DCIT, CHENNAI V. M/s. Neyveli Lignite Corporation Ltd., Neyveli

ITA 514/CHNY/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1115 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 22-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOBADDL
• Assessee Lawyers: R VIJAYARAGHAVAN
• Section: 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO.514/MDS/2010 ASST. YEAR : 2000-01 THE DY. COMMISSIONER OF INCOME TAX, LARGE TAXPAYER UNIT, CHENNAI. (APPELLANT) V. M/S.NEYVELI LIGNITE CORPORATION LTD, CORPORATE OFFICE, PO NEYVELI 607 801. CUDDALORE DISTRICT PAN : AAACN1121C. (RESPONDENT) APPELLANT BY : MR. SHAJI P. JACOB, A DDL.CIT RESPONDENT BY : MR. R. VIJAYARAGHAVAN, ADVOCAT E DATE OF HEARING : 11 MAR 2013 DATE OF PRONOUNCEMENT : 15 MAR 20 13 O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), LTU. , CHENNAI DATED 22.1.2010 FOR THE ASST. YEAR 2000-01. THE RE VENUE HAS RAISED THE FOLLOWING GROUNDS :- ITA 514/MDS/10 2 1.1 THE LEARNED CIT(A) ERRED IN HOLDING THAT THE IS SUE AS TO WHETHER GENERATION OF ELECTRICITY WOULD AMOUN T TO MANUFACTURE OR PRODUCTION OF ARTICLE OR THING SO AS TO ENTAIL THE ASSESSEE TO DEDUCTION UNDER SEC.80IA OF THE I.T. ACT IS A DEBATABLE ONE AND HENCE, NOT AMENABLE TO RECTIFICATION U/S.154 OF THE ACT. 1.2 THE LEARNED CIT(A) FAILED TO APPRECIATE THAT TH E HON'BLE JURISDICTIONAL CHENNAI TRIBUNAL IN THE CASE OF TAMIL NADU CHLORTES V. JCIT (98 ITD 1), HELD THAT T HE WORD ARTICLE DOES NOT INCLUDE POWER GENERATION WI THIN ITS AMBIT. 1.3 THE LEARNED CIT(A) OUGHT TO HAVE NOTED THAT THE AFORESAID HON'BLE ITATS DECISION BEING OF THE HON' BLE JURISDICTIONAL TRIBUNAL, IS BINDING IN NATURE IN RE SPECT OF AREAS WITHIN ITS JURISDICTION AND HENCE, THERE CANN OT BE ANY DEBATE ON THE IMPUGNED ISSUE AND THE ISSUE UNDE R CONSIDERATION CANNOT BE TERMED AS A DEBATABLE ONE. 2. AT THE TIME OF HEARING, THE COUNSEL FOR THE AS SESSEE SUBMITS THAT THE ORDER PASSED BY THE ASSESSING OFFI CER UNDER SEC.154 OF THE I.T. ACT MODIFYING THE ORDER DATED 24.11.200 8 PASSED UNDER SEC.143(3) READ WITH SEC.263 OF THE ACT WITHDRAW ING THE DEDUCTION ITA 514/MDS/10 3 UNDER SEC.80IA OF THE ACT IS BAD IN LAW SINCE THE O RDER PASSED BY THE ASSESSING OFFICER UNDER SEC.143(3) READ WITH SEC.26 3 OF THE ACT HAD BECOME INFRUCTUOUS AS THIS TRIBUNAL HAD QUASHED THE ORDER PASSED UNDER SEC.263 OF THE I.T. ACT IN ITA NO.1174/MDS /2008 DATED 17.09.2010. THEREFORE, THE COUNSEL FOR THE ASSESS EE SUBMITS THAT SINCE THIS TRIBUNAL HAD QUASHED THE ORDER PASSED U NDER SEC. 63 OF THE ACT, CONSEQUENTLY, THE ASSESSMENT MADE UNDER SE C.143(3) READ WITH SEC.263 OF THE ACT HAD BECOME INFRUCTUOUS. HE NCE, THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SEC.154 OF TH E ACT MODIFYING THE ORDER PASSED UNDER SEC.143(3) READ WITH SEC.263 OF THE ACT, WITHDRAWING THE DEDUCTION UNDER SEC.80IA OF THE ACT HAD ALSO BECOME INFRUCTUOUS AND HAD NO LEGS TO STAND. 3. THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE O RDER OF THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH SIDES. PERUSED THE MATERIAL S ON RECORD AND THE ORDERS OF AUTHORITIES BELOW AND THE ORDER OF THIS TRIBUNAL RELIED ON BY THE ASSESSEE, PLACED ON RECOR D. THE ASSESSING OFFICER PASSED ORDER UNDER SEC.154 OF THE ACT WITHDRAWING THE ITA 514/MDS/10 4 DEDUCTION ALLOWED UNDER SEC.80IA OF THE ACT IN THE ORDER PASSED UNDER SEC.143(3) READ WITH SEC.263 OF THE ACT. THE CONSEQUENTIAL ASSESSMENT MADE UNDER SEC.143(3) READ WITH SEC.263 OF THE ACT ON 24.11.2008 HAD BECOME INFRUCTUOUS BY VIRTUE OF THE TRIBUNALS ORDER DATED 17.9.2010 IN ITA NO.1174/MDS/2008 WHEREIN THE TRIBUNAL HAD QUASHED THE ORDER PASSED BY THE COMMISSIONER OF INC OME TAX UNDER SEC.263 OF THE ACT. WHEN THE CONSEQUENTIAL ASSESS MENT ORDER MADE UNDER SEC.143(3) READ WITH SEC.263 OF THE ACT HAD B ECOME INFRUCTUOUS, THE MODIFICATION ORDER PASSED UNDER SE C.154 OF THE ACT WITHDRAWING THE DEDUCTION UNDER SEC.80IA OF THE ACT HAS BECOME INFRUCTUOUS AND HAS NO LEGS TO STAND. IN THE CIRCU MSTANCES, WE DISMISS THE GROUNDS OF APPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. ITA 514/MDS/10 5 6. ORDER PRONOUNCED ON FRIDAY, THE 15 TH DAY OF MARCH 2013, AT CHENNAI. SD/- SD/- ( N.S. SAINI ) (CHALLA N AGENDRA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED : MARCH 2013. JLS. COPY TO:- (1) APPELLANT (2) RESPONDENT (3) CIT-(A), (4) C.I.T., (5) D.R. (6) GUARD FILE