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TMI Blog2016 (7) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... s held the issues in favour assessee. We, therefore, decide the appeals by way of this common judgement. 2. These appeals were admitted by this court for consideration of the following substantial questions of law: Tax Appeal No. 1133 of 2011: "(A) Whether, the Appellate Tribunal is right in law and on facts in allowing deduction under section 80- IA(4) of the Income-tax Act, 1961, for generating power for captive consumption? (B) Whether the Appellate Tribunal is right in law and on facts in allowing withdrawal from the revaluation reserve from the book profit under section 115JB of the Act?" Tax Appeal No. 912 of 2010: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law and on facts in not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1133 of 2011 is concerned, the learned counsel for the revenue has contended that the assessee has claimed deduction under section 80-IA(4) of the Income-tax Act on COGEN plants by applying market rate. The Assessing Officer has disallowed the claim of the assessee on the ground that there was no income in respect of these plants. On appeal before the Commissioner (Appeals), following the decision in assessee's own case, the claim of the assessee was allowed by the Commissioner (Appeals). In further appeal by revenue, the Tribunal upheld the decision of the Commissioner (Appeals). Hence the revenue is before us. 4. Learned counsel for the assessee Mr. Soparkar has submitted that this question is covered by the decision of this court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax-IV v. Shah Alloys Ltd., decided on 22.11.2011. He has further relied on the decision of Calcutta High Court in the case of Commissioner of Income-tax, Kolkata-IV, Kolkata v. Kanoria Chemicals & Industries Ltd., reported in (2013) 35 taxmann.com 566 (Calcutta) where the court has held as under: "It is price at which assessee transferred electricity generated by it eligible business to its other business which would be considered for purpose of computation of profits and gains of eligible business in terms of section 80-IA(8) and not lesser price at which surplus electricity was sold to Electricity Board." 10.2 The learned counsel for the assessee has further relied on the decision in the case of Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tamilnadu Petro Products Ltd. v. Assistant Commissioner of Income-tax reported in 338 ITR 643 where it is held as under: "The revenue's contention had no application to the case on hand. Inasmuch the issue was to be dealt with in the light of section 80-IA and in particular subclause (iv) of the said section which provides for the benefit even in respect of electricity generation plant established by the assessee and the income derived from such enterprise of the assessee, it would have to be held that the assessee fully complied with the requirements prescribed under section 80-IA in order to avail the benefits provided therein. Therefore, the contention based on the interpretation of the expression `derived from' could have no applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in favour of the assessee. Following the same, we answer this question in favour of the assessee and against the revenue. 8. As far as question (A) of Tax Appeal No. 913 of 2010 is concerned, this question is identical to the questions (C) and (D) in Tax Appeal No. 471 of 2009 in the case of Commissioner of Income-tax v. Alembic Limited, where we have held the issues in favour of the assessee and against the revenue. In that view of the matter, we answer question (A) in favour of the assessee and against the revenue. 9. So far as question (B) of Tax Appeal No. 913 of 2010 is concerned, this will be governed by the decision in Tax Appeal No. 472 of 2009 in the case of Commissioner of Income-tax v. Alembic Limited. Hence we answer this q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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