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TMI Blog2012 (11) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract agreement entered into by the assessee which is for a period of 15 years and has only considered the quantification of fee as for one year - therefore, in the interest of justice this issue needs detailed examination by the AO - Order passed by the learned CIT(A) is set aside and remit the matter back to the file of the AO to examine the entire issue de novo - appeal raised by the assessee is allowed for statistical purposes. Interest u/s 234 D – Following the decision of court in case of [CIT v. infrastructure Development Finance Co. Ltd.2011 (9) TMI 591 - MADRAS HIGH COURT] - Held that:- As 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 - appeal raised by the assessee for the assessment year 2003- 04 is dismissed. Allowability of Bad debts - Held that:- Claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the industrial undertaking for the purpose of section 80-IA of the Act. 4. The assessee carried the matter before the CIT(A) and submitted that to claim deduction u/s 80-IA, ownership of the power plant is not the primary requisite condition. As per section 80-IA(4)(iv)(a) of the Act, if the assessee sets up a power plant, he will be eligible for deduction u/s 80-IA. Before the CIT(A) the learned counsel for the assessee further submitted that a new sub-clause (v) to section 80-IA(4) has been added which deals with the undertaking owned by a company set up for reconstruction or revival of a power generating plant. The above amendment is only applicable for the assessment year 2006-07 onwards. Therefore for the year under consideration the ownership is not a requisite condition to get the benefit u/s 80-IA of the Act. The learned CIT(A) after considering all the arguments of the assessee by following the decision in the assessee s own case for the assessment year 2002-03 vide order of the CIT(A) in ITA No. 437/2004-05 dated 29-03-2005 dismissed the ground of appeal raised by the assessee. 5. On being aggrieved, the assessee carried the matter before the Tribunal. The learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also dismissed for the reasons stated in para 7 above. 9. Coming to ground Nos. 3 to 3.4 for the assessment year 2003-04, grounds 3 to 3.2 for the assessment year 2004-05 and grounds 3 to 3.2 for the assessment year 2005-06 which relate to the reversal of excess revenue, the facts in brief are that during the course of assessment proceedings for the assessment year 2003-04, the AO had noticed that the assessee had debited an amount of Rs. 1,37,23,566/- in the P L Account towards plant maintenance expenditure. The details filed in this regard revealed that this amount included an amount of Rs. 1,29,86,600/- representing contribution made by the assessee to the Major Maintenance Reserve Account. As per agreement between the assessee and the owner of the power plant, i.e. M/s. Samalpatti Power Company P. Ltd., the assessee was required to contribute a fixed amount every month in the said account. The AO further observed that the said reserve was created to take care of the major maintenance activities to be undertaken in future as and when they occur. The contribution of the assessee to the said deposit was therefore treated as application of income which has already been earned b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the mercantile system of accounting, AS 9 has no application. For this contention he relied upon the decisions in the case of CIT v. Shiv Prakash Janak Raj And Co. Pvt. Ltd. (222 ITR 583) (SC) and in the case of H.P. Mineral And Ind. Development Corporation v. CIT (302 ITR 120) (HP). 13. We have heard both the sides, perused the records and gone through the orders of the authorities below. After careful consideration of the facts and circumstances of the case, we find that the AO has not examined the contract agreement entered into by the assessee which is for a period of 15 years and he has only considered the quantification of fee as for one year. We, therefore, in the interest of justice hold that this issue needs detailed examination by the AO. We therefore, set aside the order passed by the learned CIT(A) and remit the matter back to the file of the AO to examine the entire issue de novo. Therefore, this ground of appeal raised by the assessee is allowed for statistical purposes. 14. In the light of our finding in paragraph 13 above, the grounds No. 3 to 3.2 for the assessment year 2004-05 in ITA No. 939/Mds/2008 and grounds No. 3 to 3.2 for the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of CIT v. Infrastructure Development Finance Co. Ltd. (340 ITR 580) (Mad). 23. We have heard both the sides, perused the records and gone through the orders of the authorities below. In the case of Infrastructure Development Finance Co. Ltd. (supra), the Hon ble jurisdictional High Court has held 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 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. In the light of the decision of the Hon ble jurisdictional High Court in the case of Infrastructure Development Finance Co. Ltd. (supra), respectfully following the same, the ground of appeal raised by the assessee for the assessment year 2003- 04 is dismissed. 24. In view of our finding in the foregoing paragraphs, the appeals of the assessee are partly allowed for statistical purpose. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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