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TMI Blog2012 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee has not furnished before us the party-wise break up of the rate charged by it in respect of its sister concerns. In our considered opinion, the working for the provisions of Section 80-IA(10) has to be made on individual basis and the same cannot be made on an average basis. Therefore, order is set aside matter is restored to file of AO for proper verification and computation - Decided in favor of assessee for statistical purposes. - IT Appeal No. 2097 (Mds.) of 2011 - - - Dated:- 31-5-2012 - N.S.SAINI, VIKAS AWASTHY, JJ. ORDER N. S. Saini, Accountant Member: - This is an appeal filed by the Assessee against the order of Commissioner of Income Tax(Appeals)-V, Chennai dated 28.09.2011 for Assessment Year 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r these and other grounds that may be adduced at the time of hearing, it is prayed that exemption claimed under Section 80IA may be granted in full and the returned income accepted and justice rendered." 2. The sole issue in the above grounds of appeal of assessee is that Commissioner of Income Tax(A) erred in confirming the partial denial of deduction under Section 80-IA for the reason that the assessee had sold power to its group concern and non-group concerns at different rates. The Commissioner of Income Tax(A) has decided the issue as under:- "8.3. The second issue, as per the ground No.8, is with regard to partial denial of deduction under Section 80-IA for the reason that the appellant has sold power to its group concern and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adyar Gate Hotels, Schasayee Paper etc. to whom power has been sold at Rs. 3.40. It is submitted by the appellant that if the sale price to Meridian Industries (out of non-group companies) is ignored, then the average price to group companies is actually lower and the reason for charging lower rate from Meridian industries has been given that with this concern alone the rate was fixed on the basis of the natural gas price and it varies with the gas price. I have considered the submissions of the appellant but the same cannot be accepted. Firstly, the claim of the appellant that the ITAT have held the sale price of power 3.40 per unit as reasonable and not excessive is not correct as the ITAT have considered the sale price to OPG Metals Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracting different sale rates with different customers but the onus is on the appellant to evidence the same when deduction is claimed on higher receipts from related parties as compared to unrelated parties. In the instant case, the appellant has failed to justify the same with any evidence. In view of the above action of the Assessing Officer in not allowing the deduction u/s 80 IA on the excessive rates charged from the group concern/related parties is confirmed and this ground (No.8) is dismissed." 3. The Authorised Representative of the assessee reiterated the submissions made before the Commissioner of Income Tax(Appeals) and the Departmental Representative supported the order of the Assessing Officer. 4. We have heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduces to the assessee more than the ordinary profits which might be expected to arise in such eligible business, the Assessing Officer shall, in computing the profits and gains of such eligible business for the purposes of the deduction under this section, take the amount of profits as may be reasonably deemed to have been derived therefrom." A reading of the above provisions shows that when business transaction is so arranged produces to the assessee more than the ordinary profits, which might be accepted to arise in such eligible business, then the AO is empowered to restrict the allowance of deduction under Section 80-IA to the amount of profit, which might reasonably be deemed to have been derived from the normal business transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary profit which reasonably be expected to arise in such business. We find force in the above argument of the assessee. 8. However, we find that the assessee has not furnished before us the party-wise break up of the rate charged by it in respect of its sister concerns. In our considered opinion, the working for the provisions of Section 80-IA(10) has to be made on individual basis and the same cannot be made on an average basis. In absence of rates charged from individual parties having close connection with the assessee before us, we are not in a position to adjudicate the issue completely. In our considered opinion, it has to be verified on individual party basis the rates, which have been charged for power sold by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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