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TMI Blog2019 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,000/on account of payment made by assessee to S. K. Gupta and his group of companies ignoring the facts of the case, including the incapacity of Shri S.K.Gupta to render such services, as also the spontaneous statement given by him at the time of search? (b) Whether ITAT was correct in holding a divergent view in the assessee's case when the coordinate bench at Delhi, under the same fact, upheld the disallowance in the case of Link Engineers Pvt. Ltd.? (c) Whether, on the facts and in the circumstances of the case and in law, the ld. Tribunal was right in upholding the decision of the ld.CIT(A) who had deleted the addition made by the then AO by restricting the deduction u/s 80IA at Rs. 48,76,82,681/as against Rs. 131,43,30,575/clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal had held in favour of the assessee. 3. Having heard learned counsel for the parties and having perused documents on record, we notice that the entire issue is based on the appreciation of materials on record. CIT (Appeals) and the Tribunal concurrently held that there was sufficient evidence justifying the payment to Shri S.K.Gupta, a Consultant and that the Assessing Officer other than relying upon the retracted statements of Shri Gupta recorded in search, had no independent material to make the additions. No question of law arises. 4. Question (c) pertains to the dispute between the department and the assessee regarding the rate at which the electricity generated by one unit of the assessee-company and provided to the another be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case, we are of the view that the profits of the business of generation of power worked out by the Assessee on the basis of the price that it paid to TPC for purchase of power continues to be the best basis even after the order of MERC and therefore the same has to be accepted as was done in the past and as approved by the ITAT in Assesssee's case. We therefore dismiss ground No.4 of the revenue." 7. Counsel for the assessee pointed out that the judgment of the Tribunal in case of Reliance Infrastructure limited(supra) was carried in appeal by the revenue before the High Court in Income Tax Appeal No.2180 of 2011, such appeal was dismissed making following observations: "6. As far as question (d), namely, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Additionally, we also notice that similar issue came up for consideration before Chhattisgarh High Court in case of Commissioner of Income-tax, Raipur Vs. Godawari Power & Ispat Limited (2014) 42 taxmann.com 551 (Chhattisgarh), in which the Court held and observed as under: "31. The market value of the power supplied to the Steel-Division should be computed considering the rate of power to a consumer in the open market and it should not be compared with the rate of power when it is sold to a supplier as this is not the rate for which a consumer or the Steel Division could have purchased power in the open market. The rate of power to a supplier is not the market rate to a consumer in the open market. 32. In our opinion, the AO committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and the consideration recorded in the accounts of the eligible business does not correspond to market value of such goods. Term "Market Value" is further explained in explanation to said subsection to mean in relation to any goods or services, price that such goods or services will ordinarily fetch in the open market. To our mind sum of Rs. 4.51 per unit of electricity only represented cost of electricity generation to the assessee and not the market value thereof. It is not in dispute that the GEB charged Rs. 5 per unit for supplying electricity to other industries including non eligible unit of the assessee itself. Tribunal therefore, while adopting the said base figure and excluding excise duty therefrom to work out Rs. 4.90 as the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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