9911796707
TMI Blog2024 (3) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as the Revenue) by filing aforesaid cross appeals sought to set aside the impugned orders dated 18.10.2018, 27.02.2017, 01.09.2017, 01.09.2017 & 13.12.2018 passed by Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] qua the assessment year 2008-09, 2012-13, 2013-14, 2014-15 & 2015-16 respectively on the grounds inter-alia that :- Grounds of Assessee ITA No.521/M/2019 (A.Y. 2008-09) "1. That in view of the facts and circumstances of the case the Assessing Officer has erred in law and on facts in assessing the income of the Assessee at Rs. 14,52,17,933/- as against Nil as per return filed by Assessee. 2. That CIT(A)/Assessing Officer has failed to appreciate that interest of Rs. 18,45,46,518/- is earned on fixed deposits invested for short period of time and have not been made out of the surplus funds and it has been verified by the AO but he made an error in restricting the amount to Rs. 3,93,27,585/-. 3. That in view of the facts and circumstances of the case the AO/CIT(A) has erred on facts and in law in restricting the treatment as business income to Rs. 3,93,27,585/- as against correct amount of Rs. Rs. 18,45,46,518/- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 1241 of MRTP Act, 1966. 5. That the addition/disallowance made are illegal, unjust and bad in law and are based on mere surmises and conjunctures and the same cannot be justified by any material on record hence the entire addition should be deleted. That the additions/disallowances made are also highly excessive. 6. That the evidence filed and materials available on record have not been properly construed and judiciously interpreted, hence the addition/ disallowance made is uncalled for. 7. The Appellant craves leave to add, to alter to amend the above Ground of Appeal at the time of hearing." ITA No.522/M/2019 (A.Y. 2015-16) "1. The CIT (A) has erred in upholding the addition of Rs. collected towards Rs. 3,48,60,686/- development charges from various lessees / unit holders in MIHAN area at Nagpur on the ground that the receipt is a revenue receipt. 2. That in view of the facts and in the circumstances of the case, CIT (A) has erred in not appreciating that the Grant in Aid given by state government is for specific purpose and same has been spent for that specific purpose. 3. That CIT (A) has erred in upholding the addition of Rs. 22,69,605/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant prays that for this and other reasons it is submitted that the order of the CIT(A) on the grounds be set aside and that of the Assessing Officer be restored. 4. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary." ITA No.3704/M/2017 (A.Y 2012-13) ""1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in holding the income of 0.3, 9 ,28,138/ being Interest on Advance given to Developers as 'Income from Business' eligible for deduction u/s. 80IAB of the I.T.Act, 1961 instead of 'Income from Other Sources' as held by the Assessing Officer without appreciating the fact that the said income does not have any nexus with the business of the assessee. 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in holding the income of Rs. 1,62,44,191/- being Interest on Advance given to Contractors as 'Income from Business' eligible for deduction u/s. 80IAB of the I.T.Act. 1961 instead of 'Income from Other Sources' as held by the Assessing Officer without appreciating the fact that the said income does not have any nexus with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble ITAT, Mumbai in the case of M/s. Viraj Profiles Ltd. in ITA No.4439/Mum/2013 dated 21/10/2015 46 ITR(T) 626 (Mumbai - Trib.)/[2016] and in Ferani Hotels Pvt. Ltd. in ITA No.857/Mum/2013 dated 17/11/2014. 8. The appellant prays that the order of CIT(A) on the above ground be set aside and that of the Assessing Officer be restored. 9. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." ITA No.7258/M/2017 (A.Y. 2013-14) "1a. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was right in restoring the issue to the file of the AO with direction to ascertain whether FDs are made out of the surplus funds or out of the borrowed funds of the assessee and ignoring the decision of the Hon'ble Allahabad High Court in the case Triveni Engineering Works Ltd. v/s. CIT (1987), 167 ITR 742 and CIT v/s. H. R. Sugar Factory Pvt. Ltd., 187 ITR 363, in which, the Hon'ble Allahabad High Court had observed that the interest paid on the borrowed capital can be allowed only when loans were utilized in the accounting year for the assessee's own business and part of interest which was related to non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the fact that section 14A provides for disallowance of expenditure incurred in relation to and not incurred for earning such exempt income which was later clarified in the CBDT Circular No.5 of 2014 dated 11/2 / 2014 laying down the condition that it is not necessary that exempt income should necessarily be included in a particular year's income for the disallowance u/s. 14A of the I.T. Act, 1961 to be triggered? 7. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the disallowance u/s. 14A to the book profit u/s. 115JB of the I.T. Act, 1961 ignoring the decisions of the Hon'ble ITAT, Mumbai in the case of M/s. Viraj Profiles Ltd. in ITA 4439/Mum/2013 dated 21/10/2015 - 46TR(T) 626 (Mumbai - Trib. )/ [2016] and in Ferani Hotels Pvt. Ltd. in ITA No.857/Mum/2013 dated 17/11/2014 ? 8. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the addition of Rs. 236,75,00,000/- being Grant-In-Aid received towards land acquisition/ rehabilitation of Project Affected Persons of MIHAN & other projects holding the same as Capital-in-Nature without appreciating the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Act, 1961 on interest on Fixed Deposits relying on its own decision in the case of the assessee for A.Yrs. 2011-12 & 2012-13 without appreciating the fact that for the year under consideration, the assessee had neither claimed any deduction u/s. 80IAB of the I.T.Act, 1961 and nor filed the Form No.10CCB claiming such deduction while filing the return of income. 3a Whether on the facts and in the circumstances of the case the Hon. Income Tax Appellate Tribunal was right in holding that the interest of Rs. 2,13,16,880/- received by the assessee from Developers, on advances, was business income and deduction u/s. 80IAB was allowable on the same as per provisions of the I.T.Act, 1961? 3b Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was right in directing the AO to allow deduction u/s. 80IAB of the I.T.Act, 1961 on interest on advances to Developers relying on the decision in the case of the assessee for A.Y. 2008- 09 without appreciating the fact that for the year under consideration, the assessee had neither claimed any deduction u/s. 80IAB of the I.T.Act, 1961 and nor filed the Form No.10CCB claiming such deduction while filing the return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earning such exempt income which was later clarified in the CBDT Circular No.5 of 2014 dated 11/2 / 2014 laying down the condition that it is not necessary that exempt income should necessarily be included in a particular year's income for the disallowance u/s. 14A of the I.T.Act, 1961 to be triggered. 8. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the disallowance u/s. 14A to the book profit u/s. 115JB of the I.T.Act, 1961 ignoring the decisions of the Hon'ble ITAT, Mumbai in the case of M/s Viraj Profiles Ltd. in ITA 4439 / Mum / 2013 dated 21/10 / 2015 - 46 ITR(T) 626 [Mumbai- Trib.)/ [2016] and in Ferani Hotels Pvt. Ltd. in ITA No.857 / Mum / 2013 dated 17/11 / 2014. 9. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 281,26,79,648/- being Grant-In-Aid received towards land acquisition/ rehabilitation of Project Affected Persons of MIHAN & other projects holding the same as Capital-in-Nature without appreciating the fact that the assessee is a Developer and the land acquired/ developed with the grants in question are part of inventory/work-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee for A.Yrs. 2011-12 without appreciating that for the year under consideration, the assessee had neither claimed any deduction u/s. * 0.8IAB of the I.T.Act, 1961 and nor filed the Form No.10CCB claiming such deduction while filing the return of income? 4. Whether on the facts and in the circumstances of the case the Ld.CIT(A) was right in holding that the interest of Rs. 2,13,94,828/- received by the assessee from Developers, on advances, was business income and deduction u/s. 80IAB was allowable on the same as per provisions of the I.T.Act, 1961? 5. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) was right in directing the AO to allow deduction u/s. 80IAB of the 1.T.Act, 1961 on interest on advances to Developers relying on the decision in the case of the assessee for A.Y. 2008-09 without appreciating that for the year under consideration, the assessee had neither claimed any deduction u/s. 80IAB of the I.T.Act, 1961 and nor filed the Form No.10CCB claiming such deduction while filing the return of income? 6. Whether on the facts and in the circumstances of the case the Ld.CIT(A) was right in holding that the interest of Rs. 15,05,366/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t section 14A provides for disallowance of expenditure incurred in relation to and not incurred for earning such exempt income which was later clarified in the CBDT Circular No.5 of 2014 dated 11/02/2014 laying down the condition that it is not necessary that exempt income should necessarily be included in a particular year's income for the disallowance u/s. 14A of the I.T.Act, 1961 to be triggered? 12.Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the disallowance u/s. 14A to the book profit u/s. 115JB of the I.T.Act, 1961 ignoring the decisions of the Hon'ble ITAT, Mumbai in the case of M / s Viraj Profiles Ltd. in ITA No.4439/Mum/2013 dated 21/10 / 2015 - 4 ITR(T) 626 (Mumbai - Trib.)/[2016] and in Ferani Hotels Pvt. Ltd. in ITA No..857 / Mum / 2013 dated 17/11 / 2014. 13. Whether on the facts and circumstances of the case and in law, the Ld. CIT (A has erred in deleting the addition of Rs. 174, 30 ,00,000/. being Grant-In-Aid received towards land acquisition/ rehabilitation of Project Affected Persons of MIHAN & other projects holding the same as Capital-in-nature without appreciating that the assessee is a Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudice, in view of the facts and circumstances of the case, the AO/CIT (A) has erred on facts and in law, in not appreciating that the grant received during the year from the state government is capital receipt, not liable to tax, as the assessee is a state by itself or a surrogate of the state or an agent, performing the functions of the state and/or on behalf of the state of Maharashtra" On the grounds inter-alia that although the assessee has not filed appeal against the order passed by the Ld. CIT(A) allowing the ground of the assessee that addition of grant-in-aid received by the assessee company from state government towards repair and maintenance of airports, which is without prejudice to the findings given by the Ld. CIT(A) while allowing the grounds of the assessee by treating the grant-in-aid received from the state government towards land acquisition etc. as capital receipt and not taxable, nor filed any cross objections against the departmental appeals; that the assessee company is entitled to raise the legal grounds under rule 11 while supporting the findings already returned by the Ld. CIT(A) in favour of the assessee on this ground that Hon'ble Supreme Court in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilitate the execution of work entrusted to them. Declining the contentions raised by the assessee the AO considered the interest received on advances to the developer/contractors under the head "income from other sources" and proceeded to hold that the said income does not have nexus with the business of the assessee, hence not eligible for deduction under section 80IAB. 9. However, the Ld. CIT(A) by following the order passed by the Tribunal in assessee's own case for A.Y. 2008-09 proceeded to hold that "the interest received on advances given to the contractors should be considered as income from business and as such eligible for deduction under section 80IAB. 10. We have perused the order passed by the co-ordinate Bench of the Tribunal in assessee's own case for A.Y. 2008-09 in ITA No.1223/M/2013 which is on the identical facts having been decided in favour of the assessee by returning following findings: "6. We have carefully perused the orders of the authorities below and also perused the relevant material brought on record before us. The only issue to be decided is whether the FDs was made out of surplus funds of the assessee or out of the borrowings/advances received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Ground Nos.4, 5, 6 & 7 of ITA No.798/M/2019 for A.Y. 2015-16 are hereby dismissed. Ground No.3 of ITA No.3704/M/2017 for A.Y. 2012-13 (Revenue's appeal) 12. The assessee company has received an amount of Rs. 1,25,95,074/- as lease rent and claimed the same for deduction under section 80IAB of the Act, which is disallowed by the AO on the ground that the said income does not have any nexus with the business of the assessee. However, the Ld. CIT(A) overturned the findings returned by the AO holding that lease rent income received by the assessee is an income from business and eligible for deduction under section 80IAB of the Act by returning following findings: "5.7.1 This ground relates to treating Lease Rental, Lease Premium and Rental Income received from Central Facility Building of the appellant aggregating to Rs. 1,25,95,074/- as income not derived from development of SEZ. Similar issue was decided by me in appellant's appeal for AY 2011-12 in Appeal no. CIT(A)-8/IT-186/14- 15 with the following observations: "It is the most essential business activity of the appellant to operate the SEZ and derive income from leasing out parts of it to eligible persons for eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2017 with GA 413 of 2017 in which the grant has been treated has capital receipt. The similar view has been taken by the Delhi High Court in case titled as CIT Vs. Handicrafts and Handlooms Exports Corporation of India Limited cited as (2014)360 ITR 130 (Delhi). The instant case also Maharashtra Government release the grant in favour of assessee for the repairs and maintenance of airports . It is if any capital in nature and is not liable to be considered as revenue in nature. Taking into account all the facts and circumstances and by relying upon the above mentioned law, we are of the view that the grant in sum of Rs. 1 crores released by Government of Maharashtra on account of repairs and maintenance of airports is not liable to be treated as income of the assessee being in the nature of capital receipt." 15. So following the order passed by the co-ordinate Bench of the Tribunal ground Nos.1 & 3 of assessee's appeal for A.Y. 2012- 13 are decided in favour of the assessee. Ground Nos.5, 6 & 7 raised by the assessee in ITA No.3682/M/2017 for A.Y. 2012-13 (Assessee's appeal) 16. Ground Nos.5, 6 & 7 of A.Y. 2012-13 of assessee's appeal are general in nature, hence the same are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature contended inter-alia that since the grant-in-aid held by the assessee company for payment of compensation towards purchase of land to the land owner, rehabilitation of the PAP and for infrastructure development of airports in the notified area the same is not income of the assessee company; that the assessee company being a state is executing the work of development of airports, repair and maintenance of airports as an arm of the state and relied upon the decision rendered by the Hon'ble Bombay High Court in case of Percival Joseph Pareira vs. The Special Land Acquisition (Writ Petition No.1211 of 2009) and the decision rendered by the Tribunal in assessee's own case for A.Y. 2010-11 in ITA No.3072/M/2014. 22. In order to decide the issue in controversy we would decide if the assessee company is a state while executing the work of development of airports, repair and maintenance of airports as an arm of the state. 23. Undisputedly the assessee company was incorporated as a company under the Companies Act, 1956 by the Government of Maharashtra as a special purpose company to develop multi model international hub airport at Nagpur and aviation infrastructure in the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee company is required to submit the timely reports/returns etc. to the state government from time to time as required under section 155 of the MRTP Act. vi) that under section 160 of the MRTP Act a state government can dissolve the special planning authorities and upon dissolution its properties, the liabilities, undischarge functions shall get transferred to the state government. vii) that as per sub-section 3A of section 113 of MRTP Act any corporation/company or subsidiary company which is into the work of developing and disposing of land in the area of a new town is an agent of the state government. Sub section 3A of section 113 of the Act reads as under: "(3A) Having regard to the complexity and magnitude of the work involved in developing any area as a site for the new town, the time required for setting up new machinery for undertaking and completing such work of development, and the comparative speed with which such work can be undertaken and completed in the public interest, if the work is done through the agency of a corporation including a company owned or controlled by the State or a subsidiary company thereof, set up with the object of developing an area as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilitation of the project affected persons (POP), for infrastructure development of airports in the notified area as an agent of the state. The assessee company carries out all the activities for and on behalf of the state government and after development and completion of the project the entire property vests in the state government. The entire control over the assessee company is of state government being exercised through the officer of the state government. In these circumstances the assessee company is an agent of the state not assessable to tax. As such grant-in-aid received by the assessee company from the Government of Maharashtra for land acquisition, development of airports, repair and maintenance of airports etc. is not a capital receipt as has been held by the Ld. CIT(A) rather the assessee company has performed these functions as an agent of the state and as such not assessable to income tax. xii) that the assessee company has been formulated with a specific purpose i.e. to acquire the land for development of airports, repair and maintenance of airports etc. for which it receives grant-in-aid from the state of Maharashtra which is not taxable under Income Tax Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 124J of Maharashtra Regional Town Planning (MRTP) Act, 1966. The Ld. CIT(A) by passing impugned order held the receipt on account of development charges as business receipt and liable to be taxed by returning following (of A.Y. 2012-13) findings: "5.9.9 Now coming to amount of Rs. 4,38,97,624/- shown at Sr. No. c) in the table above, as stated, these are development charges levied by the appellant u/s. 124J of Maharashtra Regional and Town Planning Act. It is noted that once again this amount has not been given in the form of a grant for capital outlay by Government of Maharashtra. One of the stated business objectives of the appellant is to develop and maintain townships schemes, industrial parks etc., and any earning from engaging in such activity is relatable to business and, therefore, is business receipt. The fact that MRTPA empowers the appellant company to levy charges at prescribed rates from users of infrastructure facilities in its jurisdiction does not change the nature of such receipt. These charges are similar to lease rentals/usage charges that owner of any infrastructure would collect from its clients. Even the fact that charges collected should be used o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 2015-16 respectively are hereby allowed. Ground Nos.5, 6 & 7 of ITA No.3704/M/2017 for A.Y. 2012-13 of Revenue's appeal; Ground Nos.5 & 6 of ITA No.7258/M/2017 for A.Y. 2013-14 of Revenue's appeal; Ground Nos.6 & 7 of ITA No.7259/M/2017 for A.Y. 2014-15 of Revenue's appeal; Ground Nos.10, 11 & 12 of ITA No.798/M/2019 for A.Y. 2015- 16 of Revenue's appeal; 29. Undisputedly facts of all the ground raised qua the years under consideration are identical in which the AO by invoking the provisions contained under section 14A read with rule 8D made additions, which have been deleted by the Ld. CIT(A) on the ground that the AO has mechanically applied the provisions contained under rule 8D without noticing the fact that there is no exempt income and own funds of the assessee are far more than the investment made by the assessee during the years under consideration. 30. It is admitted fact on record that during the years under consideration no exempt income has been earned by the assessee and assessee's own interest free surplus funds are more than the investment made during the years under consideration. Identical issue has already been decided in favour of the assessee in its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the co-ordinate Bench of the Tribunal in assessee's own case for A.Y. 2008-09 in ITA No.1223/M/2013. 34. We have perused the order (supra) passed by the co-ordinate Bench of the Tribunal which is on identical issue. The operative part of the order is extracted for ready perusal as under: "6. We have carefully perused the orders of the authorities below and also perused the relevant material brought on record before us. The only issue to be decided is whether the FDs was made out of surplus funds of the assessee or out of the borrowings/advances received by the assessee and whether the deposits were made for a short period. We find that this issue has not been considered by the lower authorities on the facts of the case. In our considered opinion, this issue needs to be re-adjudicated by the A.O. We accordingly restore this issue to the file of the A.O. The A.O. is directed to verify whether the FDs have been made out of surplus funds or out of loans and borrowing of the assessee and whether the FDs were for short period of time. The assessee is directed to file necessary details before the A.O. The A.O. is expected to give a fair and reasonable opportunity of being heard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature as claimed by the assessee. So ground No.3 in ITA No.522/M/2019 for A.Y. 2015-16 of assessee's appeal is allowed. Ground Nos.5 to 7 in ITA No.522/M/2019 for A.Y. 2015-16 (Assessee's appeal) 38. Ground Nos.5 to 7 are general in nature, hence need no discussion and adjudication in specific. Ground Nos.5 & 10 in ITA No.7259/M/2017 for A.Y. 2014-15 of Revenue's appeal & Ground Nos.8 & 9 of ITA No.798/M/2019 for A.Y. 2015-16 of Revenue's appeal 39. These grounds have become infructuous as the Ld. A.R. for the assessee contended and has also recorded in the synopsis provided to the Bench that the AO has granted deductions claimed by the assessee under section 80IAB post giving effect order passed by the Ld. CIT(A), without filing of form No.10CCB. Consequently aforesaid grounds are dismissed having been become infructuous. Ground Nos.14a, 14b & 14c in ITA No.798/M/2019 for A.Y. 2015-16 of Revenue's appeal 40. The AO made disallowance of Rs. 76,32,135/- and Rs. 3,55,42,101/- pertaining to loss in respect of power distribution and water supply activities respectively. However, the Ld. CIT(A) has deleted the disallowance made by the AO by returning following findings: "3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheduling loss is there. 3.10.7 I find that the appellant has submitted the copy of lease agreement along with other documentary evidence placed on record in support of the claim that the expenditure incurred is a part of revenue model of MIHAN project and has also submitted very detailed explanation in respect of power distribution loss factually as well as logically which has also been discussed by me in the above paras. Determining tariff for the units of electricity is not at the sole discretion of the appellant. Therefore, practically speaking, the selling cost cannot be controlled by the appellant. Further, due to emergency situation, there was no option other than to purchase of electricity at the cost sold by the respective suppliers.Also, the energy loss such as transmission, distribution & scheduling losses cannot be ruled out which will further reduce the revenue from selling electricity. Therefore, I am of the view that addition on account deficit of Rs. 76,32,135/- in respect of power distribution activity has no merits and has to be deleted. 3.10.8 With respect to deficit in water supply activity, the appellant has submitted that the MADC has developed infrastruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Government of Maharashtra one, the credibility of whose accounts are one notch above the private ones. 3.10.9 In view of the above discussion, additions on account of deficit of Rs. 76,32,135/- and Rs. 3,55,42,101/- in respect of Power distribution and Water supply activity respectivelyare deleted. These grounds of appeal are allowed." 41. We have perused the order passed by the Ld. CIT(A) who has duly thrashed the facts in the light of the copy of lease agreement along with other documentary evidence placed on record by the assessee and reached the conclusion that the expenditure incurred by the assessee on providing power distribution and water supply activities is a part of the Revenue model of MIHAN project and has also perused the record and explanation in respect of power distribution loss and water supply activities. The Ld. CIT(A) has also considered the losses due to water evaporation. 42. It is also not in dispute that no company will deliberately decrease its profit. Main cause as brought on record by the assessee has been duly perused by the Ld. CIT(A) for loss on account of distribution of water is underutilization of water supply which led to low sale and it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court of India in case of National Thermal Power Co. Ltd. (1998) 229 ITR 383 (SC) and in the case of Jute Corporation of India Ltd. vs. CIT 187 ITR 688. 45. Bare perusal of the grounds goes to prove that these are purely legal grounds and as per the law laid down by the Hon'ble Supreme Court in case of National Thermal Power Co. Ltd. (supra) and Jute Corporation of India Ltd. (supra) the legal grounds can be raised at any stage of the appellate proceedings and hence the same are allowed. 46. Since the additional grounds raised by the assessee company goes to the root of the case the Bench has decided to dispose of the additional ground No.1 first before going into the grounds raised on merits. 47. It is contended by the Ld. A.R. for the assessee that qua assessment year 2008-09 in the first round of litigation the Tribunal has passed an order dated 27.08.2014 in ITA No.1223/M/2013 for A.Y. 2008-09 whereby issue as to earning interest of Rs. 39327585/- being interest on fixed deposits was ordered to be decided afresh as per findings given as under: "6. We have carefully perused the orders of the authorities below and also perused the relevant material brought on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or section 264 is to be given by the Assessing Officer [or the Transfer Pricing Officer, as the case may be,] wholly or partly, otherwise than by making a fresh assessment or reassessment [or fresh order under section 92CA, as the case may be,], such effect shall be given within a period of three months from the end of the month in which order under section 250 or section 254 or section 260 or section 262 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, the order under section 263 or section 264 is passed by the [Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be]" 50. In all eventualities the AO is required to pass the order within a period of nine months/three months as the case may be which the AO has failed to pass. Even it is not the case of the Revenue that their case falls under proviso 1 & 2 to section 153(5) of the Act nor any explanation has been brought on record. When the AO was required to pass the order giving effect to the order passed by the Tribunal within a period of three months from the end of the month in which orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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