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Income Tax Appellate Tribunal, “C” BENCH, CHENNAI
Before: SHRI ABRAHAM P. GEORGE & SHRI G. PAVAN KUMAR
आदेश /O R D E R
PER G. PAVAN KUMAR, JUDICIAL MEMBER:
The Revenue has filed appeal against the order of the Commissioner of Income Tax (Appeals) - 3, 865, 1546 & 1554/2013-14, dated 07.02.2014 passed u/s. 154 and 250 of the Income Tax Act.
:-2-: I.T.A. No. 1655/Mds/2014
The Revenue has raised the following grounds:
2.1 The CIT(A) erred in deleting the addition made towards difference of profit between the value of bagasse transferred to and power transferred from M/s. Terra Energy Ltd., 2.2 The CIT(A) ought to have appreciated that the fact of utilization of steam by the assessee company was never established with relevant and sufficient evidence.
2.3 It is submitted that the relied upon order of the ITAT in ITA No.
635/Mds/2010 and dated 17.01.2013 for the assessment year 2000-01 has not been accepted by the department and an appeal u/s. 260A has been preferred against the same before the Hon'ble High Court of Madras.
2.4 It is also submitted that on a similar issue in assessee's own case, a SLP ha been preferred before the Hon'ble Supreme Court against the order of the Hon'ble High Court of Madras for the assessment year 2000-01 in TCA
No. 548 of 2013 dated 03.02.2014.
The Brief facts of the case that the assessee company is in the business of manufacture of Sugar and Alcohol and filed Return of income for the assessment year 2009-10 on 29.09.2009 with Nill income and Return of income was processed u/s. 143(1) of the Act and subsequently, notice u/s. 143(2) was issued. The Ld. AR appeared from time to time and filed the details. In compliance, the Ld. AO on the dispute of Bagasse has made a tabulation at Page 3 of the order and calculated the :-3-: I.T.A. No. 1655/Mds/2014 difference between value of Bagasse and Power transferred at Rs. 11,03,84,378/-.
Against the order of the assessment order 143(3), assessee filed Rectification Petition u/s. 154 of the Act and the Ld. AO passed Rectification order dated 23.03.2012 has made further addition towards the value of the Bagasse and brought the difference of value of Bagasse and power at Rs. 1,30,15,958/- as there was apparent arithmetical error on record and considered the facts of purchase of Steam and Power from the directors report.
Aggrieved by the order u/s. 154 of the Act, assessee company filed an appeal with the CIT(A). In the appellant proceedings, the Ld. AR argued that the Assessing Officer in Rectification proceedings has additionally increase value of Rs. 1,30,15,958/- to the value determined in original assessment Rs. 11,03,84,378/- and aggregated total including the difference worked out to Rs. 12,34,00,336/-. The Ld. CIT(A) considered the findings of the Assessing Officer and assessee's submissions made in the assessment proceedings and relied on the order of the co-ordinate bench of this Tribunal in assessee's own case for the assessment year 2000-01 at Para 22.2read as under:
" The Hon'ble ITAT, Chennai in its order in and 791/Mds/2012 dated 17.01.2013 (at para 24 of the said order), for the assessment year 2000-01 and also, Ld. CIT(A) in order No. TA No. 821/Mds/2011-12/A.III dated 14.03.2013 (at para 5.3) for the assessment year 2009-10, both in the appellant's own case, have decided the said issue in favour of the appellant. Respectfully, following the decision of the Hon'ble ITAT, Chennai as well as Ld. CIT(A), cited supra, the addition made by the AO is deleted. The ground is allowed." and deleted the addition and partly allowed the appeal.
:-4-: I.T.A. No. 1655/Mds/2014
Aggrieved by the order of the CIT(A), Revenue has filed an appeal before us and argued that the CIT(A) erred in deleting the addition towards difference of Bagasse and power transferred from M/s. Terra Energy Ltd and Revenue has challenged the decision relied by the CIT(A) of the Higher Forums. The Ld. AR of the assessee submitted that the co-ordinate bench of this Tribunal in assessee's own case for the assessment year 2009-10, where appeal was filed against the order of the assessment u/s. 143(3) of the Act in dated 29.07.2016 and deleted the addition which read at Para 2.3 as under:
" 2.3 After hearing the both the parties, this issue was decided by the Tribunal in assessee's own case in ITA No.635/Mds./2010 & 791/Mds./2012 for assessment year 2000-01 vide order dated 17.01.2013. The Tribunal held as follows:- “24. We have heard both sides at length and also gone through the relevant findings of the Assessing Officer as well as CIT(A) and case law cited by the assessee i.e. CIT vs. ITA No.1231,1457/Mds./15 TANFAC Industries Ld.: S.L.P. (C) No. 18537 of 2009 decided by the Hon’ble Supreme Court vide order dated 27.07.2009. Both parties are not disputing the facts relevant to the ground. The only question is that in the assessment order, the Assessing Officer had not taken into consideration the cost of steam purchased by the assessee for the purpose of producing power. In appeal, the CIT(A) has quantified the cost at Rs.156/- per tonne. Before us, the Revenue has not produced any material so as to controvert the findings of the CIT(A) about the steam received and its cost. We also notice that in the above said case law as well, the Hon’ble Supreme Court has held that in an issue pertaining to special deduction under section 801A of the ACt” that the concerned assessee is entitled to claim deduction qua the value of the steam used for captive consumption. Nevertheless, in modem day technology, ‘steam’ is also an asset carrying value for the purpose of computing profits. In this view of matter and more so, when there is no record rebutting the findings of the CIT(A) qua valuation of steam, we observe that :-5-: I.T.A. No. 1655/Mds/2014 assessee’s claim has been by the CIT(A). Hence, we see no reason to interfere.” In view of this above decision of the Tribunal in assessee's own case, we are inclined to decide the issue in favour of the assessee. This ground raised by the Revenue is dismissed."
We are of the opinion, since the co-ordinate bench of this Tribunal has deleted the addition on disputed issue in the original assessment passed u/s. 143(3) of the Act, therefore, further disallowance in order u/s. 154 of the Act shall no longer subsist, and Accordingly, we rely on co-ordinate bench decision and dismiss the grounds of the Revenue.
In the result, the appeal of the Revenue is dismissed.
Order pronounced on Wednesday, the 22nd day of December, 2016 at Chennai.