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TMI Blog2019 (4) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... 115JB at Rs. 27,33,44,869/-. The reason for filing revised return was stated that company has filed revised return claiming further deduction on account of power purchase price not debited to Profit and Loss account which was less claimed in the Original Return. Notice u/s 142(1) dated 06.11.2013 along with questionnaire was issued and served upon the assessee. In response, Company Secretary and CA attended on behalf of the assessee from time to time and furnished the details / explanation as called for during the course of assessment proceedings. The books of accounts and bills/vouchers were also produced and verified by the Assessing Officer. The Assessing Officer completed the assessment on 21.03.2013 and made addition of Rs. 8,02,20,769/- regarding power purchase price not debited to P & L account by the Assessee. The Assessing Officer further made addition of Rs. 16,84,82,870/- towards on account of set-off of brought forward business losses & unabsorbed Dep. as well as disallowance u/s 14A amounting to Rs. 53,624/- and disallowance of transmission charges u/s 40(a)(ia) amounting to Rs. 18,41,83,032/-. Being aggrieved by the Assessment Order the assessee filed appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Ground No. 3 taken by the appellant before him relating to allowing setoff of brought forward business loss and depreciation allowance while calculating the total income taxable. 5(b) That on facts and circumstances of the case Assessing Officer erred in not allowing setoff of brought forward business loss and depreciation allowance while calculating the total income taxable under the provisions of the Act other than section 115JB thereof in the impugned order under appeal. 6(a) That on the facts and in the circumstances of the case, the Learned CIT(Appeals) without application of mind erred in confirming the action of Assessing Officer in disallowing additional sum of Rs. 53,624 u/s 14 r.w. Rule 8D on the wrong pretext that the issue has been decided against the appellant by Hon'ble ITAT. 6(b) That the Learned CIT(Appeals) erred in confirming the action of the Assessing Officer in invoking the provisions of Rule 8D of the Income-tax Rules, 1962 for arriving at the amount disallowable u/s. 14A of the Act without satisfying the pre-conditions for application of the said provisions. 7(a) That on the facts and in the circumstances of the case, the learned CIT (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought forward business loss and depreciation allowance while calculating the total income taxable under the provisions of the Act other than section 115JB thereof in the impugned order under appeal." However, the CIT(A) at page 2 of his order vide paragraph 5 adjudicated ground No.2 while at paragraph 6 ground No.4. Thus, it is evident that ground No.3 has not been adjudicated by him. In view of the above, we allow ground Nos.5, 5(a) and 5(b) of assessee's appeal by directing the CIT(A) to adjudicate ground No.3 raised before him. 7. Ground Nos. 6(a) and 6(b) are with regard to disallowance under Section 14A amounting to Rs. 53,624/-. 8. We have heard the arguments of both the sides and perused the material placed before us. We find that during the year under consideration, the assessee has earned total dividend income of Rs. 1,60,329/- from the units of UTI. The assessee himself has offered the disallowance under Section 14A amounting to Rs. 42,803/-. The Assessing Officer has worked out the disallowance under Rule 8D at Rs. 96,427/- and accordingly, he made the additional disallowance of Rs. 53,624/- (96,427 - 42,803). Section 14A reads as under :- "14A. Expenditure incur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/- made by the Assessing Officer. 9. As regards Ground No. 7 (a) to 7(d) relating to disallowance under Section 40(a)(ia) for non-deduction of tax on payment of transmission charges amounting to Rs. 18,41,83,032/-, the Ld. AR submitted that the issue is covered in favour of the assessee by the decision of the Tribunal in assessee's own case. The Ld. DR relied upon the Assessment Order and the order of the CIT(A). 10. We have heard both the parties and perused all the relevant material available on record. The Tribunal in A.Y. 2012-13 being ITA No. 4878/Del/2016 held as under: 17. We have heard both the parties and perused all the records. As regards Ground Nos. 1, 2, 3, 4(a), 4(b), 5(a) and 5(b) are not pressed by the Ld. AR as the same are academic and becomes infructuous. Therefore, Ground Nos. 1, 2, 3, 4(a), 4(b), 5(a) and 5(b) are dismissed. As relates to Ground Nos. 6(a) to 6(e) regarding disallowance under Section 40(a)(ia) for non-deduction of tax on payment of transmission charges the same is covered in favour of the assessee by the decision of the Tribunal in assessee's own case for A.Y. 2011-12 & 2012-13 (ITA Nos. 5442 & 5443/DEL/2015 orders dated 29.11.2017 16.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, we uphold the action of the Ld. CIT(A) and reject the ground raised by the Revenue. ......" As relates to Ground No. 6(a) to (e) the Hon'ble Delhi High Court in case of CIT vs. Delhi Transco Ltd. (supra) considering the provisions of section 194J of the Act held that wheeling charges paid for transportation of electricity cannot be characterized as fee for technical service. Relevant portion is reproduced below: "31 The system operated by PGCIL and used for transmission of electricity is no doubt maintained by skilled technical personnel professional. This also ensures that PGCIL complies with the standards and norms put in place by the statutory regulations. However, the beneficiary of such services is PGCIL itself. PGCIL is operating and maintaining its own system using the service of engineers and qualified technicians. PGCIL is in that process not providing technical services to others, including DTL. 32. A comparison could be made with the system of distribution of some other commodity like water. It might require the operation and maintenance of water pumping station and the maintenance of a network of pipes. However, what is conveyed through the pipes and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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