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2018 (6) TMI 686 - AT - Income TaxExcise duty refund claim - Addition of income u/s 5 read with Section 28(iii)(b) - capital gain eligibility - Held that - Appeal of the assessee has been allowed by placing reliance upon the order of this Tribunal in assessee s own case for A.Y. 2009- 10 CIT VERSUS MAITHON POWER LTD. 2015 (7) TMI 784 - DELHI HIGH COURT when the business of the assessee is not yet set up then the question on assessing income of the assessee company to the Previous Year does not arise. Even otherwise the excise duty on the question was of material used for construction/erection of the project, which is in the capital filed and the refund of the same goes to reduce the cost of the assessee. As upheld by HC 2015 (7) TMI 784 - DELHI HIGH COURT he finding of CIT(A) that the business of assessee had yet not been set up during the A.Y. 2009-10 and that all the costs incurred by it would have to be taken as capital work in progress cannot be faulted. Where there is a refund of excise duty it would go to reduce the project cost/capital work in progress since it is relatable only to the capital assets. - Decided against revenue
Issues:
1. Addition of ?25,81,79,070 under section 28(iii c) of the Income Tax Act, 1961. 2. Distinction between setting up a business and commencement of commercial operation. 3. Validity of the order of Ld.CIT(A). Analysis: Issue 1: Addition of ?25,81,79,070 under section 28(iii c) of the Income Tax Act, 1961: The case involved an appeal by the Revenue against the deletion of the aforementioned addition made by the Ld. Commissioner of Income Tax (Appeals)-6 for the Assessment Year 2011-12. The Appellant Company, a joint venture of Tata Power Company Limited and Damodar Valley Corporation, was setting up a thermal power generation plant. The Ld.AO had completed the assessment with the addition, which was later allowed by the Ld.CIT(A). The Tribunal examined the issue in light of a previous ruling related to an excise duty refund claim, where it was held that until the business is set up, assessing income does not apply. The Tribunal upheld the Ld.CIT(A)'s order, emphasizing that the excise duty refund related to capital work in progress, reducing the project cost, and not constituting business income. Issue 2: Distinction between setting up a business and commencement of commercial operation: The Tribunal considered the distinction between setting up a business and commencing commercial operations. It noted that the commercial operation of the units was declared on specific dates, and the excise duty refund was related to the material used for construction/erection of the project. The Tribunal reiterated that until the business is set up, the question of assessing income does not arise. The Tribunal relied on the definition of the date of commercial operations provided by the Central Electricity Regulatory Commission to support its decision. Issue 3: Validity of the order of Ld.CIT(A): The Tribunal reviewed the order of the Ld.CIT(A) and found it to be in line with the previous Tribunal ruling for the A.Y. 2009-10. It noted that the Ld.CIT(A) had correctly applied the precedent set by the Tribunal, which was also upheld by the Jurisdictional High Court. The Tribunal dismissed the grounds raised by the Revenue, upholding the decision of the Ld.CIT(A) and ultimately dismissing the appeal filed by the Revenue. In conclusion, the Tribunal upheld the decision of the Ld.CIT(A) based on the precedent set in a previous case and the distinction between setting up a business and commencing commercial operations. The Tribunal's detailed analysis and reliance on legal definitions and previous rulings led to the dismissal of the Revenue's appeal.
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