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TMI Blog2019 (1) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed the reopening by following the decision of the Tribunal. Before us, DR has not pointed out any error committed by the ld. CIT(A). He simply relied on the grounds. For the Assessment Year 2009-10 original assessment was completed under section 143(3) on 30/12/2010. Subsequently, the order was revised under section 143(3) r. w. s. 153C and 263 dated 17/05/2013 again assessment was reopened and assessment is completed under section 143(3) r. w. s. 147 of the Act dated 31/08/2016. For the remaining assessment years, assessments were completed under section 143(3) of the Act. Therefore, the CIT(A) came to a conclusion that it is a change of opinion and therefore, notice issued under section 148 of the Act is not valid. We find no reason to interfere with the order passed by the ld. CIT(A). - ITA Nos. 481 to 483/VIZ/2018 And C. O. Nos. 135 to 137/VIZ/2018 - - - Dated:- 25-1-2019 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER For The Assessee : Shri G.V.N. Hari Advocate For The Department : Shri V. Appala Raju Sr. DR ORDER PER V. DURGA RAO, JUDICIAL MEMBER These appeals by the revenue and the Cross Objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f paddy milling and sale of rice and its bi-products, apart from generation of bio-mass. Consequent to search and seizure operation conducted on 03/02/2009, assessee filed its return of income by declaring total income of ₹ 72,96,860/- after claiming deduction under section 80IA of the Act. The assessment was completed under section 143(3) r. w. s. 153A of the Act on 30/12/2010 and the assessment under section 153C r. w. s. 263 was completed on 17/05/2013 assessing the income under normal provisions at ₹ 1,72,83,870/- and total income was computed. In the assessment order, the Assessing Officer observed that while calculating the eligible deduction under section 80IA from the profits derived from the power generation undertaking adopted sale value of power at ₹ 4. 50 per unit being the rate paid by the assessee-company to APTRANSCO, however, APTRANSCO is seen to be adopting ₹ 3. 25 per unit from the units obtained from other power plants. Hence, the claim of deduction under section 80IA at ₹ 4. 50 per unit is found to be not in order and the Assessing Officer added the excess claim of deduction under section 80IA of ₹ 85,77,250/- to the total inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am both the issues are decided in favour of the appellant. 7. On being aggrieved, revenue carried the matter in appeal before the tribunal. 8. Ld. Departmental Representative relied on the grounds of appeal and supported the order passed by the Assessing Officer. 9. On the other hand, ld. counsel for the assessee has submitted that the issue involved in this appeal is squarely covered by the decision of the coordinate bench of the Visakhapatnam tribunal in assessee s own case in ITA Nos. 138 to 140/VIZ/2016 for the Assessment Years 2007-08, 2008-09 2012-13, by order dated 25/10/2017 and strongly supported the order passed by the ld. CIT(A). 10. We have heard both the parties, perused the material available on record and gone through orders of the authorities below. 11. The case of the Assessing Officer is that APTRANSCO adopted ₹ 3. 25 per unit as has been obtained units from other power plants, as such it is seen that the rate per unit adopted for claim of deduction under section 80IA at ₹ 4. 50 per unit found to be not in order, therefore, the Assessing Officer has disallowed excess claim made by the assessee under section 80IA and the same is add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness, should correspond to the market value of such goods or services. Ostensibly, in this case, the A. O. was of the opinion that the consideration for transfer of power to captive consumption to the yarn manufacturing unit was recorded at a consideration which did not correspond to its market value. In other words, A. O perceived ₹ 2. 70 as the market value, being the price at which assessed sold power to Electricity Board and not ₹ 3. 50 per unit at which assessee, in turn, purchased the power from the Electricity Board for its yarn manufacturing unit. In terms of Electricity (Supply) Act, 1948, legislature has put restrictions on establishment on power generating units and their functioning. Power generating concerns are allowed to use power for captive consumption of their other units, and the surplus, if any, has to be supplied or transferred to State Electricity Boards. Section 43 of Electricity (Supply) Act, 1948 authorizes State Electricity Board to enter into arrangements for purchase and sale of electricity under certain conditions mentioned therein. Section 43A of the said Act also lays down rules and conditions for determining tariff from the sale of elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined on the basis of actual lending cost of electricity purchased by the assessee from Tamilnadu Electricity Board and the tribunal has come to a conclusion by following the decision in the case of Jindal Steel and Power Ltd. (supra) and also the case Bombay Bench of the Tribunal in the case of West Coast Paper Mills Ltd. Vs. JCIT [100 TTJ (Mumbai) 833]. Therefore, respectfully following the decision of the coordinate bench of the tribunal in the case of M/s. Eveready Spinning Mills Pvt. Ltd. (supra), we do not find any reason to interfere with the order of the ld. CIT(A). Thus, this appeal filed by the revenue is dismissed. 12. Therefore, respectfully flowing the decision of the ITAT, Visakhapatnam Bench in the case of assessee s itself in ITA No. 140/VIZ/2016, we find no reason to interfere with the order passed by the ld. CIT(A). Thus, the ground Nos. 1 to 3 raised by the Revenue are dismissed. 13. Insofar as ground No. 4 raised by the Revenue is concerned, the contention of the department is that the issue decided in favour of the assessee by the ITAT, Visakhapatnam Bench has been tested before the Hon'ble Jurisdictional High Court, therefore, ld. CIT(A) ought not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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