ACIT, CHENNAI V. M/s. OPG Energy P. Ltd., CHENNAI

ITA 2072/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58005 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.2072(MDS)/2011 ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE V(1), CHENNAI. VS. M/S. OPG ENERGY P. LTD., 17, MOOKER NALLAMUTHU ST., CHENNAI-600 001. PAN AACO4724G. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KEB RENGARAJAN, JR. STANDING COUNSEL RESPONDENT BY : NONE DATE OF HEARING : 8 TH MARCH, 2012 DATE OF PRONOUNCEMENT : 8 TH MARCH, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS APPEAL IS FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-V AT CHENNAI, - - ITA 2072 OF 2011 2 DATED 28-9-2011 AND ARISES OUT OF THE ASSESSMENT CO MPLETED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961. 2. THE ISSUE RAISED BY THE REVENUE IS THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRED IN HO LDING THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION UNDER S ECTION 80IA IN RESPECT OF CAPTIVE POWER CONSUMPTION BY ITS GROUP C ONCERN M/S.OPG METALS. IT IS THE CASE OF THE REVENUE THAT THERE WAS NO ACTUAL SALE OF POWER TO M/S. OPG METALS, AS THE GRO UP CONCERN WAS ALSO LOCATED IN THE SAME PREMISES AND THE POWER WAS NEVER TRANSMITTED THROUGH THE TAMIL NADU ELECTRICITY BOAR D GRID. 3. WHEN THE MATTER WAS CALLED ON FOR HEARING, NOBO DY WAS PRESENT FOR THE RESPONDENT-ASSESSEE INSPITE OF NOTICE. WE HEARD SHRI KEB RENGARAJAN, THE LEARNED STANDING COU NSEL APPEARING FOR THE REVENUE, AND PROCEED TO DISPOSE O F THE MATTER EX PARTE, QUA THE ASSESSEE. 4. THE VERY SAME ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER ASS ESSMENT YEAR - - ITA 2072 OF 2011 3 2006-07 IN THEIR ORDER DATED 3-6-2011, RENDERED IN ITA NO.1014(MDS)/2010. CONSIDERING THE FACTUAL MATRIX OF THE CASE, THE TRIBUNAL CAME TO A CONCLUSION THAT THE ASSESSEE WAS ENTITLED FOR THE DEDUCTION AVAILABLE UNDER SECTION 80IA. TH E COMMISSIONER OF INCOME-TAX(APPEALS) HAS ADJUDICATED THE ISSUE BY FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL, WHICH IS, OF COURSE, BINDING ON HIM. THE GRIEVANCE OF THE REVENUE IS TH AT THE ABOVE STATED ORDER OF THE TRIBUNAL HAS NOT BECOME FINAL, AS THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE HONBLE MADRAS H IGH COURT. 5. OFCOURSE, THE REVENUE HAS THE RIGHT TO PURSUE T HE MATTER IN COURTS OF LAW. BUT, AS THE ISSUE STANDS NOW COVERED BY THE EARLIER DECISION OF THE TRIBUNAL RENDERED IN AS SESSEES OWN CASE, THE COMMISSIONER OF INCOME-TAX(APPEALS), AS T HE FIRST APPELLATE AUTHORITY, IS BOUND TO FOLLOW THE ORDER O F THE JURISDICTIONAL TRIBUNAL. THEREFORE, HIS ORDER CANN OT BE HELD TO BE UNJUST OR UNSUSTAINABLE IN LAW. MOREOVER, ON THE M ERIT OF THE ISSUE ALSO, THE ORDER OF THE TRIBUNAL HAS NOT BEEN DISTURBED SO FAR. - - ITA 2072 OF 2011 4 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THIS APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 8 TH OF MARCH, 2012 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 8 TH MARCH, 2012. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.