TaxTMI 
TaxTMI 
2023 (6) TMI 1119
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.... The Assessee having its 40 megawatt capacity Power Plant located at Santej near Ahmedabad. The power plant functions based on waste heat recovery boiler and fluidized bed combustion boiler. The assessee also sells surplus power generation through the State Electricity Board Grid. 2.1. The group company namely SAL Steel Ltd. (SSL) is having its Captive Power Plant located at Gandhidham near Kandla Port and supply the same to the assessee through wheeling mechanism as per the group captive policy as under: "* The total power plant capacity of SSL is around 40MW. The assessee holds 38% of the equity share capital of SSL and therefore as per the said policy SSL can sell upto 13.5MW to the appellant. * SSL cannot sell this power to any other company not it can evacuate this power in the grid, if assessee does not buy the same. On the other hand, if assessee does not buy the power from SSL the assessee cannot run its own operations because the assessee is dependent on the power purchased from GEB as well as under this group captive policy. * Further, CPP owner SSL does not required this much power and hence it has no option but to supply maximum power to the assessee. * As per ....
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....ellant Company itself negates its choice of tested party. Because the very fundamental of choice of tested party is based on wrong assumptions. Therefore, for the reasons discussed above, it is held that the Appellant company is not purchasing power from CPP at Arms length and transfer pricing adjustments were rightly done by the TPO and the amount of Rs. 10.75,03,219 by way of the Transfer pricing adjustment made by the TPO as per his order u/s 92CA(3) dated 23/10/2017 by revising down the transaction of sale of electricity by way of the CPP of the group company SAL Steel Ltd. to the appellant company Shah Alloys Ltd by the same amount is here by upheld. This ground of appeal is dismissed. All related grounds of appeal are dismissed." 4. Aggrieved against the same, the assesse is in appeal before us raising the following Grounds of Appeal: 1. Ld. CIT(A) erred in law and on facts confirming addition made by AO of Rs. 10, 75, 03, 219/- transfer pricing adjustment done by TPO in the order u/s. 92CA (3) of the Act. 2. Ld. CIT(A) erred in law and on facts to hold the transaction of purchase of electricity by appellant company from Captive Power Plant (CPP) of the group company was....
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....ee to SSL. 5.1. The Ld. Senior Counsel further submitted from para 4 of the appellate order, wherein the Ld. CIT(A) presumed that the entire case was on the ground that the assessee claimed deduction u/s. 80IA of the Act, which was factually incorrect. Thus the Ld. Senior Counsel submitted that the issue is directly covered in favour of the assessee by Co-ordinate Bench of this Tribunal in the case of DCIT Vs. Vishal Fabrics Ltd. reported in [2022] 139 taxmann.com 30 (Ahd-Trib.) and Mumbai Tribunal decision in the case of Jayant Agro Organics Ltd. reported in [2021] 133 taxmann.com 242 (Mumbai - Trib.) Thus the Ld. Senior Counsel submitted that for the next Assessment Years 2015-16, the TPO after careful understanding of the facts of the case not made any TP adjustment for the purchase of power by the assessee from SSL. Thus the downward adjustment made by the TPO is liable to be deleted. 6. Per contra, the Ld. CIT-DR Shri Samir Sharma appearing for the Revenue supported the order passed by the lower authorities. However the Ld. D.R. could not place any decisions in support of his arguments but requested to dismiss the assessee's appeal. 7. We have given our thoughtful considera....
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....nit charged Rs. 5.40 ps. per unit from the general unit. The Assessing Officer applying sub-Section (8) of Section 80IA restricted the same to Rs. 5.32 ps. per unit and, thereby, restricted the deductions claimed by the assessee under Section 80IA of the Act. This restriction was primarily on the basis that the rate of Rs. 5.40 ps. charged by Gujarat Electricity Board (" GEB" for short) was inclusive of 8 paise per unit of electricity duty. This component of electricity duty the Assessing Officer discarded for the purposes of ascertaining market value of the electricity generated by the CPP Unit and supplied to its general unit. 4. CIT (Appeals) confirmed the view of the Assessing Officer on the same line of reasoning. The Tribunal, however, on further appeal by the assessee, reversed the orders passed by the Revenue authorities referring to and relying upon the decisions of other Tribunals. The Tribunal was of the opinion that the market value of the electricity supplied by the CPP Unit to the general unit would be the same being charged by GEB from the consumers. 5. Counsel for the Revenue contended that the component of 8 paise per unit was the electricity duty which GEB was....
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..... DCIT, Vadodara reported in, (2018) 97 taxmann.com 10 (Ahmedabad - Trib.) on the similar issue pertaining to A.Y. 2012-13 i.e. after the insertion of domestic TP provisions. We find that relying upon the judgment passed by the Hon'ble Jurisdictional High Court in the case of Gujarat Fluorochemicals Ltd. vs. DCIT, Vadodara (supra) the Coordinate Bench was pleased to hold that in case of Captive Power Plant eligible for deduction under Section 80IA, the market rate at which the receiving unit is procuring the electricity can be adopted as the sale price by the CPP. The relevant portion whereof is as follows: " ".....31. So far as the issue on merit is concerned, the Hon'ble Gujarat High Court in the of Gujarat Alkalies and Chemicals Ltd. has considered the following question: Whether the Tribunal was right in law in allowing the assessees claim of deduction of Rs. 1954 crores u/s. 80IA(4) of the l. T. Act, 1961, when the assessee had adopted rate power generation at Rs. 4.73 per unit, rate on which the GEB supplied power to its consumers, ignoring me rate of Rs. 2.36 per unit, the rate on which power generating company supplied its power to GEB?" 32. The Hon'ble High C....
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....rposes of any other business 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 info 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 electric....
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....he 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." 5. Issue once again reached the Division Bench of this Court in case of CIT vs Alembic Ltd. in Tax Appeal No. 471/2009 and connected appeals. The Division Bench referring to earlier judgments of the Court held as under. "11. We have considered the submissions made by the /earned counsel for the parties. We have also considered the case laws cited by the learned counsel for the assessee. Taking into consideration the judgments of this court and other High Courts cited above, we are of the opinion that the Tribunal ha....