TMI Blog2007 (8) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer noticed that some of the units had shown fuel cost while other units were showing no cost of fuel. It was explained that in gas turbines which uses gases for generation of electricity the natural gas after mixing with air is burnt in the gas combustion to produce gases at a very high temperature and these gases are then used to run gas turbines for generation of electricity. After this cycle, the exhaust hot gases released from gas turbine are routed through the waste heat recovery boilers to utilize it in heating water and producing steam. The steam produced in waste heat recovery boilers is then used to generate electricity in the steam turbine attached separately with such boilers. The steam turbine can only be run from hot gases released from the gas turbine. The steam turbine does not consume any fuel except waste hot gases of gas turbine. Thus it was explained that for generating electricity from steam turbine there was no cost of fuel. However, the Assessing Officer was of the view that such released hot gas were value-added product received from gas units and the same was not an ordinary air. The steam generated by hot gas has a value and it should take into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown huge losses. In that situation the department would not shift the operation of gas unit to steam unit invoking such provision. On the other hand, the ld. DR had relied on the orders of Assessing Officer and CIT(A). After considering the submissions of both the parties as per para 8 Tribunal held that no expenditure was incurred by the assessee for hot gases utilized in steam turbine and, therefore, there is no question of debiting any amount on account of such notional expenses and hot gas was freely available to the steam unit and if the assessee has not set up the steam unit such hot gas would have to be exposed to open atmosphere. There is no evidence on record that such hot gas can be sold in the open market. Due to advanced technology only the gas which was going waste could be utilized for generating electricity. Thus it was held that no portion of expenditure incurred by the gas unit can be allocated to steam unit. Applicability of sections 80-I(6) as well as 80-I(8) and 80-IA(9) was also considered in paras 9 and 10 and it was held that no help can be derived by the revenue from these sections to make the case of Assessing Officer acceptable and it was held that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal should be made. 6. On the other hand, learned counsel for the assessee contended that all the aspects have been considered by the Tribunal on merits and after considering various contentions, position of law and provisions of statute Tribunal has come to the conclusion that allocation of expenses as done by the Assessing Officer was not warranted as the same was against the provisions of law. There was no fuel cost to the steam unit and whatever cost of fuel was that was pertaining to gas unit. Thus firstly, he contended that when a conscious decision has been taken by the Tribunal, the same cannot be said to be liable for rectification as scope of power under section 254(2) is very limited. The mistake under section 254 is a mistake which is obvious or patent only. The mistake which requires to be established by arguments and on long run process of reasoning on points on which there may be conceivable to views cannot be a mistake apparent from record within the meaning of section 254. For this purpose he relied on the following decisions:- 1. Abbey Chemical (P.) Ltd. v. ITO [2005] 94 TTJ (Ahd.) 275; 2. Karan Co. v. ITAT [2002] 253 ITR 131 (Delhi). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble 'B' Bench ITAT that the order passed by the Hon'ble Bench suffers from the following infirmities on facts and in law and, therefore, needs to be reviewed by hearing this miscellaneous application. Hon'ble Bench's order is infirm in facts and in law in holding a view based on a letter wrongly quoted as letter written by the Secretary (Revenue) which is factually incorrect and needs to be reviewed on correct facts. Thus he pleaded that the misc. application filed by the revenue deserves to be dismissed. 10. We have carefully considered the rival submissions in the light of material placed before us. We have carefully gone through the order of the Tribunal. While deciding the issue Tribunal has taken into consideration all the factors based upon which the department has made allocation of expenses. All the aspects have been considered. It was observed that the hot gases were waste products and by using advanced technology the same could be used to generate electricity. It is also observed that there was no material on record that released hot gas was a marketable product. Provisions of sections 80-I(6), 80-I(8) and 80-IA(9) are referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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