TMI Blog2013 (10) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. These appeals are emanated from the order of the Ld. CIT(Appeals)- VI, Ahmedabad, order dated 16.11.2012 for A.Y. 2008-09. Both appeals were heard together and are being disposed of by way of this common order for the sake of convenience. The substantive grounds of appeal of the assessee and Revenue are reproduced below: "1. Ld. CIT(A) erred in law and on facts in directing the AO in relation to ground Nos.9, 10 and 11 before him, "to modify the assessment order in light of the decision of the Tribunal (for A.Y.2006/07) on this issue" viz in relation to disallowance of deduction u/s. 80IA of the Act made by AO of Rs.3,59,34,477/- for captive power plant and Rs.2,03,68,535/- for Co-generation plant by invoking the provisions of subsection (8) of section 80IA of the Act. Ld. CIT(A) completely erred in not appreciating the fact that the Hon'ble Tribunal in A.Y.2006/07adjudicated ground against disallowance of deduction claimed u/s. 80IA in case of new power plant only (covered before him vide ground No.8) whereas deduction denied in respect of captive power plant as well as co- generation plant through oversight is not at all discussed in the said order of the Hon'ble Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that since A.Y. 2001-02the Department has consistently held that the assessee is not eligible for deduction u/s. 80IA of the Act for the New Power Plant. This denial of deduction has now been upheld by the Hon. ITAT, Ahmedabad. Respectfully following that decision, the claim of deduction u/s. 80IA of Rs.14,81,35639/- is denied. Captive Power Plant As regards the Captive Power Plant's claim for deduction u/s. 80IA, the material fact of claim and the deduction allowed are as per the detailed reasoning given in the order for A.Y. 2005-06. The material part of the computation for deduction for this year is as under :- Credit for internal consumption -Steam generation 2,58,14 @ 564.903/te 14,58,28,557/- - Electricity 2,35,33,028 @ 5.835/Unit 13,73,05,315/- 28,31,33,872/- Less: Actual cost of generation of steam Electricity 18,14,19,979/- GAIN/LOSS as per books before depn lease rent : 10,17,13,893/- The Ld. A.O. has calculated the gain at 35.70%. The same seemed inordinately high and the A.O given the reasonable opportunity of being heard on this issue which was responded by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/- 6,57,79,416/- (b) Reducing the profit re-computed at 74.08% to 35.70% Electricity as claimed 23533028 X 5.835 13,73,05,315/- Profit @ 33.94% 4,90,13,275/- The Ld. A.O. restricted the deduction under subsection (8) of section 80IA for Captive Power Plant at Rs.6,57,79,416/-. Co-generation Plant As regards the Co-generation Plant, the Ld. A.O. had also applied the same methodology adopted for Captive Power Plant on the basis of findings given in A.Y. 2005-06. The material part of the computation of deduction is as under :- Credit for internal consumption - Steam generation 10050 @ 564.9/te 53,09,608 Electricity 16380000 @ 5.594/Unit 9,16,29,720 9,69,39,328 Less: Actual cost of generation of steam Electricity 7,65,70,793 GAIN/LOSS as per books before depn: 2,03,68,535 Thus, the gain arises at 17.20%. On the same rationale as in case of Captive Power Plant discussed above, it is seen that the entire profit arises from the credit for electricity which was 22.23% as per the Auditor's Certificate. Considering the assessee's own computation as per the Auditor's Certificate, the deduction u/s. 80IA was computed by the Ld. A.O. as under :- Particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Page No-58 at Para-17 that the Hon. ITAT vide order dated 16.05.2008 for A.Y. 2001-02 in assessee's own case in ITA No.3528/A/2004 held that " in respect of New Power Plant, the same was merely an expansion of the existing undertaking. According to the Tribunal, there was an existing unit wherein a new deadline was added and such a unit could not be regarded to be as an establishment of a new undertaking for qualifying the deduction u/s. 80IA of the Act." But this order of the Hon. ITAT had been recalled in M.A. No.324/Ahd/2008 order dated 11.05.2012 by considering the Hon. Gujarat High Court decision in case of Gujarat Alkalies Chemicals 249 ITR 82 (Guj.). Therefore, the Hon. ITAT "D" Bench had also set aside the entire issue back to the stage of A.O. to be decided de novo in the light of the verdict of the High Court. As entire grounds of appeal revolving around deduction u/s. 80IA and matter had been sent back to the A.O. in A.Y.2006-07, the identical issue is involved in the year under consideration, therefore, we are restoring back this entire issue to the Ld. A.O. for de novo. This ground is allowed for statistical purpose only. 6. Ground No.2 is against confirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction u/s.80IA of Rs.20,44,35,651/-. The assessee had incurred expenditure relating to the prior period to the tune of Rs.1,18,06,240/-. The assessee also had shown the prior period income at Rs.2,52,37,240/- . The Ld. A.O. has observed that no evidences of prior period expenditure had been submitted by the assessee during the course of assessment proceedings for the crystallization of expenditure during the year. Thus, he made addition of Rs.1,81,06,240/-. The Ld. CIT(Appeal) had directed the Ld. A.O. to follow the Hon. ITAT order for A.Y. 2006-07. Now, the revenue is before us. The Ld. CIT DR submitted that this issue is identical with prior period expenditure claimed in A.Y. 2006-07 which has been set aside by the Hon. ITAT. Similarly, the Ld. A.O made the addition u/s. 14A of the Act at Rs. 3,25,92,000/- by following the Co-ordinate Bench decision in case of Daga Capital Management Pvt. Ltd vide ITA No.805/Mum/2003 for A.Y. 2001-02 SB, decision of Hon. ITAT and Hon. Bombay High Court in case of M/s. Godrej Boyce Manufacturing Ltd. And also SB decision of ITAT Delhi bench in case of Cheminvest Ltd. The Ld. A.O. calculated the disallowance on the basis of Rule-8D. The Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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