SOLARFIELD ENERGY PRIVATE LIMITED , MUMBAI V. PRINCIPAL COMMISSIONER OF INCOME TAX, CITY-2, MUMBAI

ITA 7209/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7829 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 20-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: JEHANGIR MISTRISR
• Keywords: Revision of order; Capital receipt
• Section: 263

Judgement Text

ITA NO.7209/MUM/2017 SOLARFIELD ENERGY PRIVATE LIMITED (A.Y. 2013-14) 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7209/MUM/2017 ( / ASSESSMENT YEAR: 2013-14) SOLARFIELD ENERGY PRIVATE LIMITED 21, 3 RD FLOOR, SETHI MANSION KUMTHA STREET, BALLARD ESTATE MUMBAI-400 038. / VS. PR. CIT - CITY - 2 , MUMBAI AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ! ./ ./PAN/GIR NO. AAOCS-4380-A ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : MR. JEHANGIR MISTRI-SR. ADVOCATE & MR. NIRAJ SHETH-ADVOCATE REVENUE BY : CHAUDHARY ARUN KUMAR SINGH - LD.DR / DATE OF HEARING : 22/08/2019 / DATE OF PRONOUNCEMENT : 14/10/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS APPEAL FOR ASSESSMENT YEAR [AY] 2 013-14, THE ASSESSEE CHALLENGES THE CORRECTNESS OF INVOCATION O F REVISIONAL JURISDICTION U/S 263 BY LD. PR. COMMISSIONER OF INC OME TAX-2, MUMBAI [PR. CIT] VIDE ORDER DATED 30/10/2017. 2. IN THE IMPUGNED ORDER, VIDE PARA-9, THE LEARNED PR. CIT HAS, INTER- ALIA, DIRECTED LD. AO TO ADD A SUM OF RS.14.86 CRORES, BE ING REVENUE ITA NO.7209/MUM/2017 SOLARFIELD ENERGY PRIVATE LIMITED (A.Y. 2013-14) 2 EARNED FROM SALE OF ELECTRICITY DURING THE PERIOD 0 1/04/2012 TO 08/07/2012 TO THE TOTAL INCOME OF THE ASSESSEE WHIC H WAS REDUCED BY THE ASSESSEE FROM CAPITAL WORK IN PROGRESS. IN THE ORDER, IT WAS ALSO OBSERVED THAT IN AY 2012-13, SIMILAR INCOME WAS NOT TREATED AS CAPITAL RECEIPTS BUT ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES . 3. THE LD. SR. COUNSEL ADVANCED ARGUMENT ASSAILING THE REVISIONAL JURISDICTION BY SUBMITTING THAT THE ISSUE WAS EXAMI NED BY LD. AO DURING ASSESSMENT PROCEEDINGS AND THE CLAIM WAS ALLOWED WI TH DUE APPLICATION OF MIND. OUR ATTENTION HAS BEEN DRAWN TO THE FACT T HAT THE STATED ISSUE, ON MERITS, IS SQUARELY COVERED BY RECENT DECISION O F THIS TRIBUNAL IN ASSESSEES OWN FOR AY 2012-13, ITA NO. 5189-90/MUM/ 2016 ORDER DATED 16/07/2019 WHEREIN TRIBUNAL HAS HELD THAT INC OME GENERATED DURING TRIAL RUN DOES NOT ARISE AS THE COMMERCIAL O PERATION OF THE ASSESSEE WAS NOT STARTED DURING THE PERIOD OF TRIAL . THE COPY OF THE ORDER HAS BEEN PLACED ON RECORD. THE LD. DR COULD NOT CON TROVERT THE FACT THAT ISSUE ON MERITS STOOD COVERED IN ASSESSEES FAVOR. UPON PERUSAL OF RECORD, IT ALSO TRANSPIRES THAT CONSEQUENTIAL ORDER PASSED BY LEARNED AO IS ALREADY UNDER APPEAL BEFORE LEARNED FIRST APPELL ATE AUTHORITY. 4. UPON DUE CONSIDERATION, IT HAS BEEN OBSERVED THA T ONE OF THE PRIME REASONS TO INVOKE JURISDICTION U/S 263 BY LD. PR.CI T FOR THIS YEAR WAS THE FACT THAT REVENUE EARNED BY ASSESSEE FROM SALE OF E LECTRICITY WAS REQUIRED TO BE ASSESSED AS INCOME FROM OTHER SOURCES AS WAS DONE IN AY 2012-13 AND THE FACTS WERE STATED TO BE IDENTICA L IN THE YEAR UNDER CONSIDERATION. HOWEVER, THE TRIBUNAL, VIDE ORDER DA TED 16/07/2019, HAS ADJUDICATED THE ISSUE ON MERITS FOR AY 2012-13 WHIC H IS EVIDENT FROM THE COPY OF ORDER AS PLACED ON RECORD. THEREFORE, ON TH E GIVEN SET OF FACTS, ITA NO.7209/MUM/2017 SOLARFIELD ENERGY PRIVATE LIMITED (A.Y. 2013-14) 3 THE BENCH FORMED AN OPINION THAT THE ISSUE OF REVIS IONAL JURISDICTION U/S 263 WOULD GO BACK TO LEARNED PR.CIT TO RECONSIDER T HE DIRECTIONS GIVEN IN THE IMPUGNED ORDER IN THE LIGHT OF SUBSEQUENT DECIS ION RENDERED BY THE TRIBUNAL, AS CITED ABOVE. WE ORDER SO. 5. THE APPEAL MAY BE TREATED AS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH OCTOBER, 2019. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 14/10/2019 SR.PS, JAISY VARGHESE -./012.1 / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. 2 ( ) / THE CIT(A) 4. 2 / CIT CONCERNED 5. 34 & 5 , 5 , / DR, ITAT, MUMBAI 6. 4678 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.