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2018 (6) TMI 686 - AT - Income TaxExcise duty refund claim - Addition of income u/s 5 read with Section 28(iii)(b) - capital gain eligibility - Held that:- Appeal of the assessee has been allowed by placing reliance upon the order of this Tribunal in assessee’s own case for A.Y. 2009- 10 CIT VERSUS MAITHON POWER LTD. [2015 (7) TMI 784 - DELHI HIGH COURT] when the business of the assessee is not yet set up then the question on assessing income of the assessee company to the Previous Year does not arise. Even otherwise the excise duty on the question was of material used for construction/erection of the project, which is in the capital filed and the refund of the same goes to reduce the cost of the assessee. As upheld by HC [2015 (7) TMI 784 - DELHI HIGH COURT] he finding of CIT(A) that the business of assessee had yet not been set up during the A.Y. 2009-10 and that all the costs incurred by it would have to be taken as capital work in progress cannot be faulted. Where there is a refund of excise duty it would go to reduce the project cost/capital work in progress since it is relatable only to the capital assets. - Decided against revenue
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