9911796707
TMI Blog2012 (11) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... under normal provisions of the Act. This issue is squarely covered by the decision of the Tribunal in the assessee's case in ITA Nos. 894 and 1657/Mds/2009 dated 24-05-2011 wherein the Tribunal has held as under : "15. We have gone through the entire records including the Plant Manufacturer's manual for periodic maintenance; Extract of the TRAA; Extracts of the financial statement of the company and the O&M Contractor; Payment details of MME deposit back to the O&M contractor; and letter from the O& M contractor acknowledging the receipt of the deposit it held with the company. Under these circumstances, we find no force in the Revenue's grounds hence, Ground Nos. 4.1 and 4.2 stand dismissed." Respectfully following the decision of the Tribunal in the assessee's own case in ITA Nos. 894 & 1657/Mds/2009 dated24-05-2011, the grounds raised by the Revenue are dismissed. 4. Grounds 5.1 to 5.3 relate to long term capital loss. The assessee company in 1996 had purchased lands 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in- Charge (Court of Wards) 105 ITR 133). Reliance was also placed on the decision of Hon'ble Madras High Court rendered in the case of M.S. Srinivasa Naicker and Others vs. ITO (292 ITR 481) in which it has been held as under: "Held, that it was an admitted case that till the date of sale, agricultural operations were carried on by the assessee. The land was put to use only for agricultural purposes and not for anything else. The lands in question were also registered as agricultural lands and assessed to land revenue. The fact that the purchaser had put it to use for a totally different purpose from that of the assessee ought not to have weighed with the tax authority. Capital gain tax could not be levied. Held also, that the Tribunal held that addition was made towards gross profits, on the ground that the profit margin adopted by the assessee for a high quality of kapas was much lower in point of return, compared to what had been returned on lesser quality 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "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 under section 234D of the Act. 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." Respectfully following the decision of the Hon'ble jurisdictional High Court, this ground of the Revenue is allowed. 8. In the circumstances, the appeal in ITA No. 381/Mds/2011 is partly allowed. 9. ITA No. 382/Mds/2011: Ground No.1 is general in nature and requires no adjudication. 10. Grounds 2.1 to 4.2 relate to the CIT(A)'s action in allowing the assessee's appeal against the disallowance made by the AO in respect of inflated O&M expenditure. We have already dealt with this issue in para No. 3 above. For 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken place. In such circumstances, the payer must also accept the liability falling which, an enforceable right to receive does not arise as per law. Thus, if a receipt is uncertain and is subject to the outcome of the events in future, it cannot be treated as having accrued during the relevant period. Since TNEB has refused to accept as its liability the start up fuel cost incurred by the assessee the income in respect of start up fuel cost based on the invoices raise by the assessee-company cannot be treated as having accrued to the company even it has been following mercantile system of accounting. On a specific query raised by the Bench it has been confirmed that the amount of start up fuel costs has not been recognized by the assessee as noted by the Assessing Officer in the assessment order. Therefore, we do not find any infirmity in the finding of the ld. CIT(A) in allowing the appeal in favour of the assessee. Hence, we dismiss Ground Nos. 3.1 and 3.2 raised by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
