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Income Tax Appellate Tribunal, “ C” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED & Ms. MADHUMITA ROY
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
1. The captioned cross-appeals have been filed by the Assessee and the Revenue against the common order of the Commissioner of Income Tax (Appeals)–1, Vadodara [CIT(A) in short] vide appeal no.CIT(A)- 1/81/2014-15 dated 10/09/2015 arising in the assessment order passed under s.143(3) of the Income Tax Act, 1961(hereinafter referred to as "the Act") dated 26/12/2008 relevant to Assessment Year (AY) 2006- 07.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 2 - First, we take up the Revenue’s appeal in for AY 2006-07, wherein the Revenue has raised the following grounds of appeal:-
1. “on the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in not considering the decision of the Appellate Tribunal, Chennai rendered in the case of Chettinad Cement Corporation Ltd. in for A.Y.2001-02, according to which the deduction u/s.80IB(4)(iv) is not allowable to the assessee for generating power for captive consumption.
2. The appellant craves leave to add to, amend or alter the above grounds as may be deemed necessary. Relief claimed in appeal It is prayed that the order of the CIT (Appeals) be set aside and that of the Assessing Officer be restored.
2. The only issue raised by the Revenue is that the learned CIT (A) erred in allowing the deduction under section 8- IA of the Act which was disallowed by the AO.
The assessee is a Government company and engaged in business of manufacturing and selling of fertilizer and chemicals in State of Gujarat. The assessee is also having an independent plant generating electricity for in house captive consumption. The assessee in respect of such power plant worked the deduction under section 80-IA(4) of the Act after applying the rate charge by GUVNL to the customers.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 3 -
4. However, the Assessing Officer disagreed with the rate used by the assessee to calculate sale value as the market rate as the same is not applicable in case of in-house generation electricity for captive consumption. It is because GEB (MGVCL) rate charging from customer includes the following tariff:
(1) Power purchase cost from electricity generation units such GSECL,NTPC etc. (2) Transmission Charges paid to GETCO as well transmission cost to Power Grid Corporation of India for distribution network. (3) Transmission and distribution loss on an average 23% to 25%. (4) Other fixed cost charges of MGVCL and various different rates and taxes.
4.1 However, in case of captive power plant assessee has not incurred such expenses. Therefore, the rate should be the rate of power generating unit such as GSECL and NTPC to calculate deemed sale. Accordingly AO calculated average rate at which GEB purchases electricity from Power Generating undertaking at 2.11 per unit and worked out the profit of Rs.1643.52lakh only. Accordingly the AO restricted the deduction to the extent of Rs.16.43 crores only.
5. On appeal by the assessee, the learned CIT(A) allowed the deduction to assessee considering the rate adopted for the sale of the electricity by GUVNL to the Customers.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07
Being aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us.
6. Both the ld. DR & AR before us relied on the orders of the authorities below as favourable to them.
We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the impugned issue is covered in favour of the assessee in its own case bearing and 339/AHD/2012 vide order dated 29/11/2017 for the assessment years 2008-09 & 2009-10. The relevant extract of the order is reproduced as under: “21. At the outset Ld. counsel for the assessee submitted that the issue stand squarely covered in favour of assessee by the decision of the Tribunal in assessee’s own case for A.Y. 2006-07 & 2007-08 wherein it has been held that for the purpose of calculating the profit eligible for deduction u/s. 80IA(4) of the Act, the value of sale is to be calculated as per market value of such goods and services as on the date of transfer as provided in section 80IA(8) of the Act. It was further held that in case of captive consumption of power, the market value of the power utilized with captiveable is the rate at which assessee company has purchased power from GEB. Reliance was further placed on following judgment:- (1) CIT v/s. Godavari Power&IspatLtd. 223 taxman 234(Chattisgarh High Court) (2) Shree Cement Ltd. v/s. ACIT (2014) 31 ITR (T) 513 (Jaipur) ITAT (3) Pr. CIT v/s. Gujarat Alkalies& Chemicals Ltd. tax appeal 544 of 2016 dated 03/10/2016 (High Court of Gujarat) (4) ACIT vs. Jindal Steel and Power Ltd. (2007) 16 (SOT) 509 (Delhi ITAT) (5) Sri Velayudhaswamy Spinning Mills (P) Ltd. v. DCIT (2012) 2012 ITR(T) 353 (ChennaiITAT) 22. On the other hand Ld. D.R. vehemently argued supporting the order of lower authorities.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07
We have heard the rival contentions and perused the record placed before us and gone through the judgments and decisions relied on by the assesse carefully. Short issue for adjudication is that whether the assessee has rightly computed the deduction u/s.80IA(4) of the Act for the income earned from power generation plant by taking the rate of electricity charged by Gujarat Electricity Board (GEB) to its customers. As per the contention of the assessee for the purpose of calculating deduction u/s. 80IA(4) r.w.s. 80IA(8) of the Act the “market value” for transfer of electricity from eligible unit to non-eligible unit, is the price that such goods and services would ordinarily fetch in the open market and therefore the rate charged by GEB to its customers is the fare market value. However both the lower authorities have not accepted the contention of the appellant and replaced the rate adopted by the assessee with the rate at which the electricity is purchased by the GEB from power generating unit.
We find that the word “open market” is not defined under the Act and in normal parlance it means , the price determined between the two unrelated parties in uncontrolled condition. Similarly the international valuation standard defines ‘market value’ as the estimated amount for which a property should exchange on the date of valuation between a willing buyer and a willing seller in an arms and length transaction after proper marketing wherein the parties had each acted knowledgeable, prudential and without completion. 25. We further observe that Hon’ble Jurisdictional High Court in the case of Gujarat Alkalies& Chemicals Ltd. (supra) dealing with the very same issue of deduction u/s. 80IA(4) of the Act as well as the meaning of ‘market value’ as provided in section 80IA(4) of the Act held that the ‘market value’ for the purpose of calculating deduction u/s. 80IA(4)is the rate of unit charge by the Gujarat Electricity Board to its customers by observing as follows:- 1. The appeal is filed by the Revenue containing several questions. However, while admitting the Tax Appeal on 12.7.2016, only following questions were entertained. "(i) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in upholding the decision of CIT(A) that deduction u/s 80IA(4) is allowable to the assessee for generation of power for captive consumption? (ii) Whether the Tribunal was right in law in allowing the assessees claim of deduction of Rs. 1954 Crores u/s 80IA(4)of the I.T. Act, 1961, when the assessee had adopted rate of power generation at Rs.4.73 per unit, rate on which the GEB supplied power to its consumers, ignoring the rate of Rs.2.36 per unit, the rate on which power generating company supplied its power to GEB?"
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07
Subsequently, concerning the same assessee for the separate assessment year, Revenue filed Tax Appeal No. 708/2016 raising the same questions. This tax appeal was admitted for consideration of following substantial question of law: "1. Whether, on the facts and circumstance of case, the Tribunal was right in law in allowing the deduction u/s.80IA(4) of the Act without appreciating that the assessee had captive power generation plant and therefore the claim u/s. 80IA(4) of the Act was not allowable as held by the Hon'ble ITAT Bench A Chennai vide In the case of Chettinand Cement Corporation Ltd. in 1TA No. 1026 (Mds)2005? 2. Whether on the facts and circumstance of case, the Tribunal was right in law in allowing the claim u/s. 80IA(4) as claimed by the assessee on the basis of purchase price of power from GEB, without appreciating the fact that assessing officer had rightly calculated the amount eligible for deduction u/s, 80IA after 3. applying the rate at Rs. 2.47 per unit which became 'Nil' as after applying rate at Rs. 2.47 per unit, there is LOSS of Rs. 4243.19 lakh, instead of profit shown by the assessee for the unit?"
In both the tax appeals though slightly differently worded, the questions concerning the same assessee are identical and concern the issue of deduction under section 80IA ofthe Income Tax Act granted to the assessee by the Tribunal on captive power generation plant. The second question is with respect to recognising such claim on the basis of purchase price of power from GEB and substituting the rates of 2.47 per unit adopted by the Assessing Officer. 3. Since both the issues are covered by various judgments of this Court, we do not find it necessary to record facts at any length. Division Bench of this Court by judgement dated 22.11.2011 in Tax Appeal No.2092/2010 in somewhat similar controversy observed as under : "3. With respect to Question [B], the issue pertains to sub-Section (8) of Section 801A of the Income Tax Act, 1961. The assessee had a CPP Unit generating electricity, which was supplying it to a general unit. The electricity generated is being supplied to other consumers also. The CPP unit charged Rs.5.40 ps. per unit from the general unit. The Assessing Officer applying sub-Section (8) of Section 80IA restricted the same to Rs.5.32 ps. per unit and, thereby, restricted the deductions claimed by the assessee under Section 80IA of the Act. This restriction was primarily on the basis that the rate of Rs.5.40 ps. charged by Gujarat Electricity Board (" GEB'* for short) was inclusive of 8 paise per unit of electricity duty. This component of electricity duty the Assessing Officer discarded for the purposes of ascertaining market value of the electricity generated by the CPP Unit and supplied to its general unit.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07
CIT (Appeals) confirmed the view of the Assessing Officer on the same line of reasoning. The Tribunal, however, on further appeal by the assessee, reversed the orders passed by the Revenue authorities referring to and relying upon the decisions of other Tribunals. The Tribunal was of the opinion that the market value of the electricity supplied by the CPP Unit to the general unit would be the same being charged by GEB from the consumers.
5. Counsel for the Revenue contended that the component of 8 paise per unit was the electricity duty which GEB was not authorized to retain but had to pass on to the Government. In essence, GEB was only collecting 8 paise per unit as electricity duty for and on behalf of the Government. He submitted that the market value of the electricity should be reckoned on Rs.5.32 ps. per unit as was done by the Revenue authority. 6. Under sub-Section(8) of Section 80IA of the Act, if it is found that where any goods or services held for the purposes of the eligible business are transferred to any other business carried on by the assessed or where any goods or services held for the purposes of any other business carried on by the assessee are transferred to the eligible business and in either case the consideration for such transfer does not correspond to the market value of such goods as on the date of the transfer, then for the purposes of deduction under Section 80IA in case of the eligible business as if the transfer had been made at the market value of such goods or services. It is in this context that the question of substituting the actual consideration by the market value comes into picture. 7. We may notice that the Tribunal did not accept the contention of the assessee that the electricity is neither goods nor services and that, transfer of electricity, therefore, would not be covered under sub-Section (8) of Section 80IA of the Act. However, in so far as the Tribunal's reasoning to adopt the market value of the goods at Rs.5.40 ps. per unit is concerned, we find no error. Undisputedly, GEB supplied the electricity to its consumers at the same rate. This, therefore, was a market value of the electricity supplied by the CPP Unit to the general unit. The fact that this amount of Rs.5.40 ps. comprises of a component of 8 paise, which was electricity duty, to our mind, would make no difference in so far as the market value is concerned. To a consumer, the price being paid remains 5.40 ps. per unit. The fact that the seller retains only Rs.5.32 ps. out of the said collection and passes on 8 paise per unit to the Government in the form of electricity duty, to our mind, would make no difference. This question is, therefore, not required to be considered." 4. This was followed in case of Commissioner of Income-tax v. Shah Alloys Limited in Tax Appeal No.2093/2010. This was reiterated in Tax Appeal No.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 1646/2010 in case of ACIT Bharuch Circle, Bharuch Through Commissioner v. Pragati Glass Works Pvt Ltd. (order dated 30.1.2012), in which following observations were made : "7. To our mind, Tribunal has committed no error. Assessing Officer and CIT(Appeals) while adopting Rs.4.51 per unit as the value of electricity generated by eligible unit of assessee and supplied through its non eligible unit only worked out cost of such electricity generation. In fact CIT(Appeals) in terms recorded that Rs.4.51 was computed as the reasonable value of the electricity generated by eligible unit of assessee. This amount included Rs.4.17 per unit which was the cost of electricity generation and Rs.0.34 per unit which was duty paid by the assessee to GEB for such power generation. Thus the sum of Rs.4.51 per unit only represented the cost of electricity generation to the assessee. In Section 80IA(8) of the Act what is required to be ascertained is the market value of the goods transferred by the eligible business, when such transfer is by eligible business to another non eligible business of the same assessee and the consideration recorded in the accounts of the eligible business does not correspond to market value of such goods. Term "Market Value" is further explained in explanation to said sub-section to mean in relation to any goods or services, price that such goods or services will ordinarily fetch in the open market. To our mind sum of Rs.4.51 per unit of electricity only represented cost of electricity generation to the assessee and not the market value thereof It is not in dispute that the GEB charged Rs.5 per unit for supplying electricity to other industries including non eligible unit of the assessee itself. Tribunal therefore, while adopting the said base figure and excluding excise duty therefrom to work out Rs.4.90 as the market value of the electricity generated by the assessee, to our mind, committed no error. It can be easily seen that if the assessee were to supply such electricity or was allowed to do so in the open market, surely it would not fetch Rs. ft.,51 per unit but Rs.5 per unit as was being charged by GEB. Since the excise duty component thereof would not be retained by the assessee, Tribunal reduced the said figure by the nature of excise duty and came to the figure of Rs.4.90 to ascertain the market value of electricity generated by the eligible unit and supplied to non eligible business of the assessee. No error was committed by the Tribunal. No question of law therefore, arises. Tax Appeal is dismissed."
Issue once again reached the Division Bench of this Court in case of Commissioner of Income-tax-I v. Alembic Limited in Tax Appeal No.471/2009 and connected appeals. The Division Bench referring to earlier judgments of the Court held as under : "11. We have considered the submissions made by the learned counsel for the parties. We have also considered the case laws cited by the learned counsel for the assessee. Taking into consideration the judements of this court and other High Courts, cited above, we are of the opinion that the (by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 9 - Tribunal has rightly allowed the claim of the assessee. In that view of the matter, we do not find any infirmity in the order of the Tribunal. Therefore, we answer question (C) and (D) in favour of the assessee and against the revenue."
Issues are thus considered on number of occasions by the Court and held against the Revenue. Questions are answered against the Revenue. Both the tax appeals are therefore, dismissed.
We further observe that Co-ordinate Bench dealing with the very same issue in case of assessee for A.Y. 2007-08 in dated 05.07.2013 decided the issue in favour of assessee thereby holding that the assessee has rightly adopted the price of electricity at which electric supply company are supplying power to its customers.
We further find that there is no dispute at the end of Revenue as to the eligibility of assessee fulfilling the condition needed to claim deduction u/s. 80IA(4) of the Act. We therefore respectfully following the judgment of Jurisdictional High Court in the case of Gujarat Alkalies and Chemicals Ltd. (supra) as well as the decision of the Tribunal in the case of assessee for A.Y. 2006-07 & 2007-08 are of the considered view that assessee has rightly computed the deduction u/s. 80IA(4) r.w.t 80IA(8) by calculating the market value of the power generated by the captive power plant by adopting the rates charged by the Gujarat Electricity Board to its customers. We accordingly set aside the findings of lower authorities and allow the respective grounds of appeal of assessee No. 3 for A.Y. 2008-09 & 2009-10 and dismiss the ground No. 1 raised on this issue by the Revenue. Ground raised in the cross objection by the assessee become infructuous.” 7.1 Respectfully, following the finding of the ITAT in its own case as discussed above, we do not find any infirmity in the order of the learned CIT (A). Hence, the ground of revenue’s appeal is dismissed.
Coming to assessee’s appeal bearing 2006-07 8. The issue raised by the assessee is that the learned CIT(A) erred in confirming the order of the AO by not reducing the provision written back in the profit and loss account from the book profit under section 115 JB of the Act.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 10 -
The assessee have made provision on account of take or pay rental charges to GSCPTL in the A.Y. 2002-03, 2003-04, 2004-05 and 2005-06 aggregating to Rs. 28,85,36,999/- only. However in each assessment year the provision made by assessee was disallowed and added to the normal income by the AO being unascertained provision. Further in A.Y. 2004-05 and 2005-06 the provision also added to book profit as calculated u/s 115JB of the Act. All the above additions were confirmed by ITAT in respective Assessment Years in the appeal as discussed above. However in current year assessee reversed all provision and credited to P&L a/c but failed to reduced the same from book profit while filing return of income.
9.1 Accordingly, the assessee during assessment proceedings requested AO to reduce such provision written back from book profit under clause (i) to explanation to section 115JB of the Act. But AO did not adjudicate the same.
The Ld. CIT(A) allowed the reduction in book profit to the extent of provision added to book profit in earlier year i.e. in A.Y. 2004-05 and 2005-06 to the tune of Rs. 15,45,10,515/- only.
Aggrieved by the decision of the CIT (A) the assessee is in appeal before ITAT.
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 11 -
The ld. AR before us submitted that the provision written back should be reduced from the book profit while determining the income under section 115 JB of the Act as the tax was charged under computation of income in respect of the AY 2002-03 and 2003-04. As such the income was not chargeable to tax under MAT in these two years even after making the addition for the impugned provision. Therefore, the effect for the impugned provision has already been given while determining the book profit under section 115JB of the Act.
On the other hand, the ld. DR vehemently supported the order of the authorities below.
We have heard the rival contentions and perused the materials available on record. The provision of section 115JB of the Act has direct bearing on the issue on hand which reads as under: “Special provision for payment of tax by certain companies.85 86 115JB. (1) Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 87[2012], is less than 88[eighteen and one-half per cent] of its book profit, 89[such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income-tax at the rate of 88[eighteen and one-half per cent]]. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XX if any amount referred to in clauses (a) to (i) is debited to the 15[statement of profit and loss] or if any amount referred to in clause (j) is not credited to the 15[statement of profit and loss], and as reduced by,—]]]
16[(i) the amount withdrawn from any reserve or provision (excluding a reserve created
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 12 - before the 1st day of April, 1997 otherwise than by way of a debit to the 15[statement of profit and loss]), if any such amount is credited to the 15[statement of profit and loss]: Provided that where this section is applicable to an assessee in any previous year, the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 shall not be reduced from the book profit unless the book profit of such year has been increased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation or Explanation below the second proviso to section 115JA , as the case may be; or]” 13.1 A plain reading of the above provision reveals that the amount of provision written back shall be reduced from the book profit if the same has suffered the tax under MAT provision in the earlier years. Apparently, it appears that there is no ambiguity that the provisions pertaining to the assessment year 2002-03 and 2003-04 were not suffered to tax under the provisions of section 115 JB of the Act. However, the question arises where the assessee was subject to tax under normal computation of income even after giving the effect of such provision under MAT liability. In such a situation, we are of the view that it shall be deemed as if such provision has suffered to tax under MAT provision and the assessee shall get benefit in the year in which it is written back in the profit and loss account while determining the income under MAT provision of the Act. In holding so, we find support and guidance from the order of this Tribunal in the case DCIT Vs. Gujarat Industrial Investment Corporation Ltd. in dated 18-9- 2018 wherein it was held as under: “22.2 The plain reading of the above provision making it clear that the assessee is eligible for deduction for the provision written back if the same was offered to tax under the provision of section 115JB of the Act in the (by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07
- 13 - earlier year. For this purpose, we need to refer the earlier years where the assessee has paid tax under the provision of MAT. In this regard, assessee has filed detail of taxes paid under the provision of MAT which is place on page 196 of the paper book. On perusal of the details filed by the assessee, we note that the assessee was not paying the tax under the provision of MAT for the Assessment Years 2003-04 to 2006-07. The assessee has also filed the computation of income in respect of AYs pertaining to 2003-04 to 2006-07 which are placed on pages 198 to 206 of the paper book. As such tax liabilities under the normal computation income was greater than MAT provision therefore the assessee was not under the obligation to pay taxes under the MAT provision. In such a case it can be safely presumed that the effect of provision created for interest expenses in the earlier years have been duly given and offer to tax under the provision of MAT. Accordingly, the assessee cannot be made liable for paying tax under the provision of MAT for the year in which it was written back. In holding so, we find support and guidance from the order of Mumbai Tribunal in the case of Kochi Refinery Ltd. Vs. DCIT reported in 4 ITR (Trib) 95. The relevant extract of the order is reproduced below: “33. We have considered the arguments of learned counsel and the learned Departmental representative. It is an admitted fact that the provision for bad and doubtful debts was made in the financial year relevant to the assessment year 1998-99 and the same amount was added back in the regular computation. By virtue of law, it is the duty of the Assessing Officer to compute the normal total income and also the book profit under section 115JA in that year and then compare and decide to invoke the normal provisions of the Act or special provisions of book profit under section 115JB. Once the Assessing Officer invokes the normal provisions of tax, it indirectly means that he has compared the computation under section 115JA and decided that the income under normal provisions was more. In that situation it is to be presumed that the provision was added back to the book profit of that year. Even by means of Explanation ( g)introduced to section 115JA by the Finance (No. 2) Act, 2009, with retrospective effect from April 1, 1998 the provision for bad and doubtful debts would be deemed to have been added back in computing the book profit in that year and so the amount, now credited to the profit and loss account, is to be reduced by virtue of the provision of section 115TB. In view of this there is justification in the assessee's contention in claiming the provision as deduction in the computation of book profit in this year. On the fact that the assessee had been disallowed in that year under the normal computation and by virtue of the amendment now brought with retrospective effect from April 1, 1998, the provision for bad debt
(by Assessee) and (by Revenue) Gujarat State Fertilizers & Chemicals Ltd. vs. DCIT Asst.Year – 2006-07 - 14 - is deemed to have been added back in that year withdrawal and crediting into the profit and loss account now results in double taxation. Consequently, the assessee is correct in excluding the amount while computing the income under section 115JB. Accordingly the ground is allowed.” 22.3 In the light of the above decision we hold that the effect of the provision created for the interest payable to Vijaya Bank has been duly given while determining the book profit u/s 115JB of the Act. The ld. DR has also not brought anything contrary to the arguments advanced by the ld. AR for the assessee. Accordingly, we have no hesitation in reversing the order of the authorities below. Thus the ground of appeal of the assessee is allowed.” 13.2 Thus we are of the view that the impugned provision written back needs to be reduced from the book profit as claimed by the assessee. Accordingly we reverse the order of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
In the combined result, the appeal filed by the Revenue is dismissed and the appeal filed by the assessee is allowed.
This Order pronounced in Open Court on 16/10/2019