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TMI Blog2024 (12) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... ness as the only source of income or whether it can be allowed against any source even other than the business income. Accordingly, we direct the AO to allow deduction u/s 80IA of the Act with reference to gross total income as assessed finally. Accordingly the ground raised by the assessee is allowed. Addition u/s 40(a)(ia) - non-deduction of TDS, despite the TDS being paid within the due date of filing the return - HELD THAT:- Though the assessee has furnished the necessary documents substantiating the claim of the assessee we are of the opinion that let it be examined at AO s level. In the present case the assessee itself disallowed the amount suo motto in the return of income but that is not a bar for making claim before the appellate body for allowing/deleting the said disallowance as it was wrongly disallowed. The case of the assessee finds support from the decision of the jurisdiction High /Court in the case of CIT Vs Britannia Industries Ltd. [ 2017 (7) TMI 502 - CALCUTTA HIGH COURT] AND Pruthvi Brokers [ 2012 (7) TMI 158 - BOMBAY HIGH COURT] - Thus we restore the issue to the file of ld. Assessing Officer with a direction to allow the claim if TDS is found to be deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Pradesh during the Financial Year 2012-13 to meet the power requirements of its paper and chemicals manufacturing unit at the same location. The electricity generated by Captive Power Plant was transferred to and wholly consumed by the assessee s Manufacturing Unit located at Amlai, Madhya Pradesh. The profits of the said CPP qualified for deduction under section 80IA (4)(iv) of the Act and assessee accordingly prepared the standalone accounts for the eligible unit in terms of section 80IA(5)/(7) of the Act the copy whereof is available at page no. 87 to 92 of the paper book. The transfer to power by the CPP to the manufacturing was reported as specified domestic transactions in terms of section 80IA(8) r.w.s. 92 BA of the Act and was duly reported by the Tax Auditor in form no. 3CEB. The specified domestic transactions were bench marked following comparable uncontrolled pricing method (hereinafter referred to CUP). The transfer of power was bench marked at the rate fixed as per MPERC retail orders i.e. the price at which the manufacturing unit would have otherwise bought power from unrelated third which worked out to weighted average of Rs. 7.756 per unit. The AO referred the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction under Section 80-IA would be on the lower side. Assessee had computed the profits and gains by taking Rs. 3.72 as the price of electricity per unit supplied by its captive power plants to its industrial units. The basis for taking this figure was that it was the rate at which the State Electricity Board was supplying electricity to its industrial consumers. Assessing officer repudiated such claim. According to him, the rate at which the assessee had supplied the surplus electricity to the State Electricity Board i.e., Rs. 2.32 per unit, should be the market value of electricity. Assessee cannot claim two rates for the same good i.e., electricity. When it supplies electricity to the State Electricity Board at the rate of Rs. 2.32 per unit, it cannot claim Rs. 3.72 per unit for supplying the same electricity to its sister concern i.e., the industrial units. This view of the assessing officer was confirmed by the CIT (A). 21. We have noticed that the Tribunal had rejected such contention of the revenue which has been affirmed by the High Court. In this proceeding, we are called upon to decide as to which of the two views is the correct one. 22. Reverting back to sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld set up a power generating unit having restrictions on the use of power generated and at the same time, the tariff at which the said power plant could supply surplus power to the State Electricity Board was also liable to be determined in accordance with the statutory requirements. In the present case, as the electricity from the State Electricity Board was inadequate to meet power requirements of the industrial units of the assessee, it set up captive power plants to supply electricity to its industrial units. However, the captive power plants of the assessee could sell or supply the surplus electricity (after supplying electricity to its industrial units) to the State Electricity Board only and not to any other authority or person. Therefore, the surplus electricity had to be compulsorily supplied by the assessee to the State Electricity Board and in terms of Sections 43 and 43A of the 1948 Act, a contract was entered into between the assessee and the State Electricity Board for supply of the surplus electricity by the former to the latter. The price for supply of such electricity by the assessee to the State Electricity Board was fixed at Rs. 2.32 per unit as per the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific consent that a private entity could set up a power generating unit. However, such a unit would have restrictions not only on the use of the power generated but also regarding determination of tariff at which the power generating unit could supply surplus power to the concerned State Electricity Board. Thus, determination of tariff of the surplus electricity between a power generating company and the State Electricity Board cannot be said to be an exercise between a buyer and a seller under a competitive environment or a transaction carried out in the ordinary course of trade and commerce. It is determined in an environment where one of the players has the compulsive legislative mandate not only in the realm of enforcing buying but also to set the buying tariff in terms of the extant statutory guidelines. Therefore, the price determined in such a scenario cannot be equated with a situation where the price is determined in the normal course of trade and competition. Consequently, the price determined as per the power purchase agreement cannot be equated with the market value of power as understood in the common parlance. The price at which the surplus power supplied by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the concept of arm s length value brought in by way of transfer pricing provisions in section 92BA of the Act, we note that this aspect has been considered by the Coordinate bench in the case of DCIT Vs Rungta Mines Ltd. ITA No. 286/Kol/2023 and rejected the revenue s arguments. 6. Therefore considering the above facts and circumstances and respectfully following the decision of the Hon ble Apex Court in the case of Jindal Steel Power Limited (supra), we set aside the order of ld. Assessing Officer and direct the ld. Assessing Officer to apply the rate at which the electricity was supplied by the State Electricity Board to the consumers. Accordingly, Grounds No. 1 to 5 are allowed. 7. The second issue raised by the assessee in ground no. 6 is against the restricting the deduction claimed u/s 80IA of the Act to the extent of business income as against the gross total income which was confirmed by DRP. We note that even this issue is squarely covered by the decision of Hon ble Apex Court in the case of CIT Vs Reliance Energy Ltd. (127 taxmann.com 69). In the said decision the Hon ble Court held that deduction u/s 80IA has to be allowed with reference to gross total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 179 of the paper book, which is an intimation under section 143(1) passed by the Centralized Processing Centre in assessment year 2020-21, submitted the deemed total income under section 115JB was taken at Rs. 15,43,27,305/- as per the assessee as well as per the Department. However, in the ITNS computation sheet, the figure was wrongly taken at Rs. 74,64,00,256/-. There appears to be an apparent mistake by the ld. Assessing Officer as the amount was wrongly taken in the ITNS computation sheet. Accordingly, we restore the issue to the file of ld. Assessing Officer to examine the issue afresh and correct the mistake. This ground no. 8 is allowed for statistical purposes. 10. Similarly in Ground No. 9, the assessee has challenged the mistake in ITNS computation sheet annexed to the order, wherein the income under the head other sources was stated at Rs. 3,34,56,807/- instead of correct figure of Rs. 40,50,884/-. 11. After examining the facts before us, we feel that there is an error at the end of the ld. Assessing Officer in taking the figure under the head other income in the ITNS computation sheet. Accordingly, we restore the issue to the file of ld. Assessing Officer to examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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