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

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 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.

A perusal of the same demonstrates that the issue in question is covered in same demonstrates that the issue in question is covered in same demonstrates that the issue in question is covered in favour of the assessee by the decision of the Tribunal in the assessee’s own case favour of the assessee by the decision of the Tribunal in the assessee’s own case favour of the assessee by the decision of the Tribunal in the assessee’s own case for the earlier Assessment Years 2008 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., I.T.A. No. 505/Kol/2017 & ors., order dt. 26/04/2018. Though, the revenue has Though, the revenue has challenged this order of the Tribunal before the Hon’ble Calcutta High Court, we challenged this order of the Tribunal before the Hon’ble Calcutta High Court, we challenged this order of the Tribunal before the Hon’ble Calcutta High Court, we are bound by the order of the Co are bound by the order of the Co-ordinate Bench of the Tribunal on this issue. ordinate Bench of the Tribunal on this issue. Hence, we uphold the order of the ld. CIT(A) and d Hence, we uphold the order of the ld. CIT(A) and dismiss this appeal of the ismiss this appeal of the revenue.

In the result, appeal of the In the result, appeal of the revenue is dismissed. Kolkata, the Kolkata, the 29th day of November, 2019. . Sd/- Sd/- [Aby T. Varkey] [J. Sudhakar Reddy] J. Sudhakar Reddy] Judicial Member Accountant Member Accountant Member Dated : 29.11.2019 {SC SPS} 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

CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.