TMI Blog2017 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80IA(4) - entitled to claim market value of the eligible unit - rate for computation of such benefit for purchase of electricity - Held that:- Claim allowed as relying on assessee's own case for preceeding AYs held that it is price at which assessee transferred electricity generated by it eligible business to its other business which would be considered for purpose of computation of profits and gains of eligible business in terms of section 80IA( 8) and not lesser price at which surplus electricity was sold to Electricity Board. Profit and gain from captive consumption of electricity supplied only to assessee by power plant of assessee will qualify for deduction under section 80IA.- Decided in favour of assessee. Treatmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount disallowable under section 14A is covered under clause (f) of Explanation to Section 115JB(2)? ( 3) Whether ITAT is right in law and on facts in allowing the assessee's claim of deduction u/s 80IA(4) of the IT Act, 1961, as the rate on which the GEB supplied power to its consumers ignoring the rate on which power generating company supplied its power to GEB and not considering rate other than the selling price charged by the assessee? Alternatively Whether the ITAT was right in law and on facts in not appreciating that deduction u/s 80IA(4) is not allowable to the assessee for generating power for captive consumption? ( 4) Whether on facts and in the circumstances of the case and in law, the ITAT erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat High Court judgments in the case of Hitachi Home and Life. Solutions (1) Ltd (supra), Torrent Power Ltd (supra) and other judgments mentioned above, we are of the view that when the assessee possesses own funds much more than the tax free investments, the disallowance u/s 14A read with Rule 8D cannot be made. There is also merit in the plea of 1d. Counsel on the count that the burden of establishing the nexus has been wrongly attributed to the assessee and it was for the Assessing Officer to rebut the assessee s contention and demonstrate that the tax free investments were not from own funds but from borrowed funds. In the absence of such rebuttal, it cannot be assumed that the assessee made tax free investments out of borrowed funds. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 30.1.2012; Tax Appeal No. 1493 of 2011 Commissioner of Incometax IV v. Shah Alloys Ltd., decided on 25.9.2012 and Tax Appeal No. 2092 of 2010 Commissioner of IncometaxIV v. Shah Alloys Ltd., decided on 22.11.2011. He has further relied on the decision of Calcutta High Court in the case of Commissioner of Incometax, KolkataIV, Kolkata v. Kanoria Chemicals Industries Ltd., reported in (2013) 35 taxmann.com 566 (Calcutta) where the court has held as under: It is price at which assessee transferred electricity generated by it eligible business to its other business which would be considered for purpose of computation of profits and gains of eligible business in terms of section 80IA( 8) and not lesser price at which surplus elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated by its own wind mill that was consumed by assessee. 10.5 Lastly, the learned counsel for the assessee has relied on the decision of Madras High Court in the case of Tamilnadu Petro Products Ltd. v. Assistant Commissioner of Incometax reported in 338 ITR 643 where it is held as under: The revenues contention had no application to the case on hand. Inasmuch the issue was to be dealt with in the light of section 80IA and in particular subclause (iv) of the said section which provides for the benefit even in respect of electricity generation plant established by the assessee and the income derived from such enterprise of the assessee, it would have to be held that the assessee fully complied with the requirements prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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