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2023 (1) TMI 1115 - AT - Income TaxTP Adjustment - Determination of ALP - electricity supply bites captive power generation plant to its AEs - As contended internal CUP i.e., the rate at which the non-eligible unit and other AEs procured power in an uncontrolled transaction from an unrelated entity viz. APSPDCL, was the right basis for determination of Arms Length Price (ALP) - HELD THAT - TPO himself conceded that the rate at which the assessee supplied the power to the APSPDCL during the financial year 2015-16 at Rs. 5.45 cannot be an uncontrolled transaction, TPO cannot ignore the transaction as submitted by the assessee between TGV Projects, Gauri Gopal Hospital and SRHHL with the APSPDCL at Rs. 8.98, Rs. 8.82 and Rs. 10.71 per unit cannot be ignored. At the same time the consistent view taken by the higher judicial fora and also the Tribunal in the cases referred to by the assessee is to the effect that when the assessee had set up a captive power generating unit and provided electricity to its AEs and claimed deduction under section 80-IA of the Act in respect of profits arising out of such activity, for the purpose of such deduction the market value of power supplied by the assessee to its AEs should be computed considering the rate of power charged by the State Electricity Board for supply of electricity to industrial consumers. We, therefore, respectfully following the decisions of Reliance Industries Limited 2019 (2) TMI 178 - BOMBAY HIGH COURT , Godavari Power and Ispat Ltd 2013 (10) TMI 5 - CHHATTISGARH HIGH COURT , Gujrat Alkalis and Chemicals Ltd 2016 (10) TMI 1111 - GUJARAT HIGH COURT and Kanoria Chemicals and Industries Ltd 2013 (5) TMI 357 - CALCUTTA HIGH COURT are of the considered opinion that the assessee is justified in adopting the ALP of the electricity supply bites captive power generation plant to its AEs at Rs. 8.74 and the Revenue is not justified in excluding certain heads of charges from out of it. With this view of the matter, we allow the grounds of appeal on this aspect.
Issues:
Transfer pricing adjustment on sale of power by the assessee to its Associated Enterprises (AEs) under section 80-IA of the Income Tax Act, 1961. Analysis: 1. The assessee, engaged in manufacturing and sale of industrial chemicals, trading in coal, and power generation, claimed deduction under section 80-IA for the assessment years 2017-18 and 2018-19. The dispute arose regarding the sale of power to AEs, where the assessee claimed a rate of Rs. 8.74 per unit, while the Transfer Pricing Officer (TPO) proposed Rs. 7.39 per unit as Comparable Uncontrolled Price (CUP). 2. The Learned Dispute Resolution Panel (DRP) considered various charges like demand charges, peak hour charges, and electricity duty, concluding that the TPO's rate was appropriate. The assessee argued that charges like time of the day charges and electricity duty should be part of the basic tariff. The assessee relied on case laws to support its contention that the rate should align with what the Electricity Board charges for power supply to meet the Arms Length Price (ALP) requirement. 3. The Revenue argued that the cost of production of electricity should be compared with the State Electricity Boards' rates, excluding charges not incurred by the assessee. The TPO justified benchmarking the rate at Rs. 7.39 per unit based on the charges levied by the State Electricity Board. 4. The Tribunal analyzed the submissions and case laws cited by the assessee, emphasizing the need to consider the rate charged by the State Electricity Board for power supply to industrial consumers. It noted the TPO's concession that the rate at which the assessee supplied power to the APSPDCL was not a controlled transaction. The Tribunal upheld the assessee's ALP of Rs. 8.74 per unit and disagreed with the exclusion of certain charges by the authorities. 5. The Tribunal allowed the assessee's appeal, citing precedents from High Courts and Tribunals supporting the assessee's methodology. It concluded that the ALP of electricity supplied by the captive power generation plant to AEs at Rs. 8.74 was justified, rejecting the Revenue's exclusion of certain charges. The Tribunal also deemed issues related to MAT credit and interest under sections 234B and 234C as academic, given the main finding. 6. The Tribunal's decision in the appeal for the assessment year 2017-18 applied mutatis mutandis to the appeal for the assessment year 2018-19, resulting in the allowance of both appeals by the assessee. This detailed analysis covers the transfer pricing dispute, arguments presented by both parties, the Tribunal's assessment of relevant legal principles, and the final decision in favor of the assessee based on the ALP methodology and supporting case laws.
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