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Income Tax Appellate Tribunal, ‘C’ BENCH,
Before: Shri M.Balaganesh & Shri S.S.Viswanethra Ravi
Shri S.S. Viswanethra Ravi, JM :-
This appeal by the Assessee is directed against the order dated 15-03-2013 of the Commissioner of Income Tax, Kolkata passed U/Sec 263 of the Act for the assessment year 2008-09.
In this appeal, the Assessee has raised the following grounds:- 1) That the Commissioner of Income-tax was wrong in holding the Assessment Order dated 30-11-2010 passed u/s 143(3) for the Assessment Year 2008-09 as allegedly erroneous and prejudicial to the interest of Revenue and thus he erred in setting aside the said Assessment Order by way of Revision under section 263. 2) That without prejudice to the contention raised in Ground No.1 above, the Commissioner of Income-tax was ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 1
wrong in directing the Assessing Officer to assess the income of the appellant de novo.
3) That without prejudice to the contentions raised in Grounds Nos.1 and 2 above, the Commissioner of Income- tax was wrong in not properly appreciating the appellant's explanation as regards the processing by way of stepping down in the matter of Transmission of Power and thus he erred in observing that the allowance of Additional Depreciation had allegedly rendered the Assessment Order erroneous and prejudicial to the interest of Revenue.
4) That without prejudice to the contentions raised in Grounds Nos.l and 2 above, the Commissioner of Income- tax was wrong in not appreciating the fact that the appellant had not been required to deduct tax at source while paying the cost of fuel purchased and thus he erred in observing that the Assessing Officer's alleged failure to consider the disallowance u1s 40(a)(ia) had allegedly rendered the Assessment Order erroneous and prejudicial to the interest of Revenue.
5) That the appellant craves leave to add, alter or withdraw any ground or grounds of appeal at or before the hearing of the appeal.
The CIT, having exercising jurisdiction u/s 263 of the Act, on an examination of the assessment record relating to the year under consideration found that the Assessee claimed additional depreciation of Rs. 19,26,87,056/- and the same was allowed by the Assessing Officer without examining the relevant provision as provided under Section 32(1)(iia) of the Act. The CIT was of the opinion that the assessing was not engaged in the business of manufacturing or production or any article or thing or in the business of generation or "generation and distribution" of power during the year under consideration and it is not eligible for additional depreciation u/s 32(1)(iia) of the Act.
The CIT, further noticed a short fall of deduction of TDS u/s 194C of the Act on account of vehicle hire charges. The TDS on Rs. 26,49,1261- was required to be disallowed u/s 40(a)(ia) ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 2
of the Act and the AO failed to make such disallowance. Taking into consideration both above, the CIT was of the view, that the A.O. under assessed the income of the Assessee involving additional depreciation u/s 32(1)(iia) and disallowance u/s 40(a)(ia) of the Act totalling to Rs. 19,53,36,182/- consisting both independently at Rs.19,26,87,056/- and Rs. 26,49,126/- respectively and a notice u/s 263 of the Act was issued to the assessee why the assessment order dt:30-11-10 should not be rendered as erroneous and prejudicial to the interest of the Revenue.
In response to the said notice issued u/s 263 the assessee, filed a written submission defending the assessment order on the two issues as raised by the CIT and urged to drop the proceedings as initiated U/Sec 263 in view of the submissions as by it through its written submissions. The relevant portion of which is reproduced herein below:
“1. Re: Additional Depreciation The activities of WBSETCL are towards receiving Power from the Generating Stations and thereafter to carry out different processes through which the concerned Power is "stepped down" into powers of different strengths in order to transmit the Power for the purpose of distribution to various consumers. In view of the fact that WBSETCL has to carry out certain specific activities for the "stepping down" of the strength of Power received by it from Generating Stations, such processing should be considered as being of the nature of "production". On the basis of this understanding WBSETCL claimed Additional Depreciation u/s 32(1)(iia) in relation to the new plant and machineries acquired during the year for utilization in such processing.
TDS on Fuel Bill.
The Fuel Bills represent the cost of Fuel supplied to WBSETCL by the persons from whom vehicles had been taken on hire. It had been agreed beforehand that WBSETCL was required to pay the actual cost of Fuel on the basis of the relevant supporting documents. There being no requirement to deduct tax at source from the cost of items purchased, ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 3
such payments had not attracted the provisions of TDS u/s 194C."
According to CIT, the processing stepped down of power into different strengths would not result in a situation that the assessee is engaged in the business of manufacturing or production of any article or thing or in the business of generation or generation and distribution of power and the Assessee is not eligible for deduction under Section 32(1)(iia) of the Act. In so far as, the disallowance u/s 40(a)(ia) of the Act the CIT did not accept the contention of the assessee that it had no liability to deduct tax at source from the cost of fuel purchased from vehicle suppliers and treated the same as as a wilful misrepresentation. Accordingly the assessment order passed u/s. 143(3) on 30.11.2010 for AY 2008-09 was set aside and the AO was directed to conduct detailed examination de novo and to assess the income of the assessee. The observation of which is reproduced herein below:
The submission of the assessee is considered. Regarding allowability of additional depreciation the assessee's mere claim that it has to carry out different processes through which Power is "stepped down" into different strengths and therefore such processing should be considered as being of the nature of "production" is without any evidence and detailed explanation. In the absence of rational and tangible explanation regarding ingredients of production, process of production and the final product it cannot be considered that the asessee was engaged in the business of manufacturing or production of any article or thing or in the business of generation or generation and distribution of power. By its own admission, the business of the assessee is "Only Transmission" of power without any element of generation of power. The use of the word "AND" between the words generation and distribution is significant. This clearly implies that when the assessee is engaged only in distribution of power without any element of generation of power, the deduction under clause (iia) of Section 32(1) is not allowable. Had the assessee been engaged both in generation and distribution of power, it may have been entitled to such deduction. Needless to say that where the ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 4
assessee is engaged only in generation of power, in that case also the said deduction would be available to it. However, since the assessee is engaged only in transmission and not even distribution of power without any generation of power, by its own admission, the said deduction u/s 32(i)(iia) appears to have been wrongly allowed by the AO. It may also be pointed out that the assessee cannot be said to be engaged in the business of generation of power because the assessee get the already generated power and its output is also power. There is nothing in the nature of generation in the process that it undertakes. It is clear that the AO has failed to examine the claim of the assessee regarding additional depreciation in context of Section 32(1 )(iia) of the Income Tax Act with reference to the nature of business activity, the nature of production/ generation or lack of it thus allowance of additional depreciation of Rs. 19,26,87,056/- without detailed examination has rendered the assessment order erroneous in so far as it is prejudicial to the interest of the revenue.
Regarding non-deduction of tax at source on vehicle hire charges the assessee's claim that the expenditure of Rs. 26,49,126/- represents fuel bills for the cost of fuel supplied to WBSETCL by persons from whom the vehicles had been taken on hire appears to be a mere ploy. Vehicle hire charges are paid on account of the capital asset being the vehicle and the revenue expense of fuel for running the vehicle. The assessee in the instant case has split its vehicle hire cost into two bills, one for the vehicle and the other for the fuel. The assessee's contention that it had no liability to deduct tax at source from the cost of fuel purchased from vehicle suppliers is a wilful misrepresentation of the facts as such vehicle suppliers cannot be held to have sold fuel to the assessee company. Thus the failure of the AO to examine this issue in detail in context of the actual facts and circumstances of the case and his failure to consider the disallowance of the sum of Rs.26,49,126/- u/s. 40(a)(ia) has rendered the assessment order erroneous in so far as it is prejudicial to the interest of the revenue.
Aggrieved by the impugned order of CIT, the Assessee before this Tribunal questioning the same by aforementioned grounds of appeal, wherein, the question arises for our consideration whether the order of CIT is justified in the facts and circumstances of the case.
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In support of the grounds raised herein above, the Ld. AR submits that the stepping down is a process in high transmission lines which generates high voltage which, in turn, supplies to consumers and such process requires special equipment and the assessee claimed the additional depreciation on such equipment. The Ld.AR relied on a decision of Ahmedabad Benches of Tribunal in the case of Anita Exports, Surat in ITA 2892/Ahd/2009 for A.Y 2006-07 for the proposition, that the transmission of power involves manufacturing activity. Regarding the other issue, the Ld.AR submits that the entire cost of the fuel should be disallowed and referred to Sl.No-1 and Sl.No-6 in three contracts placed at page no:4 of paper book. The Ld.AR submits the assessee incurred loss and paid tax on MAT. The Ld.AR argued that the Assessee filed an appeal before the CIT-A having jurisdiction against the original assessment, wherein, the CIT-A has given substantive relief and the said assessment order got merged with the first appellate order and the impugned order passed U/Sec 263 is bad under law and to support the same relied on a decision of Hon’ble High Court of Calcutta in the case of Jeewanlal (1929) Ltd vs ACIT reported in 108 ITR 407 (Cal).
The Ld.DR submits that loss or income has to be treated as equal and loss has to be reduced and it has to be taken as an isolated one. The AO wrongly allowed additional depreciation on machines used in transmission of power. The Ld.DR argued that the decision as relied in the case Anita Exports, Supra is not relevant to the facts of the case on hand and facts of case therein are entirely different. The Ld.DR drew our attention to the amendment to Section 32 of the Act and argued that the said proposed amendment is applicable from A.Y 2017- ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 6
18 onwards and will take effect from 01-04-2017. Regarding the disallowance on fuel charges, the Ld.DR argued that both vehicle and fuel comes under one contract and the assessee can not bifurcate charges on vehicle and fuel. The Ld.DR advanced an example of his department engaging vehicles for its officers under one contract and applicability of Section 194C thereon. In reply, Ld AR submits that there is special mention of supply of fuel separately in the agreement and relied on the order of CIT.
Heard rival submissions and perused the material evidence on record. From the assessment order, it could be seen that the AO had verified entire aspect of claim of depreciation, which includes additional depreciation on the impugned issue and accordingly, granted the depreciation to the assessee. These facts are quite evident from the computation of total income made by the AO in assessment order. Hence, it could be safely concluded that adequate enquiry has been made by the AO in the assessment proceedings. When enquiry has already been made on an issue just because sufficient discussion has not been made by the AO in his order, that cannot become a subject matter of revision proceedings u/s. 263 of the Act. Since we are deciding this aspect on the ground that adequate enquiry has been made by the AO, we do not deem it fit to deal with other arguments as advanced by the ld.AR on this aspect. Therefore, the action of the CIT to invoke revisionary jurisdiction u/s. 263 of the Act on this aspect deserves to be dismissed.
Regarding the action of the CIT for applicability of TDS provisions on payments towards fuel, we find that the payment towards fuel and lubricants is also made to contractors as the contract states that the rate per K.M mentioned in the contract is all inclusive price (fuel and lubricants) and since the entire payments made to contractors, squarely
ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 7
falls within the ambit of TDS provisions and non-deduction of the same would attract disallowance u/s. 40(a)(ia) of the Act. Therefore, we hold that the CIT is right in invoking revisionary jurisdiction u/s. 263 of the Act in respect of this issue.
In the result, the appeal of the assessee is partly allowed as stated above.
Order pronounced in the open Court on 21st October, 2016.
Sd/- Sd/- M.BALAGANESH S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 21 /10/2016
Copy of the order forwarded to:- 1. The Appellant/Assessee : West Bengal State Electricity Transmission Co.Ltd Bidyut Bhawan Block ‘ DJ’ Sector-II, Bidhan Nagar, Kol-91. 2. The Respondent/Department: The Commissioner of Income Tax, Income Tax Department,Aaykar Bhawan P-7 Chowringhee Square, Kolkata-69. 3. CIT 4. CIT(A) 5. The Departmental Representative 6. Guard File True Copy By order Assistant Registrar ** PRADIP SPS Income Tax Appellate Tribunal Kolkata benches, Kolkata ITA No. 1005/Kol/13 W.B State Electricity Transmission Co.Ltd 8