DCIT, CIRCLE - 5(1) , KOLKATA vs. M/S. KESORAM INDUSTRIES LTD., , KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘C’ BENCH, KOLKATA [Before Shri J. Sudhakar Reddy, Hon’ble Accountant Member & Shri Aby T. Varkey, Hon’ble 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 8th 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 31st, 2019 Date of pronouncing the order : November 29th, 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

2 I.T.A. No. 1443/Kol/2019 Assessment Year: 2013-14 M/s. Kesoram Industries Ltd explanation to section 801A(8) explanation to section 801A(8) of the Act, "Market Value", in relation to any of the Act, "Market Value", in relation to any goods or services, means: goods or services, means:- (i) The price that such goods or services would ordinarily fetch in (i) The price that such goods or services would ordinarily fetch in (i) The price that such goods or services would ordinarily fetch in the open market; or the open market; or (ii) The arm's length price as defined in clause (it) of Section 92F,. (ii) The arm's length price as defined in clause (it) of Section 92F,. (ii) The arm's length price as defined in clause (it) of Section 92F,. where the transfer o where the transfer of such goods or services is a specified domestic f such goods or services is a specified domestic transaction referred to in Section 92BA ". transaction referred to in Section 92BA ". 3. "Whether on facts and in circumstances of the case, the Ld. CIT(A) 3. "Whether on facts and in circumstances of the case, the Ld. CIT(A) 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 Kolkata erred in nor appreciating the fact that the assessee's generating 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, such claim any benefit under Section 801A of the Act, such claim any benefit under Section 801A of the Act, computed on the basis of rates charged by the distribution licensee from the computed on the basis of rates charged by the distribution licensee from the 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 consumer. The benefit can only be claimed on the basis of the rates fixed by consumer. The benefit can only be claimed on the basis of the rates fixed by the tariff regulation commission for sale of el the tariff regulation commission for sale of electricity by the generating ectricity by the generating companies to the distribution company. companies to the distribution company. 4. Whether on facts and circumstances of the case, the Ld. CIT(A) has failed 4. Whether on facts and circumstances of the case, the Ld. CIT(A) has failed 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 to examine the facts of the instant case under the provisions of section 80lA provisions of section 80lA r.w.s. 92BA and 92F of the Incom . 92BA and 92F of the Income Tax Act, 1961 and relevant judicial e Tax Act, 1961 and relevant judicial pronouncement of the jurisdictional Hon'ble Calcutta High Court. pronouncement of the jurisdictional Hon'ble Calcutta High Court. 5. "That the appellant craves for leave to add, delete amend or modify any 5. "That the appellant craves for leave to add, delete amend or modify any 5. "That the appellant craves for leave to add, delete amend or modify any ground before or at the time of appellate proceedings." ground before or at the time of appellate proceedings."

3 I.T.A. No. 1443/Kol/2019 Assessment Year: 2013-14 M/s. Kesoram Industries Ltd Copy of the order forwarded to: opy of the order forwarded to: 1. M/s. Kesoram Industries Ltd M/s. Kesoram Industries Ltd Birla Building 8th Floor 9/1, R.N. Mukherjee Road Kolkata – 700 001 2. Deputy Commissioner of Income Tax, Circle Deputy Commissioner of Income Tax, Circle-5(1), Kolkata