DCIT, Circle - 5(1) , Kolkata v. M/s. Kesoram Industries Ltd., , Kolkata

ITA 1443/KOL/2019 | 2013-2014
Pronouncement Date: 29-11-2019 | Result: Dismissed

Appeal Details

RSA Number 144323514 RSA 2019
Assessee PAN AABCK2417P
Bench Kolkata
Appeal Number ITA 1443/KOL/2019
Duration Of Justice 5 month(s) 17 day(s)
Appellant DCIT, Circle - 5(1) , Kolkata
Respondent M/s. Kesoram Industries Ltd., , Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 29-11-2019
Last Hearing Date 31-10-2019
First Hearing Date 31-10-2019
Assessment Year 2013-2014
Appeal Filed On 12-06-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY HONBLE ACCOUNTANT MEMBER & SHRI ABY T. VARKEY HONBLE JUDICIAL MEMBER] I.T.A. NO. 1443/KOL/2019 ASSESSMENT YEAR: 2013-14 DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-5(1) KOLKATA......................APPELLANT VS. M/S. KESORAM INDUSTRIES LTD............................RESPONDENT BIRLA BUILDING 8 TH FLOOR 9/1 R.N. MUKHERJEE ROAD KOLKATA 700 001 [PAN: AABCK 2417 P] APPEARANCES BY: SHRI AKKAL DUDHEWALA FCA APPEARED ON BEHALF OF THE ASSESSEE. SHRI DHRUBAJYOTI RAY JCIT SR. D/R APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 31 ST 2019 DATE OF PRONOUNCING THE ORDER : NOVEMBER 29 TH 2019 O R D E R PER J. SUDHAKAR REDDY AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 22 KOLKATA (HEREINAFTER THE LD.CIT(A)) PASSED U/S. 250 OF THE INCOME TAX ACT 1961 (THE ACT) DT. 31/12/2018 FOR THE ASSESSMENT YEAR 2013-14. 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 93 (NINETY THREE) DAYS IN FILING OF THIS APPEAL. AFTER PERUSING THE PETITION FOR CONDONATION WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL ON TIME. HENCE THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3. AFTER HEARING RIVAL CONTENTIONS WE FIND THAT GROUND NOS. 1 TO 5 OF THE APPEAL RELATING TO A SOLE SUBSTANTIVE ISSUE READS AS FOLLOWS:- 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN ACCEPTING ASSESSEE'S CLAIM AND ALLOWING RELIEF AS THE HON'BLE ITAT KOLKATA HAS TAKEN A CONSISTENT VIEW ON THIS MATTER AND THE MATTER IS BEFORE THE JURISDICTIONAL HIGH COURT PENDING FOR DECISION. ( EMPHASIS OURS). 2. 'WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE THE LD. CIT(A)-22 KOLKATA ERRED IN UPHOLDING THE INTERNAL CUP APPLIED BY THE ASSESSEE TO BENCHMARK THE TRANSACTION (SALE ON POWER) TO ITS AE AS WELL AS CLAIMING DEDUCTION UPTO THAT EXTENT UNDER SECTION 80-IA OF THE ACT WHEREAS AS PER EXPLANATION TO SECTION 801A(8) GOODS OR SERVICES MEANS: (I) THE PRICE THAT SUCH GOODS OR SERVICES WOULD ORDINARILY FETCH IN THE OPEN MARKET; OR (II) THE ARM'S LENGTH PRICE AS DEFINED IN CLAUSE (IT) OF SECTION 92F . WHERE THE TRANSFER O TRANSACTION REFERRED TO IN SECTION 92BA '. 3. 'WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE THE LD. CIT(A) KOLKATA ERRED IN NOR APPRECIATING THE FACT THAT THE ASSESSEE'S GENERATING UNIT CANNOT AS SUCH CLAIM ANY BENEFIT UNDER SECTION 801A OF THE ACT COMPUTED ON THE BASIS OF RATES CHARGED BY THE DISTRIBUTION LICENSEE FROM THE CONSUMER. THE BENEFIT CAN ONLY BE CLAIMED ON THE BASIS OF THE RATES FIXED BY THE TARIFF REGULATION COMMISSION FOR SALE OF EL COMPANIES TO THE DISTRIBUTION COMPANY. 4. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO EXAMINE THE FACTS OF THE INSTANT CASE UNDER THE R.W.S . 92BA AND 92F OF THE INCOM PRONOUNCEMENT OF THE JURISDICTIONAL HON'BLE CALCUTTA HIGH COURT. 5. 'THAT THE APPELLANT CRAVES FOR LEAVE TO ADD DELETE AMEND OR MODIFY ANY GROUND BEFORE OR AT THE TIME OF APPELLATE PROCEEDINGS.' 4. A PERUSAL OF THE SAME DEMONSTRATES THAT THE ISSUE IN QUESTION IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS 2008 I.T.A. NO. 505/KOL/2017 & ORS. CHALLENGED THIS ORDER OF THE TRIBUNAL BEFORE THE HONBLE CALCUTTA HIGH COURT WE ARE BOUND BY THE ORDER OF THE CO HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND D REVENUE. 5. IN THE RESULT APPEAL OF THE KOLKATA THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 29.11.2019 {SC SPS} 2 EXPLANATION TO SECTION 801A(8) OF THE ACT 'MARKET VALUE' IN RELATION TO ANY GOODS OR SERVICES MEANS: - (I) THE PRICE THAT SUCH GOODS OR SERVICES WOULD ORDINARILY FETCH IN THE OPEN MARKET; OR (II) THE ARM'S LENGTH PRICE AS DEFINED IN CLAUSE (IT) OF SECTION 92F . WHERE THE TRANSFER O F SUCH GOODS OR SERVICES IS A SPECIFIED DOMESTIC TRANSACTION REFERRED TO IN SECTION 92BA '. 3. 'WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE THE LD. CIT(A) KOLKATA ERRED IN NOR APPRECIATING THE FACT THAT THE ASSESSEE'S GENERATING SUCH CLAIM ANY BENEFIT UNDER SECTION 801A OF THE ACT COMPUTED ON THE BASIS OF RATES CHARGED BY THE DISTRIBUTION LICENSEE FROM THE CONSUMER. THE BENEFIT CAN ONLY BE CLAIMED ON THE BASIS OF THE RATES FIXED BY THE TARIFF REGULATION COMMISSION FOR SALE OF EL ECTRICITY BY THE GENERATING COMPANIES TO THE DISTRIBUTION COMPANY. 4. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO EXAMINE THE FACTS OF THE INSTANT CASE UNDER THE PROVISIONS OF SECTION 80LA . 92BA AND 92F OF THE INCOM E TAX ACT 1961 AND RELEVANT JUDICIAL PRONOUNCEMENT OF THE JURISDICTIONAL HON'BLE CALCUTTA HIGH COURT. 5. 'THAT THE APPELLANT CRAVES FOR LEAVE TO ADD DELETE AMEND OR MODIFY ANY GROUND BEFORE OR AT THE TIME OF APPELLATE PROCEEDINGS.' SAME DEMONSTRATES THAT THE ISSUE IN QUESTION IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS 2008 -09 & 2009-10 IN I.T.A. NO 1722/KOL/2012 I.T.A. NO. 505/KOL/2017 & ORS. ORDER DT. 26/04/2018. THOUGH THE REVENUE HAS CHALLENGED THIS ORDER OF THE TRIBUNAL BEFORE THE HONBLE CALCUTTA HIGH COURT WE ARE BOUND BY THE ORDER OF THE CO - ORDINATE BENCH OF THE TRIBUNAL ON THIS ISSUE. HENCE WE UPHOLD THE ORDER OF THE LD. CIT(A) AND D ISMISS THIS APPEAL OF THE IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. KOLKATA THE 29 TH DAY OF NOVEMBER 2019 . [ J. SUDHAKAR REDDY] ACCOUNTANT MEMBER I.T.A. NO. 1443/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. KESORAM INDUSTRIES LTD OF THE ACT 'MARKET VALUE' IN RELATION TO ANY (I) THE PRICE THAT SUCH GOODS OR SERVICES WOULD ORDINARILY FETCH IN (II) THE ARM'S LENGTH PRICE AS DEFINED IN CLAUSE (IT) OF SECTION 92F . F SUCH GOODS OR SERVICES IS A SPECIFIED DOMESTIC 3. 'WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE THE LD. CIT(A) -22 KOLKATA ERRED IN NOR APPRECIATING THE FACT THAT THE ASSESSEE'S GENERATING SUCH CLAIM ANY BENEFIT UNDER SECTION 801A OF THE ACT COMPUTED ON THE BASIS OF RATES CHARGED BY THE DISTRIBUTION LICENSEE FROM THE CONSUMER. THE BENEFIT CAN ONLY BE CLAIMED ON THE BASIS OF THE RATES FIXED BY ECTRICITY BY THE GENERATING 4. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED PROVISIONS OF SECTION 80LA E TAX ACT 1961 AND RELEVANT JUDICIAL 5. 'THAT THE APPELLANT CRAVES FOR LEAVE TO ADD DELETE AMEND OR MODIFY ANY SAME DEMONSTRATES THAT THE ISSUE IN QUESTION IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE I.T.A. NO 1722/KOL/2012 THOUGH THE REVENUE HAS CHALLENGED THIS ORDER OF THE TRIBUNAL BEFORE THE HONBLE CALCUTTA HIGH COURT WE ORDINATE BENCH OF THE TRIBUNAL ON THIS ISSUE. ISMISS THIS APPEAL OF THE . SD/- J. SUDHAKAR REDDY] ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1. M/S. KESORAM INDUSTRIES LTD BIRLA BUILDING 8 TH FLOOR 9/1 R.N. MUKHERJEE ROAD KOLKATA 700 001 2. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 3. CIT(A)- 4. CIT- 5. CIT(DR) KOLKATA BENCHES KOLKATA. 3 OPY OF THE ORDER FORWARDED TO: M/S. KESORAM INDUSTRIES LTD DEPUTY COMMISSIONER OF INCOME TAX CIRCLE -5(1) KOLKATA 5. CIT(DR) KOLKATA BENCHES KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA BENCHES I.T.A. NO. 1443/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. KESORAM INDUSTRIES LTD TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA BENCHES