TMI Blog2012 (6) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining an additional ground by CIT(A)which was not raised before the AO - AO contested that no revised return was filed - Held that:- As decided in Goetze (India) Ltd. vs. CIT [2006 (3) TMI 75 (SC)]that when making of a new claim before the Tribunal or for that matter the CIT(A), who is also not the assessing officer, but who is the appellate authority, assessee does not have to initiate a new claim before them by way of filing the revised return of income - can be done by way of letters or by way of filing revised computation - against revenue. Granting of deduction u/s 80IA by CIT(A)- deemed income through insurance premia - Held that:- Every receipt of the industrial undertaking is not an eligible profits derived from the said undertaking. With the categorization done by the Supreme Court based on a logic ie eligible profits and ineligible ancillary profits, the said distinction has to be looked into by the AO while adjudicating the issue - no clear finding of the Revenue authority that it is not derived from the business of the undertaking, there is no clarity as to whether the said income falls as operational income or ineligible ancillary profit - directed to AO TO gathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO in changing the head of income in the respect of the above receipt and taxing the same under the head income from other sources . 4. Briefly stated, relevant facts of the case are that the assessee is engaged in the business of generation of electricity and selling the same to APTRANSCO, a subsidiary of APSEB. During the assessment proceedings, AO made an addition of ₹ 2,40,45,266/- representing the income tax receivable from AP TRANSCO. Factually, the Power Purchase Agreement provides for reimbursement by the AP TRANSCO of the income tax payable to the assessee and accordingly, the assessee raised the bill in respect of the tax paid under MAT provisions also and the AP TRANSCO refused to reimburse the same. Of course, there is no dispute on the tax paid under normal provisions. Thus, there is dispute on the very payability of the MAT segment of tax by AP TRANSCO to the assessee, who of course incessantly demanded for reimbursement and the matter reached the judicial forum for arbitration first before the APERC and then to the AP High Court. Therefore, assessee has disputed the issue and the impugned MAT was never reimbursed till date and the issue is sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the undermentioned documents may kindly be admitted as addl. evidence and taken into account while adjudicating the appeal. S.No. Description Sheet Nos. 3. Copy of AP TRANSCO letter dated 9-4-2002 1 5 Copy of AP TRANSCO letter dated 16.8.2005 2 6 Copy of AP TRANSCO letter dated 19.8.2005 3 7 Copy of AP TRANSCO letter dated 6.7.2006 4 8 Copy of AP TRANSCO letter dated 12.9.2006 5 9 Copy of AP TRANSCO letter dated 01/03.12.2007 6 10 Copy of AP TRANSCO letter dated 17/19.4.2008 7 Copy of assessee s letter dated 2.9.2006 with enclosures 8 to 10 12. Copy of assessee s letter dated 30.6.2006 with enclosures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the file of the assessing officer. In this regard, we have examined the additional evidences furnished before us. These papers constitute the correspondence that took place between the assessee and the APTRANSCO. Further, there is categorical submission by the Ld Counsel that the matter is sub-judice unlike the way the CIT(A) mistakenly concluded stating that there is no dispute on the issue of reimbursebility of the MAT paid by the assessee. Considering the nature of the papers filed before us, we find that the said documents do not require any investigation into the basic facts of the issue as they are merely the correspondence between the assessee and the APTRANSCO. In fact, these documents will help in arriving at a right decision regarding the accrual or otherwise of the receivable. Considering the decision of the Hon ble Supreme Court in the case of NTPC (299 ITR 383) , we are of the opinion that the papers filed before us should be admitted . 9. The other limb of the prayer relates to is the request for remanding to the AO is to be allowed or not. In this regard, we find that the same should be considered favorably considering the principles of natural justice. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... call for specific adjudication. 14. Ground No.2 relates to the action of CIT(A) in entertaining an additional ground, which was not raised before the assessing officer. According to the Revenue, the admission of such additional ground and adjudication thereon is not proper. In this regard, learned counsel for the assessee mentioned that the CIT(A) is free to entertain any issue which was not raised before the assessing officer,and therefore, the same is proper. 15. We heard the parties and perused the orders of the revenue and the paper book filed before us. On finding that the impugned claim is not made in the original return or by way of filing the revised return, the AO denied the claim and the CIT(A) entertained and adjudicated the issue with which the revenue is aggrieved in the present appeal. For this the CIT(A) relied on the binding judgment in the case of Goetze (India) Ltd. vs. CIT 284 ITR 323 (SC) . In this regard, we have perused the relevant portions of the judgment and the relevant portions ie para 17 on page 4, of the judgment of the Supreme Court are extracted as under. 17. In Goetze (India) Ltd. vs. CIT (2006) 204 CTR (SC) 182 : (2006) 284 ITR 323 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt involved in the present case, being insurance premia paid, is connected with the manufacturing activity of the undertaking, and therefore, the same is operational income of the assessee, and consequently, the said judgment of the Apex Court is distinguishable on facts. 19. We perused the facts of the case and issues raised by the parties before us. On understanding the issue, we find that the orders do not speak of the basic findings relevant for adjudication of this tax refund and if it constitutes an eligible profit or ineligible ancillary profit in view of the Supreme Court decision in the case of Liberty India 217 ITR 218 . It is also evident that the authorities at relevant point of time did not have the benefit of the said judgment of the Apex Court in the case of Liberty India (supra), which is dated August 2009. We have also perused the operational portion of the said decision given on page 219 of the reported said ITR which reads as follows:- Incentive profits are not profits derived from eligible business under section 80-IB: they belong to the category of ancillary profits of such undertaking. Profits derived by way of incentives such as DEPB/ Duty dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceivable from A.P. Transco as income of the assessment year 2002-03. 25. Except for the amount involved, this issue is identical to the one considered by us, in the context of the assessee s appeal for the assessment year 2002-03 in the foregoing paras of this order. In the circumstances, for the detailed reasons discussed in paras above of this order, this issues for the assessment year 2006-07 also have to be set aside to the file of the assessing officer for fresh consideration, considering inter alia the additional evidence that the assessee has filed before us, in accordance with law and after giving reasonable opportunity of hearing to the assessee. 26. This appeal of the assessee is allowed for statistical purposes. Revenue s Appeal : ITA No.1580/Hyd/2008 27. In this appeal also, Grounds No.1 and 5 are general in nature, and do not call for separate adjudication. 28. Ground No.2 relates to the action of the CIT(A) in entertaining an additional ground not raised before the assessing officer. This ground is similar to the one raised by the Revenue for the assessment year 2002-03. Hence, for the reasons discussed while dealing with the corresponding groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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