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TMI Blog2014 (5) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - ITA No.2644/Del/2013 - - - Dated:- 9-5-2014 - J Sudhakar Reddy Rajpal Yadav, JJ. For the Appellant : Smt Shashi M. Kapila, Adv. and Shri R R Mourya, Adv. For the Respondent : Shri Gunjan Prasad, CIT-DR ORDER Per: J Sudhakar Reddy: This appeal is filed by the Revenue directed against the order dated 27.2.2013 of the Ld.CIT(Appeals)-IX, New Delhi pertaining to the Assessment Year 2009-10. The Assessee has filed the Cross Objection no. 180/Del/2013 for the Assessment Year 2009-10. 2. Facts in brief:- The brief facts of the case are brought out at para 3 and 3.1 of the Ld.CIT(Appeals) s Order, which is extracted hereunder for ready reference. 3. The Appellant Company is a joint venture of the Tata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r commenced during the year. 3. Without prejudice to the above ground, the Ld. CIT (A) has erred in not appreciating the fact setting up of the business and commencement of commercial operation are two distinct concept and that the assessee itself had claimed depreciation during the year which could not have been claimed without the setting up of the business. 4. The Ld. CIT(A) erred in not referring the factual aspect of setting up of business for verification by the Assessing Officer under the given facts and circumstances of the case. 4. We have heard Smt. Shashi M Kapila, the Ld. Counsel for the assessee and Shri Gunjan Prasad, Ld.CIT, D.R. on behalf of the Revenue. 5. On a careful consideration of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee remained liable to pay excise and custom duty wherever applicable. Accordingly, the assessee has paid excise duty of ₹ 26,06,45,349/- to its vendors on the supplied materials used for the construction, erection of the project. Of the above, the company has lodged a claim of ₹ 12,46,29,0001- with the Director General of Foreign Trade (DGFT). DGFT vide letter dated 24 Feb., 2009 had admitted the claim of ₹ 1 0,59,34,9301- which was to be reimbursed to the company only after funds are received by the DGFT by the concerned Department. 6.1. Later at para 5.8 it is held as follows. 5.8 As per the Notification No L-7/145(160/200B of Central Electricity Regulatory Commission (CERC) dated 19th January 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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