ACIT 10(1), MUMBAI vs. MAHARASHTRA STATE POWER GENERATION CO.LTD, MUMBAI

The present appeal filed by the revenue is directed against the order passed by the CIT(A)-21, Mumbai, dated 24.04.2012, which in turn arises from the order passed by the A.O under Sec. 271(1)(c) of the Income Tax Act, 1961 (for short „Act‟), dated 31.03.2011 for A.Y. 2006-07. The revenue has assailed the impugned order on the following grounds of appeal:

The appellant craves leave to amend, or alter any grounds or add a new ground, which may be necessary.”

Briefly stated, the assessee company is engaged in the business of generation of electricity and had started functioning from 06.06.2005 after the erstwhile Maharashtra State Electricity Board was trifurcated into three companies viz. (i) Maharashtra State Electricity Distribution Company Ltd.; (ii) Maharashtra State Power Generation Company Ltd.; and (iii) Maharashtra State Electricity Transmission Company Ltd. Each of the aforesaid companies were to look after one of the three aspects of the erstwhile electricity board i.e generation, transmission and distribution of electricity. Accordingly, the year under consideration i.e period relevant to A.Y. 2006-07 was the first year of operation of the assessee company. The assessee company had e-filed its return of income for A.Y. 2006-07 on 30.11.2006, declaring Nil income after claiming „set off‟ of brought forward losses and unabsorbed depreciation amounting to Rs.623,47,43,689/-. Subsequently, the assessee filed a revised return of income declaring Nil income after claiming “set off” of brought forward losses amounting to Rs.288,90,26,701/-. The return of income filed by the assessee was processed as such under Sec. 143(1) of the Act. Thereafter, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).

During the course of the assessment proceedings it was observed by the A.O that in the revised return of income of the assessee company a „note‟ had been posted below the statement of computation of income, which read as under : “Reason for revising the return: The return of income is being revised as the original return of income for the assessment year 2006-07 was filed on the basis of unaudited accounts as the accounts were not audited till the due date of filing of the return of income. This is as per the letter dated 14th February, 2007 bearing reference No. GM/CA/Rev. Return/MSPGCL/2007.” On a perusal of the tax audit report and the statement of computation of income forming part of the revised return, it was noticed by the A.O that the tax audit of the assessee company was completed only on 12.02.2007 when the report under Sec.44AB of the Act was signed and issued by the auditors in Form Nos. 3CA/3CD. It was noticed by the A.O that it was the claim of the assessee that the “Original” return of income was based on unaudited accounts, while for the revised return was as per the audited accounts. The A.O declined to accept the revised return of income filed by the assessee. As per the A.O a return of income could be revised under Sec.139(5) only on discovery of any omission or wrong statement in the „original‟ return. Accordingly, the A.O was of the view that as in the present case the return was revised on the ground that the „original‟ return of income was filed on the basis of unaudited accounts, which could never be a criteria for revising a return under Sec.139(5), therefore, he declined to accept the same. The A.O while framing the assessment made an addition of the amount of Rs.334,57,16,988/- i.e the difference in the total income as per the „original‟ and the revised return of income of the assessee. The A.O while framing the assessment also initiated penalty proceedings under Sec. 271(1)(c) of the Act.

The A.O after receiving the order of the CIT(A) called upon the assessee to show cause as to why penalty under Sec. 271(1)(c) may not be imposed on it in respect of the aforesaid three additions/disallowances made by the A.O, viz. (i) the reduction on account of reversal of excess billing: Rs.320.72 crore ; (ii) the disallowance of coal cost freight issue – Bhusaval: Rs.1631.85 lacs; and (iii) addition of the provision of difference in oil stock: Rs.20.04 lacs. The explanation of the assessee that no penalty under Sec. 271(1)(c) in context of the aforesaid additions/disallowances was called for in its case, however, did not find favour with the A.O who imposed a penalty of Rs. 113,51,46,137/- under Sec.271(1)(c) of the Act.

Aggrieved, the assessee carried the matter in appeal before the CIT(A). It was observed by the CIT(A) that as the addition made by the A.O in respect of provision for difference in oil stock of Rs.20.04 lacs was deleted in the course of the quantum appeal of the assessee, therefore, penalty u/s 271(1)(c) on the said count was liable to be vacated. As regards the claim of reversal of excess billing of Rs.320.72 crores raised by the assessee in its revised return of income, it was observed by the CIT(A), that as the tariff (rate of electricity) to be charged by the assessee from its clients was regulated by Maharashtra Electricity Regulatory Commission (for short „MERC‟), therefore, the assessee was obligated to charge the rate of tariff from its clients strictly as per the order of MERC. It was observed by the CIT(A) that as at the time of finalisation of the accounts of the assessee company for the year under consideration the MERC order was not there, P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. therefore, the bill to be raised by the assessee on its sole client viz. MSE Distribution Company Ltd. was accounted for and charged as per the mutual agreement between the Managing Directors of both the companies. It was noticed by the CIT(A) that the accounts of the assessee company were initially prepared on the basis of unaudited accounts. However, as the statutory auditors at the time of audit of the accounts of the assessee company had reported that the tariff of electricity was to be charged/accounted for as per the tariff prescribed by the regulator i.e MERC vide its order dated 07.09.2006, therefore, it was at this stage that it was realised by the assessee that it had accounted for excess sales of electricity in its accounts. Accordingly, in the backdrop of the aforesaid facts the assessee had filed a revised return of income wherein the excess billing of Rs.320.72 crores was reversed by it. It was observed by the CIT(A) that the reversal of the excess billing was carried out by the assessee as per the audited accounts which were based on the order of MERC. On the basis of his aforesaid deliberations, it was observed by the CIT(A) that as the assessee company had reversed the excess billing of Rs.320.72 crores in conformity with the MERC order which was binding on it, therefore, it could safely be concluded that no inaccurate particulars of income in respect of the said issue were furnished by the assessee. In fact, it was noticed by the CIT(A) that the assessee had made adequate disclosure in its revised return, remand proceedings and the subsequent proceedings. Apart there from, it was observed by the CIT(A) that the issue pertaining to the date of applicability of MERC order was also debatable. In order to fortify his aforesaid view, it was observed by him, that though his predecessor in the course of the quantum appeal had observed that the MERC order was effective prospectively from the month of September, 2006 for all billing purposes and was thus not relevant for the year under consideration, P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. however, the assessee had thereafter obtained a letter dated 16.07.2009 wherein MERC had clarified that its order was applicable during the year under consideration. Accordingly, in the backdrop of his aforesaid observations the CIT(A) was of the considered view that as the issue which had led to reversal of excess billing of Rs. 320.72 crores was in itself not free from doubts and debate, therefore, on the said count also the assessee could not have been visited with levy of penalty under Sec.271(1)(c). On the basis of his aforesaid observations, it was concluded by the CIT(A), that as the assessee had neither furnished any inaccurate particulars and/or concealed particulars of income insofar the reversal of excess billing of Rs.320.72 crores was concerned, therefore, in the backdrop of its explanation which was found to be bonafide/reasonable no penalty under Sec.271(1)(c) was liable to be imposed on the assessee. As regards the penalty imposed by the A.O on the issue of provision for difference in oil stock of Rs.20.04 lac, it was observed by the CIT(A) that as the said addition/disallowance had been deleted in the course of the quantum appeal by his predecessor, therefore, no penalty on the said count thereafter survived. Further, the CIT(A) adverted to the penalty imposed by the A.O on the issue of coal cost freight issue-Bhusawal of Rs. 16,31,85,000/-. It was observed by the CIT(A) that unlike in the course of the assessment proceedings the assessee had in the course of the penalty proceedings and also in the course of the appellate proceedings emanating therefrom before him, had satisfactorily explained that the coal cost freight at Bhusaval amounting to Rs.16,31,85,000/- was an expenditure pertaining to the year under consideration. It was noticed by the CIT(A) that the assessee in its revised return of income had on the basis of the remarks and report of its statutory auditors claimed the aforesaid amount as an expenditure. The CIT(A) being of the view that as the explanation advanced by the P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. assessee in respect of the aforesaid claim of expenditure was bonafide and justified being based on the auditors report, therefore, the penalty levied of the said aspect under Sec.271(1)(c) deserved to be deleted. On the basis of his aforesaid observations the CIT(A) finding merit in the appeal of the assessee deleted the penalty imposed by the A.O u/s 271(1)(c) and allowed the appeal.

The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee, at the very outset of the hearing of the appeal submitted, that as the disallowance of the excess provision for purchase of power amounting to Rs.320,72,82,510/- in the hands of the assessee company had been deleted by a coordinate bench of the Tribunal viz. ITAT „B‟ bench, Mumbai, while disposing off the appeal of the assessee for the year under consideration i.e vide its order dated 03.03.2017, therefore, the issue pertaining to levy of penalty u/s 271(1)(c) on te said aspect did not survive any more. It was submitted by the ld. A.R that the only issue that survived in context of the penalty imposed by the A.O under Sec. 271(1)(c) was the addition of Rs.16,31,85,000/- that was made by the A.O in respect of coal cost freight issue-Bhusaval. It was submitted by the ld. A.R that as the quantum of the aforesaid addition was comparatively small as against the major issues involving substantial stakes, therefore, the assessee had not made any submissions in the course of the quantum appeal before the CIT(A). Also, it was submitted by the ld. A.R that the assessee had inadvertently omitted to assail the aforesaid addition that was confirmed by the CIT(A) in its quantum appeal before the Tribunal. The ld. A.R submitted that that penalty imposed by the A.O under Sec. 271(1)(c) in respect of the aforesaid addition was after necessary deliberations vacated by the CIT(A). The ld. A.R took us P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. through the genesis of the issue under consideration and submitted that as the liability on account of unconnected wagons for coal received by the assessee amounting to Rs.16,31,85,467/- was not initially provided for, therefore, when the said fact was pointed out by the statutory auditors during the course of the audit, the assessee accounted for the same and raised a claim in respect of the said expenditure in its revised return of income. Accordingly, it was submitted by the ld. A.R that as the aforesaid expenditure was incurred by the assessee, therefore, a claim for deduction for the same was validly raised by it in its revised return of income. It was fairly admitted by the ld. A.R that as in the course of the quantum appeal the assessee had focused primarily on the other issues which involved substantial stakes, therefore, inadvertently, the aforesaid issue which was comparatively a minor item was not given much attention and on account of a bonafide omission was not assailed before the Tribunal in the quantum appeal filed by the assessee. Further, it was averred by the ld. A.R that as the assessee had came forth with a complete disclosure vis-a-vis the aforesaid addition in its statement of accounts, therefore, no penalty under Sec. 271(1)(c) was liable to be imposed in its case. As regards the reliance placed by the A.O on the judgment of the Hon‟ble Supreme court in the case of UOI Vs. Dharmendra Textiles Processors (2007) 212 CTR 432 (SC), it was submitted by the ld. A.R, that as the same was distinguishable on facts, therefore, the same would not assist the case of the revenue. In fact, it was submitted by the ld. A.R that the A.O while relying on the aforesaid judicial pronouncement had misconceived the factual position prevalent in the case of the assessee in context of the issue under consideration. Lastly, it was submitted by the ld. A.R that as the assessee was a fully owned government company, therefore, it was preposterous to allege that it had concealed its income.

Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities. It was submitted by the ld. D.R that as the assessee had admitted the addition of Rs. 16,31,85,000/- in context of its claim of expenditure pertaining to „Coal Cost Freight Issue-Bhusaval‟ and had not assailed the same in appeal before the Tribunal, therefore, the A.O had rightly imposed penalty under Sec. 271(1)(c) of the Act. The ld. D.R relied on the order passed by the A.O under Sec. 271(1)(c) and submitted that the CIT(A) had erroneously dislodged the same in context of the aforesaid issue under consideration. It was submitted by the ld. D.R that the order of the CIT(A) be set aside and that of the A.O be restored.

We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Admittedly, the penalty under Sec.271(1)(c) was imposed by the A.O, vide his order dated 31.03.2011 in respect of three additions/disallowances which had emanated from the difference of Rs.334.57 crores between the „original‟ return of income and the revised return of income filed by the assessee company viz. (i) the reversal of excess billing as per MERC order: Rs.320.72 crores; (ii) the provision for difference in oil stock: Rs.20.04 lac; and (iii) the coal cost freight issue- Bhusaval:Rs.1631.85 lacs. As the aforesaid addition made by the A.O on account of provision for difference in oil stock of R.20.04 lac had been vacated by the CIT(A) while disposing off the quantum appeal of the assessee, vide its order dated 13.11.2009, therefore, the CIT(A) had rightly observed that the issue as regards the levy of penalty under Sec. 271(1)(c) in respect of the said addition does not survive any more. Insofar the addition on account of reversal of excess billing as per MERC order of Rs.320.72 crore is concerned, we find that as the same had been deleted by the Tribunal while P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. disposing off the quantum appeal of the assessee for the year under consideration viz. Maharashtra State Power Generation Company Ltd. Vs. ACIT, Central -10(1), Mumbai (ITA No.302/Mum/2010, dated 03.03.2017), therefore, the penalty imposed by the A.O on the said count will have to meet the same fate and thus stands vacated. Accordingly, in the backdrop of the aforesaid facts the only issue which survives as regards the penalty levied by the A.O under Sec.271(1)(c) is the addition/disallowance made by the A.O in respect of coal cost freight issue-Bhusaval of Rs. of Rs.1631.85 lacs. As is discernible from the orders of the lower authorities and admitted by the ld. A.R before us, the aforesaid addition had not been assailed by the assessee in its quantum appeal before the Tribunal. Resultantly, the disallowance of the assesses claim of coal cost freight issue – Bhusaval of Rs. 1631.85 lac has attained finality. It is the claim of the ld. A.R, that as the assessee company in the course of the first appellate proceedings had focussed on the other issue wherein high stakes of Rs.200 crores of tax demand was involved, therefore, by way of an inadvertent omission the aforesaid addition/disallowance sustained by the CIT(A) was not carried any further in appeal before the Tribunal.

We shall in the backdrop of the aforesaid factual matrix now deliberate on the merits of the contentions advanced by the ld. A.R, wherein he had tried to impress upon us that the CIT(A) had rightly observed that no penalty under Sec.271(1)(c) was sustainable in respect of the addition/disallowance made by the A.O in respect of coal cost freight issue-Bhusaval amounting to Rs. 1631.85 lacs. It is the claim of the ld. A.R that the assessee which is generating power through thermal, hydro and gas based power stations is in receipt of coal through railway wagon from various coal companies. At times all the racks (set of 58 wagons) meant for the assessee would not be P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. received by it. On a similar footing, some racks not meant for the assessee would be received by it. Accordingly, the aforesaid wagons were termed as “missing” and “unconnected wagons”, respectively, by the assessee. It is claimed by the ld. A.R that as a matter of consistent practice the assessee in respect of the “missing wagons” would lodge a claim for the cost of the coal on the railways. Similarly, the assessee would create a liability for the coal received in respect of “unconnected wagons”. It is submitted by the ld. A.R that initially the assessee would raise a claim/create a liability prevalent on the basis of available declared grade rates of collieries, but thereafter, on receipt of the invoices of “missing wagons” the valuation would be corrected and necessary rectification entry was passed in the „books of accounts‟. Similarly, for the “unconnected wagons” liability for the cost of coal was initially created on the basis of the average rate of coal received by the respective power station. It was submitted by the ld. A.R that during the reconciliation of the coal wagons with the railways the origin of the “unconnected wagons” would be traced and the valuation of the coal received in respect of the said unconnected wagons was revised and necessary accounting effect would be given in its „books of accounts‟. In the backdrop of the aforesaid prevalent practice, it is the claim of the ld. A.R that it was in the course of its audit that it was pointed out by the statutory auditors that a liability on account of “unconnected wagons” amounting to Rs.16,31,58,467/- was not provided for and accounted for by the assessee. Accordingly, it is the claim of the ld. A.R that as the aforesaid expenditure that was incurred was not claimed as a deduction, therefore, the assessee on learning about its said mistake, had thereafter accounted for and raised the claim for the same in its revised return of income.

We have given a thoughtful consideration to the issue before us in the backdrop of the contentions advanced by the authorized P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. representatives for both the parties. As is discernible from the records, the disallowance of the coal cost freight issue-Bhusaval of Rs,16,31,85,000/- forms part of Rs.334.57 crores i.e the difference in the total income as per the „original‟ and the revised return of income filed by the assessee. As observed by us hereinabove, no discussion as regards the disallowance of the aforesaid coal cost freight issue- Bhusaval of Rs. 16,31,85,000/- is available in the assessment order. In fact, it was only in the course of the quantum appellate proceedings that when the assessee had filed the complete details in respect of the difference of Rs.334.57 crores, that the A.O had thereafter in his „remand report‟ submitted that the reduction to the said extent should not be allowed. We find that the aforesaid disallowance of Rs.16,31,85,000/- was upheld by the CIT(A) while disposing off the quantum appeal, for the reason, that the assessee had failed to submit its counter comments on the A.O‟s remand report on the issue under consideration. Be that as it may, we find that in the course of the penalty proceedings as well as the appellate proceedings emanating therefrom before the CIT(A), the assessee had satisfactorily explained that the coal cost freight issue - Bhusaval of Rs.16,31,85,000/- was an expenditure pertaining to the year under consideration. As a matter of fact, the assessee had in its revised return of income claimed the said amount as an expenditure on the basis of the remarks and report of its statutory auditors. In the backdrop of the aforesaid facts, we are of a strong conviction that the aforesaid claim of expenditure raised by the assessee was based on a bonafide and justified grounds. Apart there from, we find that though the assessee had specifically raised the aforesaid claim in its revised return of income, however, the A.O had not carried out any inquiry/investigation as regards the veracity of the said claim of the assessee. Apart there from, we are also of a strong conviction that as the issue pertaining to coal cost rate– P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. Bhusaval of Rs.16,31,85,000/- was never discussed in the assessment order, therefore, the said fact also supports the claim of the assessee that no penalty under Sec. 271(1)(c) could have been validly levied in its hands in respect of the said issue. Also, we find that the assessee in the course of the penalty proceedings before the A.O, and also in the course of the appellate proceedings before the CIT(A) had satisfactorily explained that the coal cost freight issue-Bhusaval of Rs.16,31,85,000/- was an expense allowable under Sec.37(1) of the Act, which for the said reason was claimed as a deduction in its revised return of income on the basis of the audit report. We find that the lower authorities had not recorded any observation which could dislodge the veracity of the aforesaid claim of expense so raised by the assessee in its revised return of income. Apart there from, we are also of a strong conviction that now when the assessee had came forth with the full disclosure of all the particulars in respect of its aforesaid claim of expense, which as observed by us hereinabove had not been proved to be incorrect by the lower authorities, therefore, merely for the reason that the addition/disallowance on the said count had not been assailed by the assessee in its quantum appeal before the Tribunal would not justify imposition of penalty under Sec. 271(1)(c) on the assessee on the said standalone basis. Our aforesaid view is fortified from the fact that the penalty proceedings are separate and distinct from the assessment proceedings, and merely for the reason that an addition/disallowance had been made in the hands of the assessee would not justify imposition of penalty u/s 271(1)(c). We have given a thoughtful consideration to the observations of the CIT(A) that as the assessee had raised a bonafide claim of expense as regards the coal cost freight issue-Bhusaval amounting to Rs.16,31,85,000/- in its revised return of income, therefore, no penalty under Sec.271(1)(c) could have been levied on it, and in the backdrop of our aforesaid P a g e | DCIT-10(1) Vs. M/s Maharashtra State Power Generation Co. Ltd. deliberations find ourselves to be in agreement with the view taken by him. Accordingly, finding no infirmity in the order of the CIT(A) wherein he had rightly vacated the penalty imposed by the A.O under Sec.271(1)(c), we uphold the same.

The appeal of the revenue is dismissed. Order pronounced in the open court on 07.08.2019