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TMI Blog2018 (6) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of Rs. 25,81,79,070/- made in the assessment order u/s 5 read with section 28(iii c) of the Income Tax Act, 1961. 2. Whether Ld.CIT(A) has erred in not appreciating the fact that setting up of business and commencement of commercial operation are two distinct concepts and that the assessee itself has claimed depreciation during the year which could not have been claimed without the setting up of the business. 3. That the order of Ld.CIT(A) is erroneous and is not tenable on facts and in law." 2. Brief facts of the case are as under. The return of income for the A.Y. 2011-12 was filed on 21.9.2011 declaring an income of Rs. 3,82,54,100/-. Subsequently, case was selected for scrutiny and statutory notice u/s 143(2) and 142(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before us for perusal. It has been submitted that appeal filed by Revenue before Hon'ble Delhi High Court against this order, has been dismissed. 6. Ld.Sr.D.R. fairly conceded the issue being squarely covered by the order of this Tribunal in assessee's own case for the immediately preceding A.Y. 7. We have perused the submissions advanced by both the sides in the light of the records placed before us. 8. On perusal of the order of this Tribunal in assessee's own case in ITA No.2644/Del/16 (supra), we observe that the facts are similar and identical for the year under consideration. It is observed that this Tribunal has decided the issue as under: "6. The issue that arises before us is whether excise duty refund claim made by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e project. Of the above, the company has lodged a claim of RS.12,46,29,0001- with the Director General of Foreign Trade (DGFT). DGFT vide letter dated 24 Feb., 2009 had admitted the claim of RS.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 (relevant extract of the notification is mentioned below), definition of date of commercial operations is given as under: a) In relation to a unit or block of the thermal generating station, the date declared by the generating company after demons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ITA No.05/2015, by holding as under. "8. Consequently, the finding of CIT(A) that the business of assessee had yet not been set up during the A.Y. 2009-10 and that all the costs incurred by it would have to be taken as capital work in progress cannot be faulted. Where there is a refund of excise duty it would go to reduce the project cost/capital work in progress since it is relatable only to the capital assets. Even for purpose of S.28(iiic) of the Act, the excise duty repaid to the assessee as draw back would have to relate to the business income of the assessee in order to be chargeable to tax under the head of 'profits and gains of business'. In the present case, however, it relates to the cost of acquisition of a capital asset whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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