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TMI Blog2013 (5) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of CIT(A) with regard to deletion of penalty levied u/s 271(1)(c) of the Act and other appeals relating to deletion of quantum additions by the CIT(A). Since the issue raised by the revenue in these appeals revolves around a single issue, these appeals were clubbed and heard together and, therefore, a common order is passed for the sake of convenience. 2. The grounds raised in appeals 3,5,6 7/H/11 are common, which are as follows: 1. The ld. CIT(A) erred in law in granting relief to the assessee. 2. The ld. CIT(A) erred in giving finding that the sale price accrued only as per rate paid by AP Transco per unit, whereas, there is a real claim made by the assessee for higher amount and merely because the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sale of Power. The said PPA stipulated that it is enforceable subject to obtaining approval from APERC (Andhra Pradesh Electricity Regulatory Commission). As per the PPA, the sale price per unit was fixed at ₹ 2.25 with an escalation at 5% per annum with 1994-95 as the base year. This rate was to be revised on the first of April of every year. The PPA was valid up to the Financial Year 2003-04. Going by these calculations the rate applicable for FY 2004-05 worked out to ₹ 3.48 per unit of power and the applicable rate per unit for AY 2006-07 was ₹ 3.48. Subsequently, PPA was revised as on 12th March, 2004, which was stipulated that the sale price per unit shall be fixed by APERC. Thereafter, APERC revised the unit ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, should have accounted for the amount for which it as claimed entitlement. 7. On appeal, the CIT(A) following the order of the ITAT in assessee s own case for AY 2005-06 in ITA No. 1748/Hyd/2008 vide order dated 31/01/2011, allowed the claim of the assessee. 8. Against the order of the CIT(A), the revenue is in appeal before us. 9. We have heard both the parties and perused the record. In principle, we are in agreement with the order of the CIT(A) where the CIT(A) has followed the order of the Tribunal in assessee s own case for AY 2005-06 (supra) wherein the Tribunal held as follows: 8. We have considered the rival submissions. There is no dispute with regard to the material facts of the case. The only question that arises f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew is due to it according to the terms of the contract, so as to get an enforceable right for the recovery of the amount as and when it succeeds in the litigation. In this view of the matter, though invoices raised constitute fundamental record for maintenance of accounts in the normal course, as observed by the Assessing Officer, that logic does not hold good when the subject matter was under dispute and was under litigation before the judicial fora, including the jurisdictional High Court and Hon ble Supreme Court during the relevant points of time. Assessee s method of accounting only the amount which was not subject matter of litigation and which in fact was received by it from the APTRANSCO in terms of the interim order of the A.P.Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tariff rate reached its finality by the judgment of higher judicial forum, the AO is directed to bring the same for taxation in the previous year relevant to AY to which the income relates. In other words, as and when the income is actually received by the assessee, the same is to be taxed in the concerned assessment year for which it relates. Same view has been taken by the Tribunal in the case of M/s Kakatiya Cements, Sugars industries Ltd. in ITA Nos. 931 1051/Hyd/2011 vide order dated 10th February, 2012 wherein the Tribunal held as follows: 30. In view of the above order of the Tribunal, we are inclined to hold that the power tariff rate should be considered at ₹ 2.67 per unit instead of ₹ 3.48 per unit as decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court held as follows:- A glance at the provisions of section 271(1)(c) of the Income Tax Act, 1961, suggests that in order to be covered by it, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. The meaning of the word particulars used in section 271(1)(c) would embrace the details of the claim made. Where no information given in the return is found to be incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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