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TMI Blog2012 (11) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ould constitute a long term capital loss and would be eligible for carry forward for set off to future years. In favour of assessee Interest u/s 234D – Interest on excess refund - Assessee contended that the provisions of Sec. 234D came into force in June 2003 and cannot have the application in respect of the A.Y. 2003-04 – Held that:- Following the decision in case of Infrastructure Development Finance Co. Ltd. (2011 (9) TMI 591 - MADRAS HIGH COURT) that since the regular assessment had been completed on March 30, 2004 and section 234D came into operation on and from June 1, 2003, which was prior to the completion of the regular assessment, the assessee was liable to pay interest on the excess refund amount received as contemplated u/s 234D. It is not the year of assessment that falls for consideration in such circumstances, but the date on which the regular assessment order has been passed. In favour of revenue Recognition of income - Whether in case where receipt is uncertain and is subject to the outcome of the events in future, can be treated as accrued during the relevant period – Held that:- If a receipt is uncertain and is subject to the outcome of the events in futur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Samalpatti village measuring 10.81 acres and 16.66 acres to construct its power plant. Later on due to constraints like inability to implement the railway siding arrangement and other environmental reasons including non-availability of water, the assessee was offered alternate land in SIPCOT. During the period, the assessee sold a part of the land purchased admeasuring 10.81 acres for Rs. 9.05 lakhs and incurred a long term capital loss of Rs.15.76 lakhs in such transaction. The AO held that the concerned agricultural land not being a capital asset, loss on the sale of the same would not result in any long term capital loss and no such loss would be permitted to be carried forward for purposes of set off in future years. On appeal, the learned CIT(A) held that at the time of purchase by the assessee the concerned land may have been agricultural as is indicated by the presence of some coconut and Palmyra trees. It was certainly classified as agricultural land in the land revenue records. However, the assessee company purchased this land not with any intention to use it for carrying out any agricultural operations, but to set up a power plant. Right from its acquisition in 1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of kapas. In the absence of any material to substantiate the claim of the assessee that the addition of gross profit was not supported by any evidence, the addition was justified. 18. It is true that at the time of purchase of this land, the concerned land may have been agricultural land as is indicated by the presence of some coconut and palmyrah trees. It was certainly classified as agricultural land in the land revenue records. However, the assessee-company purchased this land with no intention to use it for carrying out any agricultural operations, but to set up a power plant. Right from its acquisition in 1996 and upto the date of its sale, no agricultural operations were carried out on this land by the assessee or by any person on behalf of the assessee-company. Consequently, as on the date of sale, the concerned land cannot be treated as an agricultural land. It was definitely a business asset held as such in the books of the assessee-company hence, loss on sale of such land would constitute a long term capital loss and would be eligible for carry forward for set off to future years. Hence, the grounds raised by the Revenue cannot be allowed. The Revenue has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the detailed reasons stated therein, the ground raised by the Revenue is dismissed. 11. Ground Nos. 5.1 and 5.2 raised by the Revenue relate to the CIT(A) s allowance of the assessee s appeal against the AO s making addition of start up fuel cost which the assessee had billed against TNEB but did not include in receipts. The same issue has been elaborately dealt with by the Tribunal in the assessee s own case for the assessment year 2005-06 and vide order in ITA Nos. 894 1657/Mds/2009 dated 24-05-2011 the Tribunal held as under : 12. Ground No. 3 (3.1 3.2) relates to claim of the assessee regarding start up fuel costs from TNEB, but has not recognized the same in its accounts since TNEB has taken a stand that start up fuel cost is not payable. According to TNEB, it has issued instructions only to reduce the station load but not shut down. The case of the Revenue is that since TNEB has refused to accept the claims made by the company towards start up fuel, the company has not recognized the revenue, on the basis of the real income concept. It was further argued that TNEB has confirmed that it has not paid any amount to the company towards the claim for start up fuel cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue. The learned DR has fairly accepted that the order is in favour of the assessee. In the light of the above, the Revenue s appeal on this issue is dismissed. 12. Ground Nos. 6.1 to 7.2 relates to the issue of interest u/s 234B C. At the time of hearing the learned DR fairly accepted that the issue is decided in favour of the assessee in the assessee s own case for the assessment year 2005-06 in ITA Nos. 894 1657/Mds/2009 dated24-5-2011. We find that the Tribunal has decided this issue by observing as under : 6. The additional ground is with regard to charging of interest u/s 234B. According to the ld.AR, it cannot be levied on the tax by virtue of retrospective amendment to section 115JB of the Act as the company had remitted the tax by taking into consideration the law prevalent at that point of time. To support her contention, the ld. AR has relied on the following case laws: CIT vs. Sedco Forex International Drilling Co. Ltd., 264 ITR 320 (Uttaranchal High Court) CIT vs. Revathi Equipment Ltd., 298 ITR 67 (Mad). 7. The ld.DR has relied on the decision of Hon ble Supreme Court in the case of Jt. CIT vs. Rolta India Ltd., 330 ITR 470. 8. In our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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