/- 4)Proportionate apportionment and allocation of head office expenses for computing deduction u/s 80IA 2,39,64,32,137/- 1,93,81,15,563/- 5) Deduction u/s 80IA restricted to business income in respect of gross total income. Nil Nil 6) Deduction u/s 80G Nil Yes 7) Short Grant of TDS credit 39,89,761/- 2,85,117/- 8) Computation of book profit u/s 115JB Book profit not considered u/s 115JB Book profit not considered u/s 115JB (9) Book profit made u/s 115JB Disallowance made u/s 14A to the book profit u/s 115JB Computation of book profit u/s 115JB - Depreciation allowed on replacement of meters. 3. Firstly, we will take the issue with regard to transfer pricing adjustment which is common in both the appeals on account of specified domestic pricing u/s 92BA(iii) r.w.s. 80IA (8) of the Act. 4. The facts as culled out from the impugned orders are that, assessee, i.e., R-Infra is engaged in the business of generation, transmission and distribu....
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....cified Domestic Transfer (SDT). The assessee before the TPO also submitted that in the report of Administrative Staff College of India (ASCI) for FY 2016-17 which was considered as the best for determining the transfer pricing. Accordingly, it was stated that an inter-unit transfer of goods and services by a non-eligible undertaking to an eligible undertaking of R-Infra was at ALP in terms of section 92BA(iii) r.w.s. 80IA(8) of the Act, which provides that profit of eligible unit should be considered at the market value of goods and services transfers to the market eligible by any other business undertaking. However, Ld. TPO noted that there are other electricity distributors like BEST (Brihan Mumbai Electric Supply & Transport Undertaking), MSEDCL (Maharashtra State Electricity Distribution Co. Ltd.) and Tata Power, etc which are appropriate comparable under the CUP method as a distributors of electricity to the ultimate customers in an around Mumbai like assessee. The TPO had obtained information u/s. 133(6) of the Act regarding the price of purchase of thermal power/electricity by Distribution Companies in Mumbai during F.Y.2016-17 and relied upon the following transactions:- ....
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....(2) requires that the functions performed, assets employed and risks assumed by the parties to the comparable transaction should be similar to the functions performed, assets employed and risks assumed by the parties to the specified domestic transaction. Therefore, in the given case, the R- Infra-D being the distributor of power should perform functions, employ assets and ready to assume risks that are similar to the power distributors in the proposed comparable transaction. However, as already noted, the assessee has relied on the ASCI report that has taken companies that are not comparable owing to their locations being different from that of the assessee. In view of the same, as the comparability requirement of Rule 108(2) of the Rules is not fulfilled in this case and the CUP proposed by the assessee is rejected. He further observed that assessee vide reply dated 21/01/2021 has provided six transactions to be considered as comparables. It was further stated that it has purchased power from the Indian Energy Exchange Limited at INR 2.84 per unit. Like the comparables taken in the ASCI Report, the Indian Energy Exchange Limited also provides rates from across the country and hen....
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....e is completely unsuitable. Further these four comparables Knowledge Infrastructure System, PTC India Limited, JSW Power Trading Co. Ltd., and Jindal Steel and Power Limited taken by the assessee are not into distribution of electricity to end consumers. These four transactions are, therefore, not at all comparable transactions. 12. TPO further observed that the assessee also provided the comparable transaction of power purchase from Maharashtra State Electricity Board amounting to Rs. 257,99,04,304/- at the rate of Rs. 3.14. As the purchase is from a PSU and from an entity in Maharashtra, this transaction is being accepted as comparable transaction. With regard to benchmarking of the Transaction, it was submitted that as per the reply dated 11/01/2021 received from the power distributor Brihan Mumbai Electric Supply & Transport Undertaking (BEST) to the notice issued u/s 133(6) of the Act, it has purchased thermal power from Tata Power Company at an average rate of INR 4.92 per unit during the F.Y. 2016-17. As per the reply dated 11/01/2021 received from the PSU Maharashtra State Power Generation Company Limited (MSPGCL) in response to the notice issued u/s 133(6) of the Act, i....
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....duction in adjustment made to the extent of Rs. 0.16 per unit (Rs. 4.08 - Rs. 3.92) 14. Before us, Ld. Counsel for the assessee submitted that, all comparables operating in the state of Maharashtra namely as per the Assessee"s internal CUP, comparables as per SCN and comparables as per the MERC order in case of MSEDCL should be considered for working out the data set to determine the ALP. Turnover filter of 1500 MU should not be applied. 15. During the course of hearing, the Ld. Counsel for the assessee submitted working of the ALP applying Rule 10CA(4) considering various permutations of comparables as taken by the DRP. The same are summarized as under: Statement No. Particulars AY 2017-18 AY 2018-19 Remarks No. of Comparables Range ALP No. of Comparables Range ALP 1 Considering all Maharashtra Units, excluding ASCI (Only Internal CUP, TPO & MSEDCL Order) 15 3.03 to 3.35 3.24 16 2.90 to 3.93 3.0 3 Excluding Maharashtra Unit comparables as per ASCI Report 2 Considering all Maharashtra Units, excluding ASCI and Units having quantum of less than 2000 MU (Only Internal CUP, TPO & MSEDCL Order) 6 3.06 to 3.35....
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.... price of purchase of thermal power / electricity by Distribution Companies in Mumbai during F.Y.2017-18 and relied upon the following transactions:- 1. Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL) purchased power from Maharashtra State Power Generation Co. Ltd. (MSPGCL) at INR 2.77 per kWh. 2. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) purchased power from Tata Power at INR 5.16 per kWh. 19. The TPO worked out the average price of the above two transaction value and sought to adopt the purchase value of power at Rs.3.97 per kWh instead of Rs.3.03 adopted by the Appellant vide SCN dated 12.07.2021 following the same approach as adopted by him for AY 2017-18. 20. Assessee vide its reply dated 13.07.2021 in response to the SCN referred to Rule 10CA(4) which provides that where in respect of a specified domestic transaction, the application of the most appropriate method results in determination of more than one price, then the arm's length price shall be computed in accordance with the provisions of this rule. The Assessee provided different datasets considering transactions as per the ASCI Report, transactions of thermal ....
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....s the rate of Rs.4.60 per kwh is not the market value but is based on the cost incurred by Dahanu Unit • Tariff of each power generating company is determined and / or affected by various factors like quantum of purchase (Plant load Factor), Fixed cost of thermal plant, Landed fuel cost, Station Heat Rate, Gross Calorific Value, Auxiliary consumption of the plant, other factors. Thus an efficient generator with favourable factors will be able to have a lower cost structure whereas not so efficient generator will have the higher cost structure. • MSPGCL has supplied electricity at Rs. 2.77 per Kwh to MSEDCL and TPC has supplied electricity at Rs. 5.16 per Kwh to BEST which shows that there is a vide variation between the two rates which may have been determined by the MERC tariff order in the respective company. This shows that the tariff rate approved by MERC is based on the cost incurred by the generator and has nothing to do with the open market price. Even the rate of electricity supplied by TPC from their different units vary which also shows that the MERC only approves the cost of each unit separately. It also may be pointed out that TPC after having ....
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....per unit cost is based on the cost of generation and return on equity / capital and has nothing to do with market value. The cost of electricity of Dahanu unit is high in the same manner as that of TPC. Rinfra-G supplying power to Rinfra-D is not a transaction between non-AEs and also is not in uncontrolled conditions and therefore the value of Rs.4.60 per Kwh in MERC order cannot be adopted for determining the profits eligible for deduction u/s.80IA. • The Appellant stated that the cost of generation of electricity cannot be considered as market value and cannot be adopted. Adopting the value of Rs. 4.60 per Kwh as per the MERC Order is not an act of determining the arm's length price but the act of substituting the transfer value recorded at Rs. 3.03 per Kwh by Rs. 4.60 per Kwh which is not the part of the transfer pricing provisions. 23. The TPO had also provided an analysis of purchase of electricity transaction from R-infra G and five other companies namely Vashpet (Reliance Power Ltd. - RPL), DSPPL, VIPL, RIPL and AAASPL. The Assessee has justified in each case that there is no variation in the rate adopted by the Assessee in the transfer pricing study report ....
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....tment and determines the revenue surplus or revenue gap. If there is a revenue surplus, the same is adjusted in determination of tariff for the next financial year and if there is a revenue shortfall, then the same is added to the Aggregate Revenue Requirements (ARR) for determination of tariff for the next financial year. Adjustment of the prior years' deficit creates a situation where along with the current financial year annual revenue requirement; the required tariff increase sometimes is very high. RInfra submits the annual revenue requirement to cover both the costs incurred and a reasonable return on capital base/equity. MERC while fixing up the tariff redraws upon the profitability based on allowance or disallowance of certain item of expenses and income. 25. Thus, as per the above tariff determination process, the tariff for a particular year is determined before the commencement of the year on the basis of projected costs for the year. The consumers are charged as per the tariff which is determined on projected basis. After the year end MERC undertakes the truing up of the tariff which is determination of the tariff based on the actual costs incurred by the co....
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....ions has adopted the actual cost per unit of R-infra G of Rs. 4.60 per unit as the ALP stating that in the case of the Assessee, a government approved rate which measures cost plus assured mark up is available which is binding on the Assessee and therefore, the artificial price for the transaction cannot be adopted. The TPO applied other method instead of CUP method applied by the Assessee and as also confirmed by the AO and DRP for AY 2017-18 when there is no change in the facts and circumstances of the Assessee. 29. As regards the Assessee"s without prejudice contention that the rate of Rs. 4.12 per unit be adopted instead of Rs. 4.60 per unit, the TPO stated the difference in the two rates i.e. Rs. 0.48 per unit would have been factored by the Assessee in the sales consideration received from AEML. Thus, the TPO confirmed an adjustment of Rs. 1.57 per unit (Rs. 4.60 - Rs. 3.03) i.e. Rs. 500.79 crore to the transaction of purchase of power by Rinfra D from Rinfr a G. 30. Ld. DRP while analyzing the transaction has referred to the benchmarking done by the TPO and directions of the DRP for the same transaction in AY 2017-18, stating that the Assessee is generating power at a ....
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.... whom electricity can be purchased. Further, choosing of comparables is the initial prerogative of the assessee and the Assessee has rightly ascertained the market value of electricity in transactions between non-associated enterprises by obtaining the report from the Administrative Staff College of India. 33. He further submitted that R-Infra - D has purchased power from various parties other than R-Infra - G which would constitute market prices. Thus, where more than six transactions were available, the Assessing Officer ought to have applied Rule 10CA(4) for benchmarking the transaction rather than adopting the cost plus rate determined by MERC for R-Infra - G which cannot be equated to market price. He further submitted that Market rates clearly reflect the value of power in the open market and cannot be disregarded merely because there is a regulated price determined for the power transferred. Our attention was also invited to Rule 7 of the Income Tax Rules, 1962 which provides that the market price shall be the price at which the goods are sold during the relevant previous year. Thus, the price at which the electricity was sold in the open market has to be taken into consi....
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....des the most reliable and direct benchmark for establishing the arm's length prices of transaction of purchase of power as entered into by Rinfra D. Therefore, in the case of the Appellant, CUP could appropriately be applied considering internal comparable uncontrolled transactions entered into by Rinfra D with unrelated parties. 37. He further reiterated that in its own case and for the same transaction of inter-unit transfer of power, the Hon'ble DRP has accepted the CUP method for benchmarking the transaction for AY 2017-18. The same was also accepted in the completed transfer pricing assessments for AY 2013-14 and AY 2016-17. There are no changes in the facts and circumstances in the present AY and hence the decision of the DRP / TPO rendered for the earlier years should be applied to the year under consideration. Therefore, he submitted that the CUP is the most appropriate method and should be adopted for benchmarking the transaction of transfer of power. 38. Ld. Counsel further submitted that all comparables operating in the state of Maharashtra namely as per the Assessee"s internal CUP, comparables as per SCN and comparables as per the MERC order in case of MSEDCL shou....
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....as recorded in the books of account i.e. during FY 2017-18 and the MERC order in case no. 34 of 2016 dated 21.10.2016 approving the rate of Rs. 4.12 per Kwh was available. The difference in tariff (Rs. 4.60 - Rs. 4.12) i.e. Rs 0.48 per Kwh would be recovered in FY 2020-21 when the Appellant was not the licensee on account of sale of business to Adani Electricity Mumbai Ltd. (AEML). Ld. Counsel therefore submitted that the rate of Rs. 4.60 per Kwh cannot be considered. 42. On the other hand, Ld. CIT DR after referring to the various observations made by the TPO and DRP submitted that TPO has given detail reasons as to why the heavy reliance placed by the assessee on ASCI report, cannot be relied on, whereas on contrary, the AO has taken similar comparables involved in distribution of electricity within the same area. Apart from that, TPO has also relied on the transactions between MSEDCL and BEST which has purchased the power from other companies at a large higher rate which under the facts and circumstances where the best comparables. The TPO has also called for any MERC order in the case of assessee only, wherein power purchase cost was more than as determined by MERC which was....
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.... AY 2017-18 AY 2018-19 Sr. No. Name of Unit Quantity (MU) Cost per KwH Source Ref. Sr. No. Name of Unit Quantity (MU) Cost per KwH Source Ref. 1 CGPL 5149 2.40 MSEDCL Order 1 CGPL 4990 2.43 MSEDCL Order 2 NPCIL 4210 2.50 MSEDCL Order 2 Maharashtra State Electricity Distribution co. Ltd. 861 2.64 Internal CUP 3 JSW 1742 2.60 MSEDCL Order 3 Dodson 83 2.65 MSEDCL Order 4 Indian Energy Exchange Ltd 872 2.84 Internal CUP 4 NTPC 30116 2.75 MSEDCL Order 5 Knowledge Infrastructure System 13 3.02 Internal CUP 5 JSW 1899 2.89 MSEDCL Order 6 PTC India Ltd 34 3.03 Internal CUP 6 NPCIL 2591 2.9 MSEDCL Order 7 NTPC 27412 3.06 MSEDCL Order 7 PTC India Ltd 26 3.43 Internal CUP 8 Maharashtra State Electricity Board 820.98 3.14 TPO 8 MSPGCL- Thermal 48843 3.56 MSEDCL Order 9 JSW Power Trading Co. Ltd 27 3.15 Interna....
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.... 2591 2.9 MSEDCL Order 4 Adani Power 17294 3.35 MSEDCL Order 4 MSPGCL- Thermal 48843 3.56 MSEDCL Order 5 MSPGCL- Thermal 38445 4.08 TPO 5 Adani Power 17257 3.85 MSEDCL Order 6 The Brihan Mumbai Electric Supply & Transport Undertaking 2190 4.92 TPO 6 Rattan India 4347 4.96 MSEDCL Order 7 The Brihan Mumbai Electric Supply & Transport Undertakin 2200 5.16 TPO Comparable total 6 Comparable total 7 Particulars Place Range Particulars Place Range 35th Percentile 2.1 3rd 3.06 35th Percentile 2.45 3rd 2.90 65th Percentile 3.9 4th 3.35 65th Percentile 4.55 5th 3.85 Range 3.06 to 3.35 Range 2.90 to 3.85 Reliance Infrastructure Ltd &n....
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.... 2.90 to 3.93 Reliance Infrastructure Ltd 3.24 Reliance Infrastructure Ltd 3.03 TP Range Computed for Purchase Cost from All Maharashtra Units excluding ASCI list, CGPL, IEX and small quantity (only Internal CUP, TPO and MSEDCL order) AY 2017 - 18 AY 2018-19 Sr. No. Name of Unit Quantity (MU) Cost per KwH Source Ref. Sr. No. Name of Unit Quantity (MU) Cost per KwH Source Ref. 1 NPCIL 4210 2.50 MSEDCL Order 1 Maharashtra State Electricity Distribution co. Ltd. 861 2.64 Internal CUP 2 JSW 1742 2.60 MSEDCL Order 2 NTPC 30116 2.75 MSEDCL Order 3 NTPC 27412 3.06 MSEDCL Order 3 JSW 1899 2.89 MSEDCL Order 4 Maharashtra State Electricity Board 820.98 3.14 TPO 4 NPCIL 2591 2.9 MSEDCL Order 5 Adani Power 17294 3.35 MSEDCL Order 5 MSPGCL- Thermal 48843 3.56 MSEDCL Order 6 EMCO Power 1475 4.07 MSEDCL Order  ....
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.... to be done. 48. Otherwise also, if we analyze the order of DRP given in AY 2017-18 which has been followed in AY 2018-19 also, the DRP has made the following observations in AY 2017-18 which are as under:- We are of the considered view that the TPO is justified in rejecting the rate of ASCI adopted by the assessee. We endorse the reasons given by the TPO in this regard. The TPO has taken comparable rates of thermal power purchased by MSEDCL from MSPGCL. MSEDCL is engaged in the power distribution activity in state of Maharashtra. MSPGCL generating power in state of Maharashtra. Therefore, we are of the considered view that the CUP comparables in the instant case need to be from the similar geographical location of the state of Maharashtra and not Mumbai alone. The assessee has pleaded before us that, if thermal power purchase rate of MSEDCL from MSPGCL is taken for comparison, then there are other sources of thermal power producers in Maharashtra from whom MSEDCL had purchased thermal power, in FY 2016-17 [which are mentioned in the tariff order no. 195 of 2017 dated 12.09.2018 issued by Maharashtra Electricity Regulatory authority (MERC)], and therefore, the ....
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....objection no. 2 is partly allowed, 49. However, there is a slight fallacy in the order of the DRP while constructing the data set of comparables. The DRP has added extra landing cost of Rs. 0.57 per unit to the MERC approved rate of all comparables in case of MSEDCL Order for AY 2017-18. The DRP has assumed the difference between the MERC approved cost in case of MSPGCL of Rs. 3.51 per unit and the per unit rate of Rs. 4.08 as per the reply received from MSPGCL in response to the notice u/s. 133(6), being Rs. 0.57 (Rs. 4.08 - Rs. 3.51) as the landing cost and uniformly applied the same to the cost per unit of all comparables considered as per the MERC order in case of MSEDCL. The difference in the two rates in case of MSPGCL, i.e., Rs. 3.51 and Rs. 4.08 as per reply of MSPGCL has been explained as under: Station Actual Power Purchase from MSPGCL stations Cost per Unit Remarks Qty in MUs. Cost (Rs. in crore) Paras Unit 3 & 4 2,679 1,127 Refer Page 217 of MERC Order of MSEDCL in case no. 195 of 2017 dated 12.09.2018 Chandrapur 3 to 7 10,751 3,283 Chandrapur 8 & 9 2,906 1,164 Nasik ....
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....DCL 5 MSPGCL - MERC Tariff order 4.08 4.08 MSEDCL 6 The Brihan Mumbai Electric Supply & Transport Undertaking 4.92 4.92 TPO 133(6) 7 Rattan India 9.19 8.62 MSEDCL Comparable total 7 Particulars Place Range 35th Percentile 2.45 3rd 3.14 65th Percentile 4.55 5th 4.08 Range 3.14 to 4.08 Reliance Infrastructure Ltd 3.24 52. Accordingly, on the basis of DRP order also, if the revised TP range is computed, then the middle range is between 3.14 to 4.08, and therefore, the ALP rate of assessee Rs. 3.24 is at ALP. Thus, from all the angles if determination of ALP is taken within as per the working of revenue authorities in a proper perspective, there is no case of any transfer pricing adjustment. Accordingly, the TP adjustment made in the AY 2017-18 and 2018-19 is hereby deleted. 53. Now coming to issue in respect of disallowance made u/s 14A in AY 2017-18 of Rs. 1,01,73,50,403/-. 54. The facts in brief are that during the year assessee had earned dividend income of Rs. 10,62,92,762 which had been claimed exe....
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....the Supreme court decision in case of Principal Commissioner of Income-tax-2 v. Caraf Builders & Constructions (P.) Ltd. [2019] 112 taxmann.com 322 (SC) wherein it was held that upper disallowance u/s. 14A cannot exceed exempt income of relevant year and also held that where for year in question, finding of fact was that assessee had not earned any tax free income, corresponding expenditure could not be worked out for disallowance. 59. The DRP however has not allowed the ground stating that the view of the Assessing Officer that investments which has not earned dividend income in the year but is capable of earning dividend income need to be considered for working out the disallowance u/s. 14A. In respect of the Assessee"s contention that disallowance u/s. 14A should be restricted to the exempt income earned by the Assessee, the DRP has stated that the SC decision relied upon by the Appellant in the case of Caraf Builders is only a dismissal of SLP and the issue has not attained finality. Thus, DRP has confirmed the disallowance made by AO. 60. Similarly in AY 2018-19 disallowance u/s 14A of Rs. 93,05,58,791/-, the assessee has earned dividend income of Rs. 23,58,73,222/-. The....
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....preciation thereon as against the Assessee"s claim for the said expenditure as revenue expenditure in the computation of income. 65. The DRP has not allowed this issue stating that expenditure on replacement of meters is capital expenditure giving enduring benefit to the assessee. Expenditure incurred on replacement of meters which was capital in nature cannot change the character of the expenditure and the same would remain capital in nature. 66. Before us, Ld. Counsel for the assessee submitted that this issue has been allowed by the Hon'ble Bombay High Court in Assessee"s own case for AY 2006-07 to AY 2009-10 and also by ITAT Mumbai Benches for AY 2002-03 to AY 2015-16. 67. After considering the aforesaid facts and earlier judicial pronouncements in assessee"s own case, it is seen that the expenditure has been incurred on replacement of meters which is treated as revenue expenditure for facilitating the business operations and enables the maintenance and conduct of the assessee"s business more effectively or more profitably. The replacement of meter does not increase the Assessee"s generation or distribution capacity. In fact assessee replacing old meters by new meters ....
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....ad office expenses cannot be deducted from the profits and gains which are derived from the eligible business as these expenses do not have the direct and immediate connection with the unit. He further submitted that this issue has been allowed by the Hon'ble Bombay High Court in Assessee"s own case for AY 2006-07 to AY 2009-10 and also by ITAT Mumbai Benches for AY 2002-03 to AY 2015-16. 73. After considering the aforesaid facts and earlier judicial pronouncements in assessee"s own case, we find that that this issue is now covered by the decision of Hon'ble Bombay High Court in assessee"s own case for AY 2006-07 to AY 2009-10 and also by ITAT Mumbai for AY 2002-03 to AY 2015-16. Thus, we direct the AO to allow the deduction u/s 80IA against gross total income. Accordingly, this ground raise is both the assessment years are allowed. 74. Now coming to the issue with regard to Short Grant of TDS credit in both the AYs 2017-18 and 2018-19. 75. Having heard both the parties and also on perusal of relevant findings in the impugned order as well as material placed on record, we find that the AO has not granted credit for TDS as the same did not reflect in Form 26AS of the assess....
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.... 15.05 crores which was eligible for 50% deduction u/s. 80G i.e. Rs. 7,52,50,000/-. In the return of income filed on 30.03.2019, the benefit of the same was not taken since deduction u/s. 80IA was claimed against the gross total income. The deduction u/s. 80IA was more than the gross total income and hence no deduction u/s. 80G was considered. There was a reduction in the amount of deduction u/s. 80IA and gross total income has been worked out. The Assessee claimed that it should be granted the deduction u/s. 80G against "gross total income" subject to the limits provided in the section 80G. A claim for the same was made in the revised return of income filed on 30.03.2019. 82. Further the Assessee vide its submissions dated 20.09.2021 had pointed out that deduction u/s. 80G ought to be granted against the taxable income subject to the limits specified in the section as the claim for it was made in the revised return of income filed on 30.03.2019. Assessee has also made submissions vide letter dated 27.09.2021 for rectification of the mistake of not granting deduction u/s. 80G against gross total income and also submitted the relevant extracts of the ITR 6 giving details of donat....