TMI Blog2021 (3) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... per agreed terms of such contract. If there is any dispute by ether party the accrual of income (of expenditure in the hands of other party) will be subject to the outcome of such dispute accordingly contingent. Normally the income in such cases can be said to accrue in the year in which the dispute is resolved other party acknowledges the debt. Even in such cases some party may choose to recognize its income or liability as accrued accordingly to facts circumstances whereby it is certain to be able to enforce the terms of the contract. However, the appellant did not recognize any revenue from sale of steam in current year according to AS-9, since SSL had categorically refused to make any payment for supply of steam. Therefore, non-recognition of any accrual of income from supply of steam does not appear to be, unjustified. As the income of one company will be a deductible expenditure for the other and between the two there is no tax gain from this transaction. The income in the case of appellant is eligible to 100% deduction u/ s80 lA also. Hence no allegation of tax planning can be attributed in this transaction, which appears to be wholly for business considerations. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,55,10,901 /- u/s 115 JB of the Act, filed on 30.10. 2007 by the assessee, generating power, after being processed on 06.10.2008 u/ s 143(1) of the Act, was selected for scrutiny with the service of a notice issued u/s 143(2) of the Act on 15.09.2008. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee had shown production of 2,89,240 tonne of steam, which was supplied to SBEC Sugar Ltd. [SSL in short] free of cost instead of @ ₹ 236 per tonne and ₹ 75 per tonne, in earlier years. To a query by the AO as to why no income on account of sale of steam to SBEC Sugar Ltd. was shown and why rate of steam sold to SSL be not taken at ₹ 236 per tonne as in earlier years, the assessee replied vide letter dated 14.12.2009 that the assessee received a communication from SSL, informing their decision not to pay for any exhaust steam under the conversion agreement since October, 2001. It was further pointed out that SSL supplied baggase and water free of charge to the assessee beside steam condensate. In these circumstances, no adjustment on account of supply of steam by the assessee was necessary, it was pleaded. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate of ₹ 236 per ton claimed income from the appellant in the same was as in earlier years. In response to show cause notice the appellant made written submissions by letter dated 3 /2 / 06 and thereafter by letter dated 13/ 3/06. The contents of letter dated 13/3/06 have been reproduced by the AO on page 4 of the assessment order. Since the said letter gives gist of history of this issue but same is reproduced in this order also even at the cost of repetition: i. Receipts from steam during A Y 2000-01 were recognized in the books @ ₹ 236 per ton. However, due to revision of rates, in A Y 01-02 a reversal entry was passed in the books reducing the receipts excess accounted for in A Y 2000-01. ii. In the assessment proceedings for A Y 2000-01 the assessee company claimed that the receipts be reduced by ₹ 3,82,59,074/- since the rate of steam with retrospective effect had been revised to ₹ 75 per ton. iii. The AO has rejected this claim of the assessee company by observing in the order passed u/ s 143(3) dated 28/02 /03 for A Y 2000-01 that the effect for what has happened in the next assessment year would be seen next year during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 per tone is unjustified and against the principles laid down by the Supreme Court and various High Courts including the territorial judicial High court. 2.2 As can be seen the appellant agreed that in the earlier years steam was sold @ ₹ 236 per ton and that rate was retrospectively changed to ₹ 75 per ton. However with effect from Oct. 2001 SSL has refused to make any payment towards supply of steam. Since there was uncertainty about realization of any sale price of supply of steam the appellant did not recognize the value following the Accounting Standard 9 as notified u/ s 145(2) of the Income Tax Act. Since there was no right to receive any amount for supply of steam and neither was any amount actually received there cannot be any income from sale of steam. It was contended that only the real income can be taxed under IT provision. The AO did not accept the explanation submitted by the appellant on the ground that the steam definitely has a value and the appellant was recognizing the receipts from sale of steam in earlier years. He mentioned that the rates regarding supply to SSL were never finalized as the conversion contract was subject to approval by PICU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.4 The fixed fee of ₹ 19.75 million per month included 50% of income received from sale of surplus electricity to UPSEB. Therefore, it was provided in clause 7.11 that 50% of such realization from UPSEB would be returned to SSL. As per Article 18 of the Conversion Contract the said agreement was to be approved by PICUP who had given loan of ₹ 8 crores to SSL. PICUP strongly objected to payment terms as per Conversion Contract and did not give its approval. In view of PICUP's objection re- negotiation of the payment terms were proposed between the appellant SSL. Pending the negotiations, interim arrangement dated 26 /8 /99 for payment was agreed to. According to this, ₹ 236 per ton was to be paid for steam and supply to SSL. For electrical energy the same rate as for UPSEB was to be charged by appellant from SSL. For some period the appellant raised the bills and SSL made payment for supply of steam as per this arrangement. However even this arrangement was objected to by PICUP on the ground that accepted rate of return justified in power industry was 16 % of capital employed as against 21% adopted for making the interim arrangement. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. The main contention was that only real income can be taxed under IT Act. Notional income on estimated basis cannot be brought to tax. In support of this legal contention also the appellant relied on a few judicial decisions. Therefore according to appellant the income estimated by AO from supply of steam to SSL and at the rate of 236 per ton was highly unjustified and against the judicial principles. Without prejudice, it was also stated that the AO has not given justification for adopting the rate of steam at the rate of 236 per metric ton when only ₹ 75 was chargeable by the appellant as per the revised interim arrangements made with SSL. It was mentioned by the appellant that the addition made in earlier years when the rate of steam was reduced from ₹ 236 per metric ton to ₹ 75 per metric ton was deleted by ITAT in A Y 00-01 whose order has been followed by the ClT (A) in A Y 01- 02 order dated 26/7 /04 and 99-00 order dated 4/1/06. 2.7 Subsequently by letter dated 5/9/06 the appellant further submitted that bagasse supplied by SSL to the appellant was a marketable commodity which could be sold @ around ₹ 500 per ton. If the market value of baga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly contingent. Normally the income in such cases can be said to accrue in the year in which the dispute is resolved other party acknowledges the debt. Even in such cases some party may choose to recognize its income or liability as accrued accordingly to facts circumstances whereby it is certain to be able to enforce the terms of the contract. However, the appellant did not recognize any revenue from sale of steam in current year according to AS-9, since SSL had categorically refused to make any payment for supply of steam. Therefore, non-recognition of any accrual of income from supply of steam does not appear to be, unjustified. 2.9 It may be noted that normally if some buyer refuses to make payment for goods supplied to it; the seller would immediately stop supply of goods. However the appellant did not stop supply of steam to SSL even in the face of clear declaration of not getting any payment for the same. This appears to be unusual unless the appellant being other party to contract also accepted the said proposal finally. Since appellant's stand on contention of SSL was not specified the appellants AR was requested to clarify the stand of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the two there is no tax gain from this transaction. The income in the case of appellant is eligible to 100% deduction u/ s80 lA also. Hence no allegation of tax planning can be attributed in this transaction, which appears to be wholly for business considerations. It may not be out of place to reproduce hereunder a part of letter dated 2 / 11/02 written by SSL to the appellant company. The sugar and power generation project are for all practical purposes two limbs of a single project one cannot survive without the other. In 1994, when the construction of the sugar plant was first taken up, the power generation facility was an integral part of the project and owned by the company itself. Subsequently in 1995 air Liquide offered to invest substantial monies in the power project and for doing so insisted that the power project be transferred to and owned by a separate company, independent from SSL. The ownership of the Plant Machinery then came to be divided. Under this arrangement, the power generating facility was agreed to be transferred to and owned by SI AL SBEC Bioenergy Limited, which was to be the joint venture between the Modi Group and Air Liquide ISIDEC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified on fact and cannot be said to be deliberate or motivated. Moreover even if an assessee gives (sells) his goods free of cost to other, there is no provision in the IT Act to tax its sale value as income on presumptive basis. Legally Speaking since no income has accrued neither any payment has actually been received by the appellant company, making addition in respect of estimated price of steam amounts to taxing of notional income which is not permissible. In view of this addition of ₹ 9,93,41,508/- (₹ 8,49,14,188 /-after rectification) is deleted. 5.1. The above order for the A Y 2004-05 has been followed by the CIT (A) for the A Y 2005-06 and A. Y 2006-07 also. It may be noted that ITAT in AY 01-02 and AY 99 -00 has followed its order for AY 00 -01 where in it has been held that appellant had actually realized sale proceeds of steam @ ₹ 75 per ton and not ₹ 236 /- per ton in the relevant years and accordingly notional income can t be taxed. Further it may be mentioned that the ITAT in AY 2003-04, AY 2004-05 A. Y. 2005-06 and A. Y 2006-07 also has dismissed the appeal of the revenue and has upheld the order of the CIT (A). It is furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes. 4. The Revenue is now in appeal before us against the aforesaid findings of the ld. CIT(A). At the outset, the ld. AR on behalf of the assessee while inviting our attention to the impugned order contended that since the ld. CIT(A) have decided the issues on the basis of orders of the ITAT in the preceding years, no interference is warranted. The ld. DR, on the other hand, did not oppose these submissions of the ld. AR while contending that matter is pending before the Hon ble High Court. 5 We have heard both the parties and gone through the facts of the case. As is apparent from the aforesaid findings of the ld. CIT(A) on each of the three issues, he merely followed the decisions of the ITAT in the preceding assessment years and decided in favour of the assessee. The ld. DR did not place before us any contrary decision nor any other material in order to controvert the findings of the ld. CIT(A) so as to enable us to take a different view in the matter. In these circumstances, we have no alternative but to reject ground nos. 1 to 3 in the appeal. 6. Since, the matter stands squarely covered by order orders of the appellate authorities as well as the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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