JSW ENERGY LTD, MUMBAI v. ASST CIT CIR 11(5), Bangalore

ITA 463/MUM/2014 | 2008-2009
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 46319914 RSA 2014
Assessee PAN AAACJ8109N
Bench Mumbai
Appeal Number ITA 463/MUM/2014
Duration Of Justice 1 year(s) 6 month(s) 11 day(s)
Appellant JSW ENERGY LTD, MUMBAI
Respondent ASST CIT CIR 11(5), Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 31-07-2015
Date Of Final Hearing 21-04-2015
Next Hearing Date 21-04-2015
Assessment Year 2008-2009
Appeal Filed On 20-01-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH MUMBAI BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI SANJAY GARG JUDICIAL MEMBER ITA NO 463MUM/2014 ASSESSMENT YEAR: - 2008-09.) M/S JSW ENERGY LIMITED JSW CENTRE BANDRA KURLA COMPLEX BANDRA (E) MUMBAI 400 051. PAN:-AAACJ8109N VS.` ACIT CENTRAL CIRCLE 46 AAYKAR BHAVAN M.K. ROAD MUMBAI. APPELLANT RESPONDENT ITA NO 982/MUM/2013 ASSESSMENT YEAR: - 2001-02.) ACIT CENTRAL CIRCLE 46 ROOM NO. 659 6 TH FLOOR AAYKAR BHAVAN M.K. ROAD MUMBAI- 20. VS.` M/S JSW ENERGY LTD. JSW CENTRE BKC BANDRA (E) MUMBAI 400 051. PAN:-AAACJ8109N APPELLANT RESPONDENT ORDER PER G.S. PANNU AM THE CAPTIONED CROSS APPEALS ARE DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] DATED 19.11.2013 WHICH IN-TURN HAS ARISEN FROM AN ORDER PASSED ASSESSEE BY SHRI ARVIND SONDE REVENUE BY SHRI SHASHI BHUSAN PRASAD DATE OF HEARING 27.05.2015 DATE OF PRONOUNCEMENT 31 .0 7 .2015 2 M/S JSW ENERGY LIMITED PAGE 2 OF 20 BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME T AX ACT 1961(HEREINAFTER REFERRED TO AS THE ACT) DATED 21 .10.2010 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. IN THE APPEAL OF THE ASSESSEE THE FOLLOWING GRO UNDS OF APPEAL HAVE BEEN RAISED. 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER OF NOT ALLOWING DEDUCTION U/S. 80IA OF THE INCOME T AX ACT 1961 ON INCOME FROM SALE OF CERTIFIED EMISSION REDUCTION (CER) 2. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT(A) ERRED IN HOLDING THAT RECEIPT FROM SALE OF CERS ARE NOT CAPITAL RECEIPTS AND ARE ELIGIBLE TO TAX AS INCOME FROM BUSINESS AND PROFESSION. 3. THE LEARNED CIT(A) ERRED IN LAW IN NOT FOLLOWING TH E DECISION OF HONBLE ITAT HYDERABAD BENCH WHICH IS THE ONLY DECISION ON THE S UBJECT AND THEREFORE BINDING ON HIM FOLLOWING PRINCIPLE OF JUDICIAL HIER ARCHY AS UPHELD BY HONBLE JURISDICTIONAL HIGH COURT. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE U/S 14A READ WITH RULE 8D WITHOUT CONSIDERING THE FACT THAT DURING THE YEA R UNDER CONSIDERATION THE APPELLANT HAD NOT EARNED ANY INCOME WHICH IS NOT CH ARGEABLE TO TAX; AND IN THE APPEAL OF THE REVENUE THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN DISALLOWANCE OF EXPENSES MADE BY THE AO ON ACCOUNT OF INTEREST U/S. 14A READ WITH RULE 8D(II) OF RS. 15 32 12 850/- WITHOUT APPRECIATING THE FACT THAT THE INTEREST EXPENSES ARE ATTRIBUTABLE TO THE INVESTMEN TS MADE BY THE ASSESSEE IN THE SHARES OF ITS SUBSIDIARY COMPANY AND WITHOUT GIVING ANY JUSTIFICATION THAT THE INVESTMENT MADE BY THE ASSESSEE ARE NOT OUT OF BORR OWED FUNDS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW ADDITIONAL DEDUC TION U/S. 80IA OF RS. 2 17 95 435/- ON ACCOUNT OF TOTAL ADMINISTRATIVE EX PENSE DISALLOWED U/S. 14A OF RS. 5 29 15 000/- INSPITE OF THE FACT THAT THE AO A LREADY ALLOWED DEDUCTION U/S. 80IA OF RS. 3 11 19 565/-. 3 M/S JSW ENERGY LIMITED PAGE 3 OF 20 3. IN THE APPEAL OF THE ASSESSEE THE SUBSTANTIVE D ISPUTE RELATES TO THE INCOME EARNED BY THE ASSESSEE ON SALE OF CERTIFIED EMISSION REDUCTIONS ( CERS) UNDER THE CDM PROJECT OF UNITED NATIONS. IN THIS CONTEXT THE RELEVANT FACTS ARE THAT ASSESSEE IS A COMPANY INCORPORATED U NDER THE PROVISIONS OF COMPANIES ACT 1956 AND IS INTER ALIA ENGAGED IN THE BUSINESS OF GENERATION OF POWER FROM THERMAL SOURCES. FOR THE YEAR UNDER C ONSIDERATION IT FILED A RETURN OF INCOME WHICH INTER-ALIA INCLUDED A CLAIM OF EXEMPTION U/S 80IA OF THE ACT WITH RESPECT TO THE PROFITS DERIVED FROM TH E BUSINESS OF GENERATION OF POWER. ASSESSING OFFICER NOTED THAT THE TOTAL TURN OVER SHOWN BY THE ASSESSEE INCLUDED RECEIPTS OF RS. 327.56 CRORES FROM SALE O F CERS UNDER CDM PROJECT OF UNITED NATIONS; AND SUCH CONSIDERATION ON SALE OF C ERS WAS CONSIDERED AS A PART OF THE INCOME FROM BUSINESS OF GENERATION OF POWER AND ACCORDINGLY DEDUCTION U/S 80IA OF THE ACT WAS CLAIMED ON SUCH A MOUNT ALSO. THE ASSESSING OFFICER WAS OF THE VIEW THAT RECEIPT FROM CERS WOUL D NOT CONSTITUTE AN INCOME DERIVED FROM THE ELIGIBLE BUSINESS OF GENERATION OF POWER AND THEREFORE HE EXCLUDED THE CERS RECEIPTS FROM THE PROFITS OF BUSI NESS ELIGIBLE FOR EXEMPTION U/S 80IA OF THE ACT. 4. IN APPEAL BEFORE THE CIT(A) ASSESSEE ASSAILED T HE ORDER OF THE ASSESSING OFFICER DENYING EXEMPTION U/S 80IA OF THE ACT WITH RESPECT TO THE CERS RECEIPTS. ACCORDING TO THE ASSESSEE SUCH INCOME CO NSTITUTED AN INCOME DERIVED FROM THE BUSINESS OF GENERATION OF POWER A ND WAS THUS ELIGIBLE FOR THE CLAIM OF EXEMPTION U/S 80IA OF THE ACT. APART T HEREFROM ASSESSEE RAISED 4 M/S JSW ENERGY LIMITED PAGE 4 OF 20 ANOTHER PLEA TO THE EFFECT THAT CERS RECEIPT WAS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX. BOTH THE AFORESAID PLEAS OF THE ASSESSEE HAVE BEEN NEGATED BY THE CIT(A). ACCORDING TO THE CIT(A) THOUGH THE CERS RECEIPTS CONSTITUTED REVENUE RECEIPTS ACCRUING IN THE COURSE OF BUSINESS ACTIVITY BUT THE SAME COULD NOT BE CONSTRUED AS BEING DERIVED FROM THE BUSINESS OF GENERATION OF POWER. THEREFORE HE NEGATED THE PLEA OF THE ASSESS EE FOR EXEMPTION U/S 80IA OF THE ACT; AND THE PLEA THAT CERS RECEIPTS ARE CA PITAL RECEIPTS NOT CHARGEABLE TO TAX WAS ALSO REJECTED ON THE GROUND THAT THE SAM E WAS EARNED IN THE COURSE OF CARRYING ON BUSINESS ACTIVITY. IN THIS BACKGROU ND ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US THE LD. REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE STAND OF THE ASSESSEE THAT THE CERS RECEIPTS ARE NO T REVENUE RECEIPTS BUT THEY ARE CAPITAL RECEIPTS NOT CHARGEABLE TO TAX HAS SINC E BEEN UPHELD BY THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. MY HOME POWER LTD. [2014] 365 ITR 82 (AP). 6. THE LD. DR APPEARING FOR THE REVENUE DID NOT CON TEST THE POSITION THAT THE JUDGMENT OF HONBLE ANDHRA PRADESH HIGH COURT I N THE CASE OF MY HOME POWER LTD. (SUPRA) FULLY COVERS THE CONTROVERSY. SO HOWEVER HE HAS REFERRED TO A DECISION OF COCHIN BENCH OF THE TRIBUNAL IN THE C ASE OF APOLLO TYRES LTD. VS. ACIT [2014] 31 ITR (TRIB.) 477 (COCHIN) TO SAY THAT THE INCOME ON SALE OF CERS IS A BENEFIT RESULTING OUT OF THE BUSINESS ACTIVITY AND IS THUS LIABLE TO BE CONSIDERED AS A REVENUE RECEIPT. 5 M/S JSW ENERGY LIMITED PAGE 5 OF 20 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. FACTUALLY SPEAKING THE CERTIFIED EMISSION REDUCTIONS (CERS) WHICH UNDE R COMMON PARLANCE IS KNOWN AS CARBON CREDITS IS ONE OF THE OUTCOMES OF THE KYOTO PROTOCOL WHICH IS AN INTERNATIONAL TREATY IN FORCE SINCE FEBRUARY 2005 FOR REDUCTION IN THE EMISSION OF GREEN HOUSE GASES(GHG). THE TRADING IN CERS OR CARBON TRADING IS A TRANSACTION WHICH INVOLVES SALE OF CARBON CREDITS BY AN ENTITY WHICH HAS OBTAINED SUCH CREDITS TO ANOTHER ENTITY WHICH IS N OT ABLE TO ACHIEVE THE PRESCRIBED REDUCTION IN THE EMISSION OF GREEN HOUSE GASES ON ITS OWN. THE ISSUE BEFORE US RELATES TO THE INCOME EARNED BY THE ASSESSEE ON SALE OF CERS OR CARBON CREDITS. IN THE RETURN OF INCOME ASSESSEE C ONSIDERED SUCH INCOME AS REVENUE IN NATURE AND FURTHER TREATED IT AS AN INC OME DERIVED FROM THE ELIGIBLE BUSINESS OF GENERATION OF POWER AND CLAIMED EXEMPTI ON U/S 80IA OF THE ACT. THE ASSESSING OFFICER ACCEPTED THAT THE IMPUGNED IN COME WAS A BUSINESS INCOME; BUT ACCORDING TO HIM SAID INCOME WAS NOT A N INCOME DERIVED FROM THE ELIGIBLE BUSINESS OF GENERATION OF POWER AND T HE CLAIM OF EXEMPTION U/S 80IA OF THE ACT WAS DENIED. BEFORE THE CIT(A) ASS ESSEE NOT ONLY ASSAILED THE DENIAL OF EXEMPTION U/S 80IA OF THE ACT BUT RAISED AN ALTERNATE PLEA TO THE EFFECT THAT THE RECEIPTS ON ACCOUNT OF SALE OF CERS OR THE CARBON CREDITS WAS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX. THE CIT(A) H ELD THAT THE SAID RECEIPTS ACCRUED TO THE ASSESSEE IN THE COURSE OF CARRYING ON ITS BUSINESS AND THEREFORE THE ASSESSING OFFICER WAS CORRECT IN CON SIDERING IT AS RECEIPTS OF BUSINESS. 6 M/S JSW ENERGY LIMITED PAGE 6 OF 20 8. BEFORE THE CIT(A) ASSESSEE HAD PRESSED INTO SER VICE THE DECISION OF HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF. MY HOME POWER LTD. VS. DCIT VIDE ITA NO. 1114/HYD/2004 HOLDING THAT SALE OF CA RBON CREDITS WAS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX. NOTABLY THE DECISIO N OF HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF MY HOME POWER LTD. (SUPRA) CAME UP BEFORE THE HONBLE ANDHRA PRADESH HIGH COURT WHEREIN THE FOLL OWING QUESTIONS OF LAW WERE RAISED:- 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW ITAT IS CORRECT IN HOLDING THAT SALE OF CARBON CREDITS IS TO BE CONSIDERED AS CAPITAL RECEIPT AND NOT LIABLE FOR TAX UNDER ANY HEAD OF INCO ME UNDER INCOME TAX ACT 1961? 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW ITAT IS CORRECT IN HOLDING THAT THERE IS NO COST OF ACQUISITIO N OR COST OF PRODUCTION TO GET ENTITLEMENT FOR THE CARBON CREDITS WITHOUT APPRECI ATING THAT GENERATION OF CARBON CREDITS IS INTRICATELY LINKED TO THE MACHINE RY AND PROCESSES EMPLOYED IN THE PRODUCTION PROCESS BY THE ASSESSEE? 9. THE HONBLE HIGH COURT HELD AS UNDER:- WE HAVE CONSIDERED THE AFORESAID SUBMISSION AND WE A RE UNABLE TO ACCEPT THE SAME AS THE LEARNED TRIBUNAL HAS FACTUALLY FOUN D THAT CARBON CREDIT IS NOT AN OFFSHOOT OF BUSINESS BUT AN OFFSHOOT OF ENVI RONMENTAL CONCERNS. NO ASSET IS GENERATED IN THE COURSE OF BUSINESS BUT IT I S GENERATED DUE TO ENVIRONMENTAL CONCERNS. WE AGREE WITH THIS FACTUAL AN ALYSIS AS THE ASSESSEE IS CARRYING ON THE BUSINESS OF POWER GENERATION. THE CA RBON CREDIT IS NOT EVEN DIRECTLY LINKED WITH POWER GENERATION. ON THE SALE OF EXCESS CARBON CREDITS THE INCOME WAS RECEIVED AND HENCE AS CORRECTLY HELD BY THE TRIBUNAL IT IS CAPITAL RECEIPT AND IT CANNOT BE BUSINESS RECEIPT OR I NCOME. IN THE CIRCUMSTANCES WE DO NOT FIND ANY ELEMENT OF LAW IN THIS APPEAL. 10. AS PER THE HONBLE HIGH COURT THE INCOME ON SA LE OF EXCESS CARBON CREDITS WAS A CAPITAL RECEIPT AND NOT A BUSINESS RE CEIPT/INCOME. NOTABLY EVEN 7 M/S JSW ENERGY LIMITED PAGE 7 OF 20 IN THE CASE OF ASSESSEE BEFORE THE HONBLE ANDHRA P RADESH HIGH COURT ASSESSEE HAD EARNED INCOME ON SALE OF CARBON CREDIT S IN THE COURSE OF CARRYING ON THE BUSINESS OF POWER GENERATION WHICH IS ALSO THE FACT-POSITION BEFORE US. THE HONBLE HIGH COURT HAS HELD THAT THE INCOME REC EIVED ON SALE OF EXCESS CARBON CREDITS WAS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX. QUITE CLEARLY THE SAID JUDGMENT SUPPORTS THE PLEA OF ASSESSEE IN THE INSTANT CASE THAT THE RECEIPTS ON SALE OF CERS IS A CAPITAL RECEIPT NOT C HARGEABLE TO TAX. FOLLOWING THE SAID JUDGMENT WE UPHOLD THE PLEA OF THE ASSESSEE. 11. IN SO FAR AS THE RELIANCE PLACED BY THE LD. DR ON THE DECISION OF COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF APOLLO TYRES L TD (SUPRA) IS CONCERNED OSTENSIBLY THE SAME DOES NOT HELP THE CASE OF REVE NUE IN VIEW OF THE SUBSEQUENT JUDGMENT OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF MY HOME POWER LTD. (SUPRA). IN FACT THE COCHIN BENCH OF THE TRIBUNAL HAS ANALYSED THE SITUATION AND OBSERVED THAT THE EARNIN G OF CARBON CREDITS WAS IN THE COURSE OF CARRYING ON THE BUSINESS AND THEREFO RE SUCH INCOME WAS HELD TO BE IN THE NATURE OF REVENUE RECEIPT. THE HONBLE HIGH COURT HOWEVER APPROVED THE CONTRARY PROPOSITION TO THE EFFECT TH AT THE SALE OF CARBON CREDITS IS NOT AN OFFSHOOT OF BUSINESS BUT IT IS AN OFFSHOO T OF ENVIRONMENTAL CONCERNS; AND THEREFORE IT UPHELD THE DECISION OF HYDERABAD BENCH OF THE TRIBUNAL HOLDING SUCH INCOME AS A CAPITAL RECEIPT NOT CHARGE ABLE TO TAX. WE ARE POINTING OUT THE AFORESAID FOR THE REASON THAT THE LOGIC ADVERTED TO BY THE COCHIN BENCH OF THE TRIBUNAL HAS BEEN SPECIFICALLY REFERRED TO BY THE HONBLE ANDHRA PRADESH HIGH COURT BUT THE SAME DID NOT FIN D ITS FAVOUR. THEREFORE WE CONCLUDE BY HOLDING THAT THE INCOME RECEIVED ON SAL E OF EXCESS CARBON CREDITS 8 M/S JSW ENERGY LIMITED PAGE 8 OF 20 IS LIABLE TO BE ASSESSED AS A CAPITAL RECEIPT NOT C HARGEABLE TO TAX. WE ORDER ACCORDINGLY. THUS ASSESSEE SUCCEEDS ON THIS ASPECT AND THE GROUNDS OF APPEAL NOS. 2 AND 3 STAND ALLOWED. 12. THE GROUND OF APPEAL NO. 1 RELATING TO CLAIM OF EXEMPTION U/S. 80IA OF THE ACT ON THE INCOME FROM SALE OF CARBON CREDITS I S RENDERED ACADEMIC IN VIEW OF OUR DECISION ON GROUND OF APPEAL NO. 2. THU S GROUND OF APPEAL NO. 1 IS DISMISSED AS INFRUCTUOUS. 13. THE NEXT ISSUE IN THE APPEAL OF THE ASSESSEE RE LATES TO THE DISALLOWANCE OF RS.29 66 81 836/- MADE BY THE ASSESSING OFFICER U/S 14A OF THE ACT. IN THIS CONTEXT IT IS TO BE NOTED THAT IN THE CROSS- APP EAL ( BY WAY OF GROUND OF APPEAL NO. 1) REVENUE HAS CHALLENGED THE ACTION O F THE CIT(A) IN DELETING AN AMOUNT OF RS. 15 32 12 850/- WHICH REPRESENTED A PA RT OF THE TOTAL DISALLOWANCE OF RS. 29 66 81 836/- MADE BY THE ASSE SSING OFFICER. SINCE THE TWO CROSS-GROUNDS RELATE TO THE SAME ISSUE THEY AR E BEING TAKEN-UP TOGETHER. 14. IN BRIEF THE RELEVANT FACTS ARE THAT IN THE CO URSE OF ASSESSMENT PROCEEDINGS ASSESSEE WAS ASKED TO EXPLAIN THE AMOU NT OF EXPENDITURE DISALLOWABLE U/S 14A OF THE ACT ON ACCOUNT OF INVES TMENTS MADE. THE FIRST PLEA OF THE ASSESSEE WAS THAT THE INVESTMENTS WERE MADE ONLY IN ITS SUBSIDIARY AND AS SUCH THEY SHOULD BE TREATED AS STRATEGIC INVESTM ENTS MADE FOR BUSINESS PURPOSES AND THEREFORE NO DISALLOWANCE U/S 14A WA S CALLED FOR. SECONDLY IT WAS CANVASSED THAT STRATEGIC INVESTMENTS ARE IN THE NATURE OF BUSINESS ASSETS 9 M/S JSW ENERGY LIMITED PAGE 9 OF 20 AND INTEREST ON BORROWINGS USED FOR SUCH INVESTMENT S IS DEDUCTIBLE U/S 36 (1)(III) OF THE ACT AND ACCORDINGLY NO DISALLOWANCE IS MERITED U/S 14A OF THE ACT IN RESPECT OF SUCH INTEREST EXPENDITURE. THIRDLY A SSESSEE ASSERTED THAT THERE WAS NO DIRECT INTEREST EXPENDITURE ATTRIBUTABLE TO INVESTMENTS IN SHARES. FOURTHLY ASSESSEE POINTED OUT THAT ADMINISTRATIVE EXPENSES IN RESPECT OF STRATEGIC INVESTMENTS ARE DEDUCTIBLE AS BUSINESS EX PENDITURE AND NO DISALLOWANCE IS CALLED FOR U/S 14A OF THE ACT. WIT HOUT PREJUDICE IT WAS CONTENDED THAT NO ADMINISTRATIVE EXPENDITURE WAS INCURRED FOR THE PURPOSE OF SUCH INVESTMENT AND THAT EVEN IF IT WAS INCURR ED THE SAME WAS SO INSIGNIFICANT THAT IT WOULD BE DIFFICULT TO COMPUT E THE SAME. NEVERTHELESS WITH RESPECT TO THE DIRECT INTEREST EXPENDITURE ATTRIBUT ABLE TO INVESTMENT IN SHARES ASSESSEE QUANTIFIED THE SAME AT RS. 9 05 53 986/-. THE ASSESSING OFFICER DISAGREED WITH THE ASSESSEE AND WORKED OUT THE DISA LLOWANCE U/S 14A OF THE ACT BY APPLYING THE COMPUTATION FORMULA CONTAINED I N RULE 8D OF INCOME TAX RULES 1962 (IN SHORT THE RULES) WHICH WAS AS UN DER:- (A) AMOUNT OF DIRECT INTEREST EXPENDITURE UNDER RULE 8D(2)(I) OF THE RULES RS. 9 05 53 986/- (B) AMOUNT OF INDIRECT INTEREST EXPENDITURE UNDER RULE 8D(2)(II) OF THE RULES - RS. 15 32 12 850/- (C) OUT OF THE ADMINISTRATIVE EXPENDITURE UNDER RULE 8D(2)(III) OF THE RULES -RS. 5 29 15 000/- TOTAL RS. 29 66 81 83 6/- 15. IN APPEAL BEFORE THE CIT(A) ASSESSEE CHALLENGE D THE AFORESAID DISALLOWANCE. THE CIT(A) HAS SUSTAINED THE DISALLOW ANCE OF RS. 9 05 53 986/- RELATING TO THE DIRECT INTEREST EXPENDITURE INCURRE D FOR EARNING THE EXEMPT INCOME IN TERMS OF RULE 8D(2)(I) OF THE RULES. SO HOWEVER THE CIT(A) ACCEPTED 10 M/S JSW ENERGY LIMITED PAGE 10 OF 20 THE PLEA OF THE ASSESSEE THAT THERE WAS NO INDIRECT INTEREST EXPENDITURE RELATING TO THE EARNING OF EXEMPT INCOME AND ACCORD INGLY DELETED THE DISALLOWANCE OF RS. 15 32 12 850/- MADE BY THE ASSE SSING OFFICER UNDER RULE 8D(2)(II) OF THE RULES. THIS ACTION OF THE CIT(A) H AS BEEN CHALLENGED BY THE REVENUE IN ITS APPEAL BY WAY OF GROUND OF APPEAL N O. 1. THE THIRD LIMB OF THE DISALLOWANCE RELATING TO ADMINISTRATIVE EXPENDITURE UNDER RULE 8D(2)(III) OF THE RULES OF RS. 5 29 15 000/- WAS ALSO SUSTAINED BY T HE CIT(A). 16. BEFORE US THE LD. REPRESENTATIVE FOR THE ASSES SEE HAS NOT SERIOUSLY DISPUTED THE DISALLOWANCE OF RS. 9 05 83 986/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIRECT INTEREST EXPENDITURE RELATED T O EARNING OF EXEMPT INCOME. OSTENSIBLY THE SAID WORKING WAS PROVIDED B Y THE ASSESSEE ITSELF IN THE COURSE OF HEARING BEFORE THE ASSESSING OFFICER. NEV ERTHELESS IT IS TO BE NOTED THAT THE ENTIRE ISSUE OF THE DISALLOWANCE MADE BY I NVOKING SECTION 14A OF THE ACT IS QUITE REDUNDANT BECAUSE THE CIT(A) AGREED TO AN OMNIBUS ALTERNATE PLEA OF THE ASSESSEE TO THE EFFECT THAT THE AMOUNT DISAL LOWED U/S 14A OF THE ACT RESULTED IN INCREASED PROFITS WHICH QUALIFIED FO R THE BENEFITS OF SECTION 80IA OF THE ACT. THE AFORESAID DECISION OF THE CIT(A) IS CHALLENGED BY THE REVENUE BY WAY OF GROUND OF APPEAL NO.2. 17. PERTINENTLY WITH RESPECT TO THE DISALLOWANCE U/S 14A OF THE ACT MADE BY APPLICATION OF CLAUSES (I) AND (II) OF RULE 8D O F THE RULES AMOUNTING TO RS. 24 37 66 836/- THE ASSESSING OFFICER HIMSELF ALL OWED DEDUCTION U/S 80IA OF THE ACT ON THE INCOME SO ENHANCED. SO HOWEVER IN RESPECT OF THE PROFITS ENHANCED AS A RESULT OF A DISALLOWANCE UNDER THE TH IRD LIMB OF RULE 8D(2)(III) OF 11 M/S JSW ENERGY LIMITED PAGE 11 OF 20 THE RULES I.E. RS. 5 29 15 000/- ON ACCOUNT OF ADM INISTRATIVE EXPENSES THE ASSESSING OFFICER BIFURCATED THE DISALLOWANCE BETWE EN 80IA UNIT AND NON 80IA UNIT ON THE BASIS OF TURNOVER AND ACCORDINGLY EXEMP TION U/S 80IA OF THE ACT WAS DENIED ON THE AMOUNT OF RS. 3 11 29 566/-. I N APPEAL THE CIT(A) HAS NOTED THAT THE EXPENSES DEBITED TO NON-80-IA UNITS WERE DIRECT EXPENSES PERTAINING TO THOSE UNITS AND INSOFAR AS THE INDIRE CT EXPENDITURE WAS CONCERNED THE SAME WAS DEBITED TO 80IA UNITS WHI CH ARE ENGAGED IN THE BUSINESS OF GENERATION OF POWER. THUS AS PER THE CIT(A) THE DISALLOWANCE OF ADMINISTRATIVE EXPENSES U/S.14A R.W.R. 8D(2)(III) O F THE RULES AMOUNTING TO RS. 5 29 15 000/- WOULD ONLY RESULT IN INCREASED PRO FITS OF THE BUSINESS OF GENERATION OF POWER WHICH SHALL BE ELIGIBLE FOR E XEMPTION U/S 80IA OF THE ACT. ACCORDINGLY THE CIT(A) DISAGREED WITH THE ASSESSIN G OFFICER WHO HAD ALLOWED THE EXEMPTION U/S 80IA OF THE ACT ON A PRO-RATA BAS IS WITH RESPECT TO THE INCOME ENHANCED BY DISALLOWANCE OF ADMINISTRATIVE E XPENSES U/S 14A R.W.R 8D(2)(III) OF THE RULES. THIS ASPECT OF THE CONTROV ERSY HAS BEEN AGITATED BY THE REVENUE BEFORE US BY WAY OF GROUND OF APPEAL NO. 2. 18. HAVING CONSIDERED THE FINDINGS OF CIT(A) ON THI S ASPECT WE FIND NO REASON TO INTERFERE WITH THE SAME INASMUCH AS THE S AME ARE UNEXCEPTIONAL. THE CIT (A) HAS FACTUALLY CONCLUDED THAT THE DISALL OWANCE OF ADMINISTRATIVE EXPENSES AMOUNTING TO RS. 5 29 15 000/- U/S 14A R.W .R 8D(2)(III) OF THE RULES LEADS TO ENHANCED PROFITS OF THE ELIGIBLE BUSINESS OF THE GENERATION OF POWER AND THEREFORE SUCH ENHANCED PROFITS HAVE BEEN RIG HTLY HELD TO BE ELIGIBLE FOR BENEFITS OF SECTION 80IA OF THE ACT. NO MATERIAL HA S BEEN LEAD BY THE REVENUE 12 M/S JSW ENERGY LIMITED PAGE 12 OF 20 BEFORE US WHICH WOULD ENABLE US TO DISTRACT FROM TH E ABOVE FINDING OF THE CIT(A) WHICH IS HEREBY AFFIRMED AND REVENUE FAIL S IN GROUND OF APPEAL NO. 2. 19. THE RESULT OF THE AFORESAID IS THAT WHATEVER I NCOME WAS ENHANCED ON ACCOUNT OF DISALLOWANCE COMPUTED U/S 14A OF THE AC T IT HAS BEEN OFFSET BY THE EXEMPTION AVAILABLE ON SUCH ENHANCED PROFIT IN TERMS OF SECTION 80IA OF THE ACT. THUS ON FACTS IT IS QUITE CLEAR THAT THE DISALLOWANCE U/S 14A OF THE ACT DOES NOT IMPACT THE NET TAXABLE PROFITS AS ASSESSEE BECOMES ELIGIBLE TO HIGHER EXEMPTION U/S 80IA OF THE ACT. THEREFORE THE DISP UTE PERTAINING TO THE EFFICACY OF THE DISALLOWANCE U/S 14A OF THE ACT R .W. RULE 8D(2) OF THE RULES WHICH IS MANIFESTED IN GROUND OF APPEAL NO. 4 OF TH E ASSESSEE AND IN GROUND OF APPEAL NO. 1 OF THE REVENUE IS ACADEMIC IN NATURE. THUS WE REFRAIN FROM ADJUDICATING THE SAME AT THE PRESENT. 20. THE ONLY OTHER ASPECT WHICH REMAINS FOR ADJUDIC ATION IS THE FOLLOWING TWO ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSE SSEE WHICH WERE HITHERTO NOT RAISED BEFORE THE LOWER AUTHORITIES:- 1 IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED ASSESSING OFFICER OUGHT TO HAVE REDUCED THE SUM OF RS . 3 186 262 683/- ON ACCOUNT OF SALE OF CER BEING A CAPITAL RECEIPT WHIL E COMPUTING THE BOOK PROFITS U/S 115JB OF THE INCOME TAX ACT 1961. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED. ASSESSING OFFICER OUGHT TO HAVE ALLOWED AS A REDUCTIO N THE SUM OF RS. 3 258 313 098/- ARISING ON ACCOUNT OF THE DEMERGER OF THE INVESTMENT DIVISION OF THE APPELLANT IN COMPUTING THE BOOK PROFITS U/S. 115JB OF THE INCOME TAX ACT 1961. 13 M/S JSW ENERGY LIMITED PAGE 13 OF 20 21. AT THE TIME OF HEARING THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE AFORESAID GROUNDS WERE NOT RAISE D EARLIER BEFORE THE LOWER AUTHORITIES BUT THE SAME ARE PURELY LEGAL IN NATURE AND SINCE ALL THE RELEVANT FACTS ARE ALREADY ON RECORD THE SAME BE ADMITTED F OR ADJUDICATION FOLLOWING THE RATIO OF THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. NATIONAL THERMAL POWER CORPORATION 229 ITR 383 (SC) . 22. ON THE OTHER HAND THE LD. DR APPEARING FOR THE REVENUE HAS NOT SERIOUSLY OPPOSED THE PLEA OF ASSESSEE FOR ADMISSIO N OF AFORESAID ADDITIONAL GROUNDS BUT POINTED OUT THAT THE ASSESSEE HAS NOT E XPLAINED THE CIRCUMSTANCES IN WHICH THE SAID GROUNDS WERE HITHER TO NOT RAISED BEFORE THE LOWER AUTHORITIES. 23. BOTH THE ADDITIONAL GROUNDS OF APPEAL RAISED B Y THE ASSESSEE RELATE TO THE MANNER OF COMPUTATION OF BOOK PROFIT FOR THE PURPOSES OF SECTION 115JB OF THE ACT. IN ADDITIONAL GROUND NO. 1 THE PLEA O F ASSESSEE IS THAT THE CERS OR CARBON CREDITS ARE IN THE NATURE OF A CAPITAL RECEI PT AND THEREFORE THE SAME IS LIABLE TO BE REDUCED WHILE COMPUTING THE BOOK PROF IT FOR THE PURPOSES OF SECTION 115JB OF THE ACT. THE POINT MADE OUT BY THE APPELLANT IS THAT IF THE RECEIPTS ON ACCOUNT OF SALE OF CARBON CREDITS ARE HELD TO BE CAPITAL RECEIPTS NOT CHARGEABLE TO TAX IT WOULD AUTOMATICALLY HAVE THE EFFECT OF ALTERING THE BOOK PROFIT COMPUTABLE FOR THE PURPOSE OF SECTION 115JB OF THE ACT. SINCE IN THE EARLIER PART OF THIS ORDER WE HAVE ALREADY UPH ELD THE PLEA OF THE ASSESSEE THAT CARBON CREDIT RECEIPTS ARE IN THE NATURE OF A CAPITAL RECEIPT NOT CHARGEABLE TO TAX FOLLOWING THE JUDGMENT OF HONBLE ANDHRA PRA DESH HIGH COURT IN THE 14 M/S JSW ENERGY LIMITED PAGE 14 OF 20 CASE OF MY HOME POWER LTD. (SUPRA) THEREFORE THE PLEA OF THE ASSESSEE BY WAY OF ADDITIONAL GROUNDS OF APPEAL NO. 1 SPRINGS U P. INSOFAR AS THE ADMISSION OF SUCH AN ADDITIONAL GROUND IS CONCERNED WE FIND THAT IT INVOLVES A POINT OF LAW AND THE SAME IS ALSO RELEVANT IN DETERMINING AP PROPRIATE TAX LIABILITY OF THE ASSESSEE AND THEREFORE FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION (SUP RA) THE SAME IS LIABLE TO BE ADMITTED. NEVERTHELESS THE SAID GROUND OF APPEA L WAS NOT HITHERTO RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES THERE FORE THE SAME IS OUGHT TO BE EXAMINED APPROPRIATELY BY THE INCOME TAX AUTHORI TIES. THUS THE ADDITIONAL GROUND OF APPEAL NO. 1 IS ADMITTED AND THE SAME IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION ON MERITS AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 24. THE ADDITIONAL GROUND OF APPEAL NO. 2 ALSO INV OLVES DETERMINATION OF BOOK PROFITS FOR THE PURPOSE OF SECTION 115JB OF THE ACT. IT IS CANVASSED THAT ASSESSEE IS ENTITLED TO A DEDUCTION OF RS. 3 25 83 13098/- ON ACCOUNT OF LOSS ARISING ON DEMERGER OF ITS INVESTMENT DIVISION WHIL E COMPUTING THE BOOKS PROFITS U/S 115JB OF THE ACT. IN THIS CONTEXT BRIE F FACTS ARE THAT THE ASSESSEE COMPANY WAS HOLDING SHARES OF ITS GROUP COMPANIES IN ITS INVESTMENT DIVISION. THE INVESTMENT DIVISION WAS HIVED OFF TO ITS SUBSID IARY JSW ENERGY INVESTMENT PVT. LTD (JSWEIPL) DURING THE ASSESSMENT YEAR UNDER CONSIDERATION IN TERMS OF A SCHEME OF ARRANGEMENT APPROVED BY THE HONBLE BOM BAY HIGH COURT VIDE ORDER DATED 1.11.2007. IN TERMS OF THE SCHEME OF AR RANGEMENT THE ASSETS AND LIABILITIES OF THE INVESTMENT DIVISION WERE TRANSFE RRED JSWEIPL AT THEIR BOOK VALUES. AS A CONSEQUENCE A SUM OF RS. 3 25 83 13 0 98/- BEING THE EXCESS OF 15 M/S JSW ENERGY LIMITED PAGE 15 OF 20 BOOK VALUE OF ASSETS OVER THE LIABILITIES TRANSFERR ED WAS A LOSS SUFFERED ON DEMERGER OF THE INVESTMENT DIVISION. NOTABLY IN LI EU OF SUCH TRANSFER OF INVESTMENT DIVISION SHARES OF JSWEIPL WERE ISSUED TO SHAREHOLDERS OF ASSESSEE COMPANY IN THE RATIO SPECIFIED IN THE SCHEME OF ARR ANGEMENT. THE LOSS OF RS. 3 25 83 13 098/- WAS ADJUSTED AGAINST THE BALANC E/ SURPLUS OF THE PROFIT & LOSS ACCOUNT APPEARING IN THE BALANCE-SHEET BUT W AS NOT ROUTED THROUGH THE PROFIT & LOSS ACCOUNT. 25. THE CLAIM OF THE APPELLANT IS THAT THE ABOVE LO SS OF RS. 3 25 83 13 098/- SUFFERED ON DEMERGER OF THE INVESTMENT DIVISION DUR ING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATIO N WAS NOT ROUTED THROUGH PROFIT & LOSS ACCOUNT BUT IT WAS AN AMOUNT DEDUCTIB LE WHILE COMPUTING BOOKS PROFITS U/S 115JB OF THE ACT. IT IS POINTED OUT TH AT UNDER THE ACT TRANSFER OF ASSETS/LIABILITIES IN THE CASE OF MERGER OR DEMERGE R IS A TRANSACTION OF TRANSFER AND LIABLE TO CAPITAL GAINS TAX UNDER SECTION 45 OF THE ACT. SO HOWEVER SINCE SECTION 47(VIB) OF THE ACT EXEMPTS TRANSFER IN THE SCHEME OF DEMERGER FROM THE DEFINITION OF TRANSFER THE SAME IS NOT LIABL E TO CAPITAL GAINS TAX. THE PLEA SET UP BY THE ASSESSEE IS THAT THE ACT RECOGNIZES T RANSFER OF SHARES IN THE SCHEME OF MERGER AS A TRANSFER BUT PROVIDES EXEM PTION U/S 47(VIB) OF THE ACT. 26. BEFORE US THE LD. REPRESENTATIVE HAS PLACED RE LIANCE ON THE RATIO OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. VEEKAYLAL INVESTMENT CO. P. LTD. 249 ITR 597 (BOM.) TO JUSTIFY AFORESAID THE CLAIM. THE HONBLE BOMBAY HIGH COURT NOTICED THAT FOR COMPUTIN G THE TOTAL INCOME UNDER 16 M/S JSW ENERGY LIMITED PAGE 16 OF 20 NORMAL PROVISIONS THE CAPITAL GAINS COMPUTED U/S 4 5 OF THE ACT HAS TO BE TAKEN INTO ACCOUNT AND THEREFORE IT WAS HELD THAT CAPITAL GAINS COULD NOT BE EXCLUDED WHILE COMPUTING THE BOOK PROFITS U/S 115J OF THE ACT. IT WAS NOTED BY THE HONBLE HIGH COURT THAT UNDER CLAUSE (2) OF PAR T II OF SCHEDULE VI OF THE COMPANIES ACT 1956 WHERE A COMPANY RECEIVES THE A MOUNT ON ACCOUNT OF SALE OF LEASE HOLD RIGHTS THE COMPANY IS BOUND T O DISCLOSE IN THE PROFIT & LOSS ACCOUNT THE SAID AMOUNT AS A NON-RECURRING TRANSAC TION OR A TRANSACTION OF AN EXCEPTIONAL NATURE IRRESPECTIVE OF ITS NATURE BEING CAPITAL OR REVENUE AND THAT IT WOULD BE INAPPROPRIATE TO DIRECTLY TRANSFER SUCH AMOUNT TO THE CAPITAL RESERVE IN THE BALANCE SHEET. ON THE BASIS OF THE R ATIO OF THE JUDGMENT OF HONBLE BOMBAY HIGH COURT THE LD. REPRESENTATIVE P OINTED OUT THAT THE LOSS OF RS. 325.83 CRORES INCURRED ON DEMERGER OF THE IN VESTMENT DIVISION WAS REQUIRED TO BE CONSIDERED WHILE COMPUTING THE BOOK PROFITS FOR THE PURPOSE OF SECTION 115JB OF THE ACT THOUGH ASSESSEE DID NO T ROUTE THE ENTRY THROUGH THE PROFIT & LOSS ACCOUNT. 27. WE DO NOT DEAL ANY FURTHER ON THE MERITS OF THE CLAIM BECAUSE WHAT HAS TO BE DECIDED AT THE THRESHOLD IS AS TO WHETHER S UCH A FRESH CLAIM CAN BE ADMITTED WHICH WAS NOT HITHERTO RAISED BEFORE THE L OWER AUTHORITIES. IN THIS CONTEXT THE LD. REPRESENTATIVE FOR THE ASSESSEE SU BMITTED THAT EVEN IF THE CLAIM WAS NOT MADE IN THE RETURN OF INCOME IT COUL D BE MADE BEFORE THE APPELLATE AUTHORITIES AND HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS AND SHARE HOLDERS PVT. LTD. [2012] 349 ITR 336(BOM). AS PER THE HONBLE BOMBAY HIGH COURT THE APPELLATE AUTHORITIES HAVE JURISDICTION TO DEAL NOT MERELY WITH ADDITIONAL 17 M/S JSW ENERGY LIMITED PAGE 17 OF 20 GROUNDS WHICH BECOME AVAILABLE ON ACCOUNT OF CHANG E OF CIRCUMSTANCES OR LAW BUT ALSO WITH ADDITIONAL GROUNDS WHICH WERE AV AILABLE WHEN THE RETURN OF INCOME WAS FILED THOUGH ASSESSEE DID NOT CLAIM IT IN THE RETURN OF INCOME. AS PER THE HONBLE HIGH COURT THE APPELLATE AUTHORITI ES HAVE THE DISCRETION TO PERMIT RAISING OF SUCH ADDITIONAL CLAIMS AND THAT E ACH CASE MUST BE CONSIDERED ON ITS OWN FACTS. IN THE BACKGROUND OF THE AFORESA ID LEGAL POSITION THE CLAIM OF THE ASSESSEE FOR ADMISSION OF THE ADDITIONAL GROUND OF APPEAL NO. 2 RELATING TO ADJUSTMENT OF LOSS ARISING ON DEMERGER FOR COMPUTIN G BOOK PROFITS U/S 115JB OF THE ACT IS LIABLE TO ADMITTED THOUGH SUCH A CLAIM WAS AVAILABLE WHEN THE RETURN OF INCOME WAS FILED; AND THE NON-CLAIMING OF SUCH AN ADJUSTMENT IN THE RETURN OF INCOME CANNOT BE A GROUND TO DENY ITS ADMISSION AT THIS STAGE. THERE IS NO MATERIAL LEAD BY THE REVENUE WHICH WOUL D SUGGEST THAT THE OMISSION TO MAKE SUCH A CLAIM IN THE RETURN OF INCO ME WAS EITHER DELIBERATE OR MALAFIDE. AT THIS POINT IT IS ALSO APPROPRIATE TO NOTE THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE NATIONAL THERMAL POWER CO RPORATION (SUPRA) WHEREIN THE POWER OF THE TRIBUNAL IS EXPRESSED IN THE WIDEST POSSIBLE TERMS AND IT IS NOTICED THAT THE PURPOSE OF ASSESSMENT PR OCEEDINGS BEFORE THE TAXING AUTHORITIES IS TO ASSESS THE CORRECT TAX LIABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. THE AFORESAID ADDITIONAL GROUND RAISED B Y THE ASSESSEE DOES INVOLVE A POINT OF LAW AND THE FACTS RELEVANT FOR DETERMINA TION OF THE CONTROVERSY ARE AVAILABLE ON RECORD AND IT DOES NOT REQUIRE ANY INVESTIGATION OF NEW FACTS. CONSIDERED IN THE LIGHT OF AFORESAID LEGAL POSITION IN OUR VIEW THE ASSESSEE CANNOT BE PREVENTED FROM RAISING THE ADDITIONAL GRO UND OF APPEAL NO. 2 RELATING TO RELATING TO ASSESSMENT OF ITS CORRECT T AX LIABILITY IN THE COURSE OF APPLICATION OF SECTION 115JB OF THE ACT. IT IS ALS O QUITE CLEAR THAT THE FACTUAL 18 M/S JSW ENERGY LIMITED PAGE 18 OF 20 CONTOURS OF THE CLAIM WOULD NOT REQUIRE ANY FRESH I NVESTIGATION OF FACTS BUT MERELY AN APPRAISAL OF THOSE FACTS WHICH ARE ALREA DY AVAILABLE ON RECORD. 28. AT THE TIME OF HEARING THOUGH THE LD. DR OPPOS ED THE PRAYER OF ASSESSEE FOR ADMISSION OF THE AFORESAID ADDITIONAL GROUND OF APPEAL BUT FACTUALLY IT COULD NOT BE DISPUTED THAT THE GROUND SOUGHT TO BE RAISED INVOLVES A PURE POINT OF LAW FOR WHICH THE RELEVANT AND CORR ESPONDING FACTS REQUIRED FOR ADJUDICATION ARE ON RECORD. THEREFORE CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES AND THE POSITION OF LAW EXPLAINED BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION ( SUPRA) AND BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHARE HOLDERS PVT. LTD. (SUPRA) WE DEEM IT FIT AND PROPER TO ADMIT THE AFO RESAID ADDITIONAL GROUND OF APPEAL NO. 2 ALSO. INSOFAR AS THE MERIT OF SAID GR OUND IS CONCERNED IT WOULD BE IN THE FITNESS OF THINGS THAT THE SAME IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATION SINCE THE SAME WAS NOT BE FORE THE LOWER AUTHORITIES. NEEDLESS TO SAY THE ASSESSING OFFICER SHALL ALLOW T HE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN SUPPORT OF THE AFORES AID ADDITIONAL GROUND OF APPEAL AND THEREAFTER PASS AN ORDER AFRESH AS PER L AW. 28 . IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY A LLOWED WHEREAS THAT BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31ST DA Y OF JULY 2015. SD/- SD/- ( SANJAY GARG) (G.S. PANNU) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER ) 19 M/S JSW ENERGY LIMITED PAGE 19 OF 20 MUMBAI DATED 3107-2015 SKS SR. P.S COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR H BENCH ITAT MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI