9911796707
TMI Blog2025 (1) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... no addition whatsoever was warranted to the total income. 3. That in the facts and circumstances of the case, the Ld. AO is not justified in making addition of downward adjustment of Rs. 154,38,00,527/- to the final assessable income instead of re-computing the deduction u/s. 80IA(8) afresh, without appreciating the fact the appellant did not claim any deduction u/s. 80IA in the return of income. 4. That the DRP-1 and the AO / TPO has erred on facts and law by rejecting the internal comparable uncontrolled price (CUP) method adopted for transfer of power from the power unit to the cement unit, and making an adjustment of INR Rs. 114,14,28,568/-. 4a. By erroneously recalculating and re-computing the market value at a rate which is contrary to the provisions of section 80IA(8) and mandates of judicial authorities. 4b. By rejecting the comparable market rate for procurement of power from Paschim Gujarat Vij Company Limited (PGVCL) and determining the Arm's Length Price at Rs. 2.97/- per unit, being the median of the various sale prices charged by the power unit to the independent third parties. 4c. By not appreciating the fact that the sale transaction to outside parties is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprovals from the Ld. Pr. CIT-3, Hyderabad, dated 18/10/2019. Accordingly, notice u/s. 92CA(2) of the Act was issued on 26/11/2019 and subsequent notice / questionnaire was also issued on 29/12/2020. In response, the assessee filed its submissions on 23/10/2020 and 12/12/2020. Thereafter, on 11/01/2021 a detailed show-cause notice was issued to the assessee u/s. 92C(3) of the Act. In reply, the assessee furnished the details as called for vide its letter dated 25/01/2021. On a perusal of the submissions of the assessee and after going through the material available before him, the learned TPO determined the adjustment to be made to the income of the assessee on account of the Specified Domestic Transactions entered into by the assessee at Rs. 154,38,00,527/-. Thus, the Ld. TPO passed the order U/s 92CA(3) of the Act, dated 30/01/2021. Accordingly, giving effect to the Ld. TPO's order, the Ld. AO passed the Draft Order u/s. 143(3) r.w.s 144C of the Act, dated 10/04/2021 and determined the total income of the assessee at Rs. 104,99,80,729/- which includes (i) adjustment towards Specified Domestic Transactions Rs. 154,38,00,527/- and (ii) Disallowance of CSR expenses of Rs. 1,42,97,13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrespective of the fact whether the assessee claims deduction U/s 80IA or not for the year under consideration, the provisions of section 92BA are applicable as the transactions mentioned in the Form 3CEB pertain to eligible business of the assessee. Therefore, the objection of the assessee is not valid. 6.5.3. Taxpayer's objections The net effect of any adjustments made under SDT is NIL, result in tax neutrality as there is no tax arbitrage. The assessee argued that the transactions are entered between two units belonging to the same assessee. Both the units are two arms of the same tax entity and hence the substitution of ALP value (market value) in respect of inter-unit transactions u/s. 92 of the Act is a tax neutral exercise and it also needs to be highlighted that since the company has not claimed any deduction u/s. 80IA, it has no effect even otherwise, after application of the ALP, and the Transfer Pricing adjustment contemplated in section 92 of the Act. 6.5.4. TPO's comments As seen from the above, the assessee is of the opinion that since it has not claimed deduction u/s. 80IA due to loss disclosed under eligible unit, any adjustment made towards specific domes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to adjust/reduce/set-off the losses of previous years of tax holiday period against such profits of eligible business / unit. Accordingly, in case, if the loss disclosed under eligible business / unit in respect of particular assessment year falling under the tax holiday period is enhanced on account of adjustment to specific domestic transactions u/s. 92BA r.w.s 80IA(8) in the subsequent years, before claiming deduction u/s. 80IA, the enhanced loss shall be set-off giving rise to reduction in the quantum of allowable deduction. In view of the above, it is imperative on the part of the TPO to carry out TP study with regard to specific domestic transactions notwithstanding the fact that the assessee has not claimed ay deduction u/s. 80IA due to disclosure of loss under eligible business/unit. Similarly, if the assessing officer makes any additions on account of non-transfer pricing issues which convert the entity level loss into income, then the TP adjustment would be assumed relevance since the assessee may then claim deduction u/s. 80IA. Therefore, the observation of the assessee is not correct." 4. On the basis of the above, it was submitted that the Ld. TPO, while adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties, it is noted that, in view of our findings on merits, this issue has now become of academic interest; but for the sake of completeness of the matter, we proceed to decide this question as well. 31. For the AY 2016-17, the assessee had disclosed Gross Total Income of Rs. 20,68,23,313/- before setting-off of brought forward business losses. After setting off the losses brought forward from the earlier years, the Gross Total Income in terms of Section 80A of the Act was NIL. Accordingly, the assessee could not have claimed any deduction under Part-C of Chapter VI-A of the Act, because as per the provisions of Section 80A(2), the deduction permissible under Chapter VI-A cannot exceed the gross total income, which in the present case was NIL. Hence, when no deduction for Rs. 19,03,49,419/- has been claimed u/s 80-IA(4)(ii) of the Act, then even if, any transfer pricing adjustment is made to the transactions of the eligible unit referred to u/s 80-IA(8)/(10), the same will not have any bearing on the computation of total income, as the revised claim u/s 80-IA of the Act, even after the transfer pricing adjustment, would continue to remain NIL. The manner of computation of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxman 35 (SC). d. This necessitated the introduction of Specified Domestic Transaction ("sun u/s 92BA in Finance Act 2012 by borrowing the transfer pricing regulations to establish arm's length nature of such inter-unit transactions with reference to provisions under Section 80IA(8) or 80IA(10)as applicable for 10AA exempted units or deductions under Chapter VI-A of Income Tax Act, 1961 ("the Act"). e. Explanatory Memorandum to Finance Bill, 2012, reads as under: "The application and extension of scope of transfer pricing regulations to domestic transactions would provide objectivity in determination of income from domestic related party transactions and determination of reasonableness of expenditure between related domestic parties. It will create legally enforceable obligation on ass essees to maintain proper documentation. However, extending the transfer pricing requirements to all domestic transactions w:l! lead to increase in compliance burden on all assessees which may no: be desirable." Hence the intent behind introduction of Transfer pricing provisions for Specified Domestic Transactions is to curb the practice of shifting of profits where there is tax arbitrag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .............. 1.8.1. Reporting of Transactions in 3CEB The TPO at para 6.5.2 justified the applicability of SDT provisions stating that the Assessee company itself has reflected the transactions of eligible unit in form 3CEB. The observations are as under ''The taxpayer reported the specified domestic transactions pertaining to transfer of power and transfer of fly ash in column no. 23 of Form 3CEB. Captive Power Unit of the assessee is an eligible unit for the purpose of Sec. 80IA. Further, as per Sec. 92BA, provisions of specified domestic transactions are applicable to any undertaking or unit or enterprise or eligible business of the assessee (as referred to in Sec. 80A(6), 80IA(8) or Sec. 80(I)4,. The word used is "eligible business". Therefore, irrespective of the fact whether the assessee claims deduction under 80IA or not for the year under consideration, the provisions of Sec. 928A are applicable as the transactions mentioned in the Form 3CEB pertain to eligible business of the assessee. Therefore, the objection of the assessee is not valid." In this regard, it is humbly submitted that the Assessee-company filled the Accountant's report In F01111 3CEB u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction has been defined and provided u/s. 80IA of the Act. Therefore, it was submitted that even if the assessee has not claimed the deduction u/s. 80IA, then also, the provisions of section 92BA can be invoked and the Revenue was within its right in determining the ALP of the energy received as per Rule 10B of income Tx rules. The Ld. DR had also filed the following written submissions in respect of the Revenue's contention that the provisions of section 92BA can be invoked irrespective of the fact that the assessee has claimed deduction u/s. 80IA or not. "a) The assessee's argument that TP provisions are not applicable in this case stem from their reliance on section 80IA(5) and that they have not claimed 80IA deduction in the year. However, applicability of TP provisions and whether ALP adjustment can be done is not with reference to section 80IA(5). ALP adjustment has been done under section 92 treating the transactions of the assesseess as specified domestic transactions. Section 92BA deals with this aspect of what is specified domestic transaction in respect of section 92. In this context, section 92BA(iv) applies which refers to section 80IA(10) as under:- "any bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t interpretation of CUP? Rule 10B(1)(a)(i) reads thus: (a) comparable uncontrolled price method, by which,- (i) the price charged or paid for property transferred or services provided in a comparable uncontrolled transaction, or a number of such transactions, is identified; Emphasis is on comparable uncontrolled transactions or a number of transactions - hence median price for other parties charged by power unit is CUP and the AO was right in applying the same. Para 6.5.7 of the TPO order ( page 9 of TPO order and page 21 of the paper book), the various things included in the Paschim Gujarat V ij company Ltd power price shows that it does not make a proper comparable. CUP is based strict comparability unlike other methods and therefore, the power bought from third party that includes other costs and duties, is not a comparable for purposes of CUP 3) Is reallocation of employee benefit and other expenses correct? Para 8 of the TPO order (page 14 of TPO order and page 26 of the paper-book) - show that segmental accounts not commensurate with the turnover. Reference is invited to Page 126 of the paper book, other expenses - printing, consultancy, audit, postage, vehicle ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h law. Further, it was submitted that the Hon'ble Supreme Court, in the case of Jindal Steel and Power Limited reported in [2023] 157 taxmann.com 207 (SC), had not discussed the scope and applicability of determining the ALP post amendment in the Electricity Act, 2003. The relevant portion of the said order reads as under : "32. Revenue has relied upon the decision of the Calcutta High Court in ITC Ltd. (supra). In that case, the High Court rejected the first contention of the revenue that the assessee therein was not entitled to the benefit under section 80-IA of the Act because the power generated was consumed at home or by other business of the assessee. After holding so, the High Court however, answered the question on the point of computation of profits and gains of the eligible business against the assessee. On going through the judgment, we find that facts of that case are clearly distinguishable from the facts of the present batch of appeals. It is noticeable that though an opportunity was granted by the assessing officer to the assessee to adduce evidence to justify the price of electricity sold by it to its paper unit, the same could not be availed of by the assessee. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Study, it is mentioned that the power generation unit is an eligible unit under section 80IA, and transactions between the e!igible and non-eligible units are considered as specified domestic transactions. "I. Sale of power by eligible unit to non-eligible units: 4. During the year under consideration, eligible unit has received an amount of Rs. 184,74,66,856 from non-eligible unit for transfer of power at the rate of Rs. 7.85/unit. (23,53,46,096 units * 7.85 = 184,74,66,857/-). 5. For the purpose of benchmarking the above transaction, the assessee has selected CUP as MAM and considered the tariff rate per unit rate charged by Gujarat State Electricity Board. Order of the TPO: 6. During the course of TP proceedings, the TPO has found that no proper basis has been provided in arriving at rate of Rs. 7.85/-unit for transfer of power. Further, it is pointed out that rate per unit includes various additional charges such as demand charges, energy charges, peak hour charges, electricity duty which are applicable to general customers who purchases the power from electricity board through the grid. However, above mentioned charges are not applicable to the assessee. 7. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ld. AR, in rebuttal, had submitted that the assessee has not taken the notional value of Rs. 7.85/- per unit as mentioned in para 6.3 of the Ld. TPO's order. However, to the contrary, the assessee has only taken the actual value at which the electricity was supplied by the assessee to the other 14 companies. 14. We have heard the rival submissions and perused the material available on record. Section 92BA of the Act provides as under: "Meaning of specified domestic transaction. 92BA. For the purposes of this section and sections 92, 92C, 92D and 92E, "specified domestic transaction" in case of an assessee means any of the following transactions, not being an international transaction, namely:- (i) [***] (ii) any transaction referred to in section 80A; (iii) any transfer of goods or services referred to in sub-section (8) of section 80-IA; (iv) any business transacted between the assessee and other person as referred to in sub-section (10) of section 80-IA; (v) any transaction, referred to in any other section under Chapter VI-A or section 10AA, to which provisions of sub-section (8) or sub-section (10) of section 80-IA are applicable; or (va) any business tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business for the first five assessment years commencing at any time during the periods as specified in sub-section (2) and thereafter, thirty per cent of such profits and gains for further five assessment years. (3) This section applies to an undertaking referred to in clause (ii) or clause (iv) of sub-section (4) which fulfils all the following conditions, namely :- (i) it is not formed by splitting up, or the reconstruction, of a business already in existence : Provided that this condition shall not apply in respect of an undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section; (ii) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose: Provided that nothing contained in this sub-section shall apply in the case of transfer, either in whole or in part, of machinery or plant previously used by a State Electricity Board referred to in clause (7) of section 2 of the Electricity Act, 2003 (36 of 2003), whether or not such transfer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to which this clause applies and the deduction from profits and gains would be available to such transferee enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place: Provided further that nothing contained in this section shall apply to any enterprise which starts the development or operation and maintenance of the infrastructure facility on or after the 1st day of April, 2017. Explanation.-For the purposes of this clause, "infrastructure facility" means- (a) a road including toll road, a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project; (c) a water supply project, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st day of April, 1999 and ending on the 31st day of March, 2017: Provided that the deduction under this section to an undertaking under sub-clause (b) shall be allowed only in relation to the profits derived from laying of such network of new lines for transmission or distribution; (c) undertakes substantial renovation and modernisation of the existing network of transmission or distribution lines at any time during the period beginning on the 1st day of April, 2004 and ending on the 31st day of March, 2017. Explanation.-For the purposes of this sub-clause, "substantial renovation and modernisation" means an increase in the plant and machinery in the network of transmission or distribution lines by at least fifty per cent of the book value of such plant and machinery as on the 1st day of April, 2004; (v) an undertaking owned by an Indian company and set up for reconstruction or revival of a power generating plant, if- (a) such Indian company is formed before the 30th day of November, 2005 with majority equity participation by public sector companies for the purposes of enforcing the security interest of the lenders to the company owning the power generating plant and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, in computing the profits and gains of such eligible business for the purposes of the deduction under this section, take the amount of profits as may be reasonably deemed to have been derived therefrom: Provided that in case the aforesaid arrangement involves a specified domestic transaction referred to in section 92BA, the amount of profits from such transaction shall be determined having regard to arm's length price as defined in clause (ii) of section 92F. (11) The Central Government may, after making such inquiry as it may think fit, direct, by notification in the Official Gazette, that the exemption conferred by this section shall not apply to any class of industrial undertaking or enterprise with effect from such date as it may specify in the notification. (12) Where any undertaking of an Indian company which is entitled to the deduction under this section is transferred, before the expiry of the period specified in this section, to another Indian company in a scheme of amalgamation or demerger- (a) no deduction shall be admissible under this section to the amalgamating or the demerged company for the previous year in which the amalgamation or the demerger t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , had been made at the market value of such goods or services as on that date : 17. Section 80IA (8) refers to the transfer of any goods or services of the eligible business carried out by the assessee to any other business carried out by it. Similarly, section 80IA(10) reads as under : Where it appears to the Assessing Officer that, owing to the close connection between the assessee carrying on the eligible business to which this section applies and any other person, or for any other reason, the course of business between them is so arranged that the business transacted between them produces to the assessee more than the ordinary profits which might be expected to arise in such eligible business, the Assessing Officer shall, in computing the profits and gains of such eligible business for the purposes of the deduction under this section, take the amount of profits as may be reasonably deemed to have been derived therefrom: 18. Section 80IA (8) refers to the assessee carrying on the eligible business with the other person with whom the assessee has a close connection, and the business is so arranged so as to produce more than an ordinary profit which might have expected to aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent upon seeking the direction under Section 80IA by the assessee. Both provisions operate in different fields and were inserted for different reasons. 22. In view of the above, the argument of the assessee that the assessee has not claimed deduction u/s. 80IA, therefore, the provisions of section 92BA are not attracted, are devoid of any merit and the objection is dismissed. We concur with the view of the Ld. DRP on this aspect is given in para 2.1.3 to 2.1.7 of the impugned order. Arm's Length Price: The Ld. TPO in para-5 of the order has noted out the Specified Domestic Transaction reported by the assessee in Form-3CEB / TP document. As per the said document, the assessee has chosen the comparable uncontrolled price (CUP Method) as the most appropriate method to benchmark the transaction pertaining to the sale of power by power generating unit (eligible for deduction u/s. 80IA of the Act) to cement manufacturing unit and other unit of SIL (the assessee).The assessee has adopted the rate of tariff as per the Gujarat State Electricity Board (GSEB) as CUP and accordingly mentioned the realizable market value of the power for captive consumption. The assessee had arrived at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the written submissions filed before us. 25. Per contra, the ld.DR had filed the written submissions and submitted that the Electricity Act 2003 provides the mechanism for determining the electricity tariff by the Electricity Regulatory Commission. For that, it was submitted that once the assessee does not dispute the CUP method, and the internal comparables are available, then the power per unit rate at which the Electricity was supplied to 14 users by the power generating unit of the assessee would be the appropriate comparable. It was submitted that the rate at which electricity is being provided by the state utility cannot be compared with the rate at which the capital generator power supply is supplying the electricity to itself. 26. We have heard the rival submissions of the parties and perused the material available on record. Admittedly, the assessee himself had benchmarked the specified domestic transaction by taking the CUP as Most Appropriate Method for determining the ALP. For the above said purposes, the assessee has taken the State Distribution Company (GSEB) as comparable for benchmarking the transaction in terms of clause (ii) of Explanation to Section 80IA(8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has not sold the electricity in the open market either to the State Utility or the Electricity Power Exchange or to any other person through the open access as per Section 42 of the Electricity Act. Quiet contrary to this, the assessee had sold the surplus electricity to 14 individuals by way of a Power Purchase Agreement with them. In the absence of any availability of price of the electricity in the open market, the best alternative available with the TPO was to benchmark the transactions under the Act in accordance with the computation of Arm Length Price Principle as mentioned in Section 92C r.w. Rule 10B of Income Tax Rules. There is another reason to apply the principle as referred in Section 92C r.w. Rule 10B of I.T. Rules is that the prices charged by the State Distribution Utility from the consumer is dependent upon to various factors and are not comparable on FAR analysis. The assessee is a power generator, and the prices charged by the assessee are required to be compared with the prices charged by an independent third party having the thermal power plant and not with the transmission company or the distribution company. 31. In view of the above, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner specified by the Appropriate Commission;] (h) the promotion of co-generation and generation of electricity from renewable sources of energy; (i) the National Electricity Policy and tariff policy: Provided that the terms and conditions for determination of tariff under the Electricity (Supply) Act, 1948 (54 of 1948), the Electricity Regulatory Commission Act, 1998 (14 of 1998) and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier. Section 62 - Determination of tariff. (1) The Appropriate Commission shall determine the tariff in accordance with the provisions of this Act for- (a) supply of electricity by a generating company to a distribution licensee: Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of section 65 of the Act. Direct subsidy is a better way to support the poorer categories of consumers than the mechanism of cross subsidizing the tariff across the board. Subsidies should be targeted effectively and in transparent manner. As a substitute of cross-subsidies, the State Government has the option of raising resources through mechanism of electricity duty and giving direct subsidies to only needy consumers. This is a better way of targetting subsidies effectively. 15 Accordingly, the following principles would be adopted: 1. In accordance with the National Electricity Policy, consumers below poverty line who consume below a specified level, say 30 units per month, may receive a special support through cross subsidy. Tariffs for such designated group of consumers will be at least 50% of the average cost of supply. This provision will be re-examined after five years. 2. For achieving the objective that the tariff progressively reflects the cost of supply of electricity, the SERC would notify roadmap within six months with a target that latest by the end of year 2010-2011 tariffs are within +/- 20 % of the average cost of supply. The road map would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rural consumers can be achieved in a consumer friendly way and in effective manner by management of local distribution in rural areas through commercial arrangement with franchisees with involvement of panchayat institutions, user associations, cooperative societies etc. Use of self closing load limitors may be encouraged as a cost effective option for metering in cases of "limited use consumers" who are eligible for subsidized electricity. 8.4 Definition of tariff components and their applicability 1. Two-part tariffs featuring separate fixed and variable charges and Time differentiated tariff shall be introduced on priority for large consumers (say, consumers with demand exceeding 1 MW) within one year. This would also help in flattening the peak and implementing various energy conservation measures. 2. The National Electricity Policy states that existing PPAs with the generating companies would need to be suitably assigned to the successor distribution companies. The State Governments may make such assignments taking care of different load profiles of the distribution companies so that retail tariffs are uniform in the State for different categories of consumers. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting for open access, the distribution licensee could be in a position to discontinue purchase of power at the margin in the merit order. Accordingly, the cost of supply to the consumer for this purpose may be computed as the aggregate of (a) the weighted average of power purchase costs (inclusive of fixed and variable charges) of top 5% power at the margin, excluding liquid fuel based generation, in the merit order approved by the SERC adjusted for average loss compensation of the relevant voltage level and (b) the distribution charges determined on the principles as laid down for intra-state transmission charges. Surcharge formula: S = T - [ C (1+ L / 100) + D ] Where S is the surcharge T is the Tariff payable by the relevant category of consumers; C is the Weighted average cost of power purchase of top 5% at the margin excluding liquid fuel based generation and renewable power D is the Wheeling charge L is the system Losses for the applicable voltage level, expressed as a percentage The cross-subsidy surcharge should be brought down progressively and, as far as possible, at a linear rate to a maximum of 20% of its opening level by the year 2010-11. 33. Sections 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of comparing the transaction of a third party with the assessee under the comparable uncontrolled price (CUP) method, it is necessary though the transaction should be parametria similar to each other with no difference in FAR and analysis. Lastly, the assessee has brought to our notice that the tariff charged by any power generator company who has set up the thermal power plant to show that the prices charged by the said thermal power plant can be comparable with the price of Rs. 7.85 per unit benchmarked by the assessee. In view of the above, we found that the argument of the assessee that State Utility which is supplying the electricity at Rs. 7.85 paise is not comparable with the assessee and therefore, the argument of the ld.AR is rejected. 36. Further, we have also examined the agreement for purchase and sale of power entered into between Sanghi Industries Limited and Gujarat Fluorochemicals Limited page 131 of the paper book. In the said agreement, Sanghi Industries Limited and Gujarat Fluorochemicals Limited have agreed @ Rs. 2.68 per /kWh with the surcharge as mentioned therein. Similar is the agreement at page 142 of the paper book which also provided the tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Philips Carbon Black Limited in ITA No.2628/Kol/2019 dt.05.07.2022. In the said case, again the Tribunal in Para 5.7 had only relied upon the finding given by the Tribunal in the case of DCIT Vs. Balrampur Chini Mills Ltd (supra) and other the decision of Hon'ble High Courts referred hereinabove, which are not taken into account the Explanation to Section 80IA(8) inserted w.e.f. 01.04.2013 and has further taken into account the financial dissimilarity between the assessee and the State Electricity Board. Moreover, in the present case, assessee itself had benchmarked the transactions by following the CUP method under Section 92C of the Act and therefore, also, this judgment is not applicable to the facts of the case 41. Third decision relied upon by the assessee is ACIT Vs. M/s. Tamilnadu Newsprint and Papers Ltd in IT(TP)A No.47/Chny/2022 dt.30.11.2023. In this case also, the Tribunal has relied upon the decisions in the case of DCIT Vs. M/s. India Cements Ltd., in ITA 737/Chny/2018 wherein the decision of Hon'ble Bombay High Court in the case of CIT vs. Reliance Industries Ltd was followed. Both the decisions i.e., M/s. India Cements Ltd (supra) and the Reliance Industry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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