Noida Power Company Ltd., Uttar Pradesh V. Addl. CIT, Noida

ITA 800/DEL/2013

• Counselvise Citation: 80020114 RSA 2013
• Duration Of Justice: 2 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-12-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 07-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Assessee Lawyers: PAWAN KUMAR
• Keywords: Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, HONBLE HONBLE HONBLE HONBLE VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT AND AND AND AND SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG, , , , HONBLE HONBLE HONBLE HONBLE JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO S.800/DEL/2013, 801/DEL/2013, 802/DEL/2013 & 803/DE L/2013 S.800/DEL/2013, 801/DEL/2013, 802/DEL/2013 & 803/DE L/2013 S.800/DEL/2013, 801/DEL/2013, 802/DEL/2013 & 803/DE L/2013 S.800/DEL/2013, 801/DEL/2013, 802/DEL/2013 & 803/DE L/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 20 2020 20 04 0404 04 - -- - 05, 2005 05, 2005 05, 2005 05, 2005 - -- - 06, 2006 06, 2006 06, 2006 06, 2006 - -- - 07 & 2009 07 & 2009 07 & 2009 07 & 2009 - -- - 10 1010 10 M/S NOIDA POWER COMPANY M/S NOIDA POWER COMPANY M/S NOIDA POWER COMPANY M/S NOIDA POWER COMPANY LIMITED, LIMITED, LIMITED, LIMITED, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, BLOCK BLOCK BLOCK BLOCK- -- -H, ALPHA II SECTOR, H, ALPHA II SECTOR, H, ALPHA II SECTOR, H, ALPHA II SECTOR, GREATER NOIDA CITY GREATER NOIDA CITY GREATER NOIDA CITY GREATER NOIDA CITY 201308. 201308. 201308. 201308. PAN : AAACN4984D. PAN : AAACN4984D. PAN : AAACN4984D. PAN : AAACN4984D. VS. VS. VS. VS. ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, NOIDA RANGE, NOIDA RANGE, NOIDA RANGE, NOIDA RANGE, NOIDA. NOIDA. NOIDA. NOIDA. (APPELLANT) ( RESPONDENT) APPELLANT BY : SHRI PAWAN KUMAR, ADVOCATE. RESPONDENT BY : SHRI ANKUR GARG, CIT - DR. DATE OF HEARING : 08.12.2015 08.12.2015 08.12.2015 08.12.2015 DATE OF PRONOUNCEMENT : 17.12.2015 17.12.2015 17.12.2015 17.12.2015 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2004-05 TO 2006-07 AND 2009-10 ARE DIRECTED AGAINST THE ORD ER OF LEARNED CIT(A), NOIDA DATED 23 RD NOVEMBER, 2012. 2. AT THE TIME OF HEARING BEFORE US, LEARNED COUNSE L FOR THE ASSESSEE FAIRLY ADMITTED THAT THIS ISSUE IS COVERED BY THE DECISION OF ITAT IN EARLIER YEARS. HE POINTED OUT THAT IN ASSE SSMENT YEAR 1994-95 VIDE ITA NO.70/DEL/2003, THIS ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. HOWEVER, SUBSEQUENTLY, THE ITAT, FOR ASS ESSMENT YEAR 1995-96 ONWARDS, DECIDED THIS ISSUE AGAINST THE ASS ESSEE. HE SUBMITTED THAT SINCE THERE IS A CONTRARY VIEW OF TH E ITAT IN ASSESSEES OWN CASE, THE MATTER SHOULD BE REFERRED TO THE SPEC IAL BENCH. HE FAIRLY ADMITTED THAT IN EARLIER YEARS, THE ASSESSEE HAS FILED THE APPEAL BEFORE HON'BLE JURISDICTIONAL HIGH COURT AND THE SA ME HAS ALREADY BEEN ITA-800 TO 803/DEL/2013 2 ADMITTED FOR ADJUDICATION. HE STATED THAT WHEN THE RE WAS A DECISION OF ITAT IN ASSESSEES FAVOUR FOR ASSESSMENT YEAR 1994- 95, THE ITAT COULD NOT HAVE DECIDED THE ISSUE AGAINST THE ASSESSEE IN THE SUBSEQUENT YEAR. IF AT ALL THE SUBSEQUENT BENCH OF THE ITAT W AS NOT IN AGREEMENT WITH THE EARLIER BENCH OF THE ITAT, IT OUGHT TO HAV E REFERRED THE MATTER TO THE LARGER BENCH. HE, THEREFORE, SUBMITTED THAT IT WOULD BE IN THE FITNESS OF THINGS THAT NOW THE MATTER MAY BE REFERR ED TO THE LARGER BENCH. 3. LEARNED DR, ON THE OTHER HAND, STATED THAT IN TH E ASSESSMENT YEAR 2008-09 VIDE ORDER DATED 12 TH OCTOBER, 2012 IN ITA NO.1614/DEL/2012, ITAT HAS ALREADY CONSIDERED THIS CONTENTION OF THE LEARNED COUNSEL AND REJECTED THE SAME FOLLOWING THE DECISION OF ITAT FROM ASSESSMENT YEAR 1995-96 ONWARDS. HE, THEREFOR E, SUBMITTED THAT THE CONSISTENT VIEW BEING TAKEN BY THE ITAT FROM 19 96-97 SHOULD BE FOLLOWED AND ASSESSEES APPEALS SHOULD BE DISMISSED . 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND HAVE PERUSED THE RELEVANT MATERIAL PLACED BEFOR E US. ADMITTEDLY, THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE FOR ASSESSMENT YEAR 1994-95 VIDE ITA NO.70/DEL/2003. HOWEVER, THEREAFT ER, FROM ASSESSMENT YEAR 1995-96, THIS ISSUE IS BEING DECIDE D AGAINST THE ASSESSEE. WE FIND THAT IN A DETAILED ORDER FOR ASS ESSMENT YEARS 1995- 96 TO 1999-2000, THE ITAT DECIDED THIS ISSUE AGAINS T THE ASSESSEE AND HELD AS UNDER:- 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND A LSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS HELD B Y HON'BLE SUPREME COURT IN THE CASE OF BHARAT EARTH M OVERS VS. CIT 245 ITR 428, IF A BUSINESS LIABILITY HAS DEFINITELY ARISEN IN THE ACCOUNTING YEAR, DEDUCTION IS ALLOWAB LE ALTHOUGH THE SAID LIABILITY MAY HAVE BEEN QUANTIFIE D AND DISCHARGED AT A FUTURE DATE. IN THE PRESENT CASE, THE AMOUNT IN QUESTION WAS PAYABLE BY THE ASSESSEE COMP ANY TO UPSEB TOWARDS PURCHASE PRICE OF POWER WHICH HAD NOT ITA-800 TO 803/DEL/2013 3 ONLY BEEN PURCHASED DURING THE RELEVANT YEARS BUT T HE SAME WAS SUPPLIED ALSO IN THE BULANDSHAHAR AREA. E VEN THE AMOUNT RECEIVED FROM SUCH SUPPLY OF POWER WAS A LSO DECLARED BY THE ASSESSEE COMPANY AS ITS INCOME DURI NG THE SAID YEARS. MOREOVER, THE SAID POWER WAS PURCH ASED BY THE ASSESSEE IN TERMS OF AN AGREEMENT ENTERED IN TO WITH UPSEB AT THE AGREED RATES AND EVEN THE BILLS W ERE ALSO RAISED BY UPSEB ON THE ASSESSEE AT SUCH RATES. THE SAID LIABILITY REPRESENTING THE BUSINESS LIABILITY OF THE ASSESSEE COMPANY THUS, IN OUR OPINION, HAD DEFINITE LY ARISEN IN THE RELEVANT PREVIOUS YEARS AND THE DEDUC TION IN RESPECT OF THE SAME WAS ALLOWABLE TO THE ASSESSEE COMPANY IN THOSE YEARS AS HELD BY HON'BLE SUPREME C OURT IN THE CASE OF BHARAT EARTH MOVERS (SUPRA). THE AC TUAL DATES OF RECEIPT OF THE CORRESPONDING BILLS FROM UP SEB AS WELL AS THE RESULTANT FAILURE OF THE ASSESSEE COMPA NY TO MAKE PROVISION FOR THE SAME IN ITS BOOKS OF ACCOUNT FOR THE RELEVANT YEARS ARE NOT RELEVANT OR CONCLUSIVE IN TH IS CONTEXT. 12. AS REGARDS THE QUANTIFICATION OF THE SAID LIABI LITY, IT IS OBSERVED THAT EVEN THOUGH THE POWER PURCHASE PRICE WAS PAYABLE BY THE ASSESSEE COMPANY TO UPSEB AT THE RAT ES STIPULATED IN THE AGREEMENT AND EVEN THE BILLS WERE RAISED BY UPSEB AT THE SAID RATES, THE SAME WERE DISPUTED BY THE ASSESSEE COMPANY DURING THE RELEVANT PERIOD AND THE DISPUTE WAS REFERRED TO AN INDEPENDENT AUTHORITY. THE SAID AUTHORITY HAD RECOMMENDED THE LOWER POWER PURCHASE RATES THAN STIPULATED IN THE AGREEMENT AND ALTHOUGH THE SAME HAD NOT BECOME FINAL, THE SAID LOWER RATES RECOMMENDED BY THE AUTHORITY WERE ACCEPTED BY THE ASSESSEE COMPANY. THE DISPUTE TO THAT EXTENT THUS WAS SETTLED AND THIS BEING SO, WE ARE OF THE VIEW THAT IT WAS POSSIBLE TO QUANTIFY THE LIABILITY ON ACCOUNT OF PU RCHASE PRICE PAYABLE BY THE ASSESSEE COMPANY TO UPSEB TOWA RDS POWER WITH REASONABLE CERTAINTY BY APPLYING THE SAI D RATES AND THE LIABILITY TO THAT EXTENT COULD BE TAKEN AS ASCERTAINED. IN THE CASE OF SWADESHI COTTON MILLS LTD. VS. CIT 125 ITR 33, HONBLE ALLAHABAD HIGH COURT HAS HELD THAT IF THE LIABILITY IS BASED ON CONTRACTUAL OBLIG ATION, IT ARISES ONLY WHEN IT IS ASCERTAINED IN THE CASE OF A N ASSESSEE FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING. A LIABILITY WHICH IS DEPENDENT ON THE FULFILLMENT OF A CONDITION WHICH MAY RESULT IN REDUCTION OR IN EXTINCTION OF T HE LIABILITY CANNOT BE ALLOWED AS A DEDUCTION. IN THE CASE OF R AJASTHAN STATE MINES & MINERALS LTD. VS. CIT 208 ITR 1010, HONBLE RAJASTHAN HIGH COURT HAS HELD THAT INCOME TAX LAW M AKES A DISTINCTION BETWEEN AN ACTUAL LIABILITY IN PRAESE NTI AND ITA-800 TO 803/DEL/2013 4 LIABILITY DE FUTURE WHICH FOR THE TIME BEING IS ONL Y CONTINGENT. FORMER IS DEDUCTIBLE BUT NOT THE LATTE R. KEEPING IN VIEW THE PROPOSITION PROPOUNDED IN THESE JUDICIAL PRONOUNCEMENTS AND HAVING REGARD TO FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE LIABILITY ON ACCO UNT OF POWER PURCHASE PRICE PAYABLE BY THE ASSESSEE COMPAN Y TO UPSEB TO THE EXTENT CALCULATED AT THE RATES RECOMME NDED BY THE INDEPENDENT AUTHORITY COULD BE ALLOWED BEING THE ASCERTAINED ONE. ON THE OTHER HAND, THE LIABILITY ON ACCOUNT OF DIFFERENTIAL RATES OF POWER PURCHASE PAY ABLE BY THE ASSESSEE COMPANY TO UPSEB COULD NOT BE ALLOWED AS THE SAME WAS A DISPUTED LIABILITY AT THE RELEVANT T IME WITH A POSSIBILITY OF REDUCTION OR EXTINCTION THEREOF SUBSEQUENTLY. WE, THEREFORE, DIRECT THE AO TO ALLO W THE DEDUCTION ON ACCOUNT OF LIABILITY PAYABLE BY THE AS SESSEE COMPANY TO UPSEB ON ACCOUNT OF PURCHASE OF POWER SUPPLIED TO BULANDSHAHAR AREAS IN THE RELEVANT YEAR S UNDER APPEALS TO THE EXTENT AS QUANTIFIED BY APPLYING THE RATES RECOMMENCED BY THE INDEPENDENT AUTHORITY AND ACCEPT ED BY THE ASSESSEE COMPANY. THE RELEVANT GROUNDS OF T HE ASSESSEES APPEALS INVOLVING THESE ISSUES ARE THUS PARTLY ALLOWED. 13. THE NEXT ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTION ON ACCOUNT OF POWER PURCHASE PRICE PAYABL E TO UPSEB IS RAISED IN THE FOLLOWING GROUNDS:- GROUND NO. APPEAL NO. ASSESSMENT YEAR 2 1389/DEL/2003 1996-97 2 1390/DEL/2003 1997-98 1 2572/DEL/2004 1998-99 1 2573/DEL/2004 1999-2000 14. AS ALREADY MENTIONED, THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF DISTRIBUTION OF POWER IN AND AROUND THE GREATER NOIDA AREA INCLUDING BULANDSHAHA R. THE POWER BEING DISTRIBUTED BY IT WAS PURCHASED DUR ING THE YEARS UNDER CONSIDERATION FROM UPSEB IN TERMS OF A POWER PURCHASE AGREEMENT AT THE RATES STIPULATED THEREIN. THE SAID RATES, HOWEVER, WERE DISPUTED BY THE ASSESSEE COMPANY AND THE MATTER WAS REFERRED TO AN INDEPENDE NT AUTHORITY WHO RECOMMENDED CERTAIN RATES WHICH WERE LOWER THAN THE RATES STIPULATED IN THE AGREEMENT. IN ITS BOOKS OF ACCOUNT FOR THE RELEVANT YEARS, THE EXPEND ITURE ON ACCOUNT OF POWER PURCHASE FROM UPSEB WAS DEBITED BY THE ASSESSEE AT THE RATES RECOMMENDED BY THE INDEPENDEN T AUTHORITY AS THE SAME WERE ACCEPTED BY IT. UPSEB, ITA-800 TO 803/DEL/2013 5 HOWEVER, HAD NOT AGREED FOR THE SAID RATES AND THE DISPUTE TO THAT EXTENT HAD REMAINED UNRESOLVED DURING THE RELEVANT YEARS. MEANWHILE, UPSEB CONTINUED TO RAIS E THE BILLS ON THE ASSESSEE COMPANY AT THE RATES AS STIPU LATED IN THE POWER PURCHASE AGREEMENT. ON THE BASIS OF THES E BILLS RAISED BY UPSEB, THE ASSESSEE COMPANY CLAIMED A DEDUCTION ON ACCOUNT OF LIABILITY CALCULATED IN RES PECT OF DIFFERENTIAL RATE STATING THAT THE SAID LIABILITY A LSO HAD ARISEN DURING THE RELEVANT YEARS. IN SUPPORT OF TH IS CLAIM, RELIANCE WAS PLACED BY THE ASSESSEE COMPANY ON THE BILLS ACTUALLY RECEIVED FROM UPSEB AS WELL AS THE PURCHAS E POWER AGREEMENT UNDER WHICH THE RATES AS CHARGED IN THE SAID BILLS WERE AGREED BY IT. THIS CLAIM OF THE AS SESSEE WAS NOT ACCEPTED BY THE AO MAINLY ON THE GROUND THAT IT HAD NEITHER MADE THE PAYMENT OF THE DIFFERENTIAL AMOUNT NOR ANY PROVISION WAS MADE FOR THE SAME IN ITS BOOKS OF ACCOUNT. 15. BEFORE THE LEARNED CIT(A), THE SUBMISSIONS MADE ON ITS BEHALF BEFORE THE AO WERE REITERATED BY THE ASS ESSEE COMPANY. THE LEARNED CIT(A), HOWEVER, DID NOT FIND ANY MERIT IN THE SAME AND CONFIRMED THE DISALLOWANCE MA DE BY THE AO ON THIS ISSUE FOR THE SAME REASON AND ON THE SAME GROUNDS AS ADOPTED BY HIM WHILE DECIDING THE ISSUE RELATING TO ASSESSEES CLAIM FOR DEDUCTION ON ACCOU NT OF PRICE PAYABLE TO UPSEB TOWARDS POWER PURCHASED FOR SUPPLY TO BULANDSHAHAR AGAINST THE ASSESSEE. 16. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IN O UR OPINION, THE DECISION RENDERED BY US WHILE DEALING WITH THE ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTIO N ON ACCOUNT OF LIABILITY TOWARDS PURCHASE PRICE PAYABLE TO UPSEB FOR POWER SUPPLIED TO BULANDSHAHAR AREA COVER S THIS ISSUE ALSO. AS HELD BY US THEREIN, THE DIFFERENTIA L RATE I.E. THE DIFFERENCE BETWEEN THE RATE AS STIPULATED IN TH E AGREEMENT AND AS CHARGED BY UPSEB TO THE ASSESSEE I N THE BILLS AND THE RATE AS RECOMMENDED BY THE INDEPE NDENT AUTHORITY AND AS AGREED BY THE ASSESSEE WAS IN DISP UTE AND THE SAID DISPUTE WAS NOT RESOLVED DURING THE RE LEVANT PREVIOUS YEARS. THE CONTRACTUAL LIABILITY OF THE A SSESSEE ON ACCOUNT OF SUCH DIFFERENTIAL RATES THUS WAS NOT THE ACTUAL LIABILITY IN PRAESENTI AND THERE BEING A POSSIBILIT Y OF A REDUCTION OR EXTINCTION OF THE SAID LIABILITY, THE SAME COULD NOT BE REGARDED AS AN ASCERTAINED LIABILITY. THE S AME, THEREFORE, COULD NOT BE SAID TO HAVE ARISEN DURING THE RELEVANT PREVIOUS YEARS AND THE ASSESSEE FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING WAS NOT ENTITLED TO CLAIM ITA-800 TO 803/DEL/2013 6 THE SAME AS DEDUCTION. THE SAID LIABILITY THUS WAS NOT CRYSTALLIZED INTO AN ASCERTAINED LIABILITY AND HAD NOT BECOME ENFORCEABLE DURING THE RELEVANT PREVIOUS YEA RS. THIS BEING SO, WE ARE OF THE VIEW THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF THE SAID LIABILITY WAS RI GHTLY DISALLOWED BY THE ASSESSING OFFICER. THE IMPUGNED ORDER OF THE LEARNED CIT(A) CONFIRMING THE SAID DISALLOWA NCE IS THUS UPHELD AND THE RELEVANT GROUNDS OF THE ASSESSE ES APPEALS ARE DISMISSED. 5. THE ABOVE ORDER OF ITAT IS FOLLOWED FOR ASSESSME NT YEAR 2000-01 TO 2003-04 VIDE ORDER DATED 16 TH JANUARY, 2009. AGAIN FOR ASSESSMENT YEAR 2008-09, THE ITAT DECIDED THIS ISSUE FOLLOWING ITS OWN ORDER FOR ASSESSMENT YEAR 1995-96 ONWARDS. IN THIS ORDER, TH E ITAT HAS ALSO CONSIDERED THE ORDER OF THE ITAT WHICH WAS IN FAVOU R OF THE ASSESSEE FOR ASSESSMENT YEAR 1994-95. THE RELEVANT FINDING OF THE ITAT READS AS UNDER:- 4. LD.DR FURTHER SUBMITTED THAT ALTHOUGH THERE IS THE ORDER OF ITAT IN ITA 70/DEL/2003 FOR AY 1994-95 AVA ILABLE ON PAGES 1.1 TO 1.5 OF THE PAPER BOOK IN FAVOUR OF THE ASSESSEE BUT SUBSEQUENT DECISIONS OF THE TRIBUNAL S HOULD BE CONSIDERED WHICH WERE IN FAVOUR OF THE REVENUE F ROM AY 1995-96 TO 1999-2000 AND CONTINUOUSLY FOLLOWED UPTO AY 2007-08. THE DR FURTHER SUBMITTED THAT IN THE FIRS T DECISION FOR AY 1994-95, THE TRIBUNAL TOOK A NOTE O F THE STIPULATION IN THE AGREEMENT THAT THE POWER PURCHAS E RATE WAS STUDIED AND REVISED BY INDEPENDENT AUTHORITIES. CONSEQUENTLY, NAIR COMMITTEE WAS APPOINTED ON 31.08.1994. THE NAIR COMMITTEE DETERMINED THE RATE AT RS.1.35 PER UNIT BUT THE REPORT WAS SUBMITTED BY TH E COMMITTEE MUCH AFTER THE CLOSE OF THE PREVIOUS YEAR I.E. 1993-94. HE FURTHER SUBMITTED THAT FROM A BARE REA DING OF THE ORDER OF THE TRIBUNAL FOR AY 1994-95, IT IS VER Y MUCH CLEAR THAT THE TRIBUNAL DID NOT CONSIDER THE FINDIN GS OF THE NAIR COMMITTEE AND THIS WAS DONE IN THE ORDERS OF T HE TRIBUNAL FOR SUBSEQUENT ASSESSMENT YEARS. THE DR VEHEMENTLY SUBMITTED THAT IN THESE PECULIAR FACTS A ND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE TRIBUNA L FOR AY 1994-95 HAS BEEN MODIFIED BY THE TRIBUNAL ITSELF IN THE SUBSEQUENT YEARS TILL IMMEDIATELY PRECEDING AY 2007 -08 TO THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2008-0 9 IN THE PRESENT CASE. ITA-800 TO 803/DEL/2013 7 5. THE DR FINALLY SUBMITTED THAT THE DECISION OF TH E TRIBUNAL IN SUBSEQUENT YEARS SHOULD BE FOLLOWED AS A RULE OF CONSISTENCY BECAUSE THE RECOMMENDATIONS OF THE N AIR COMMITTEE ARE STILL IN FORCE. THE DR ALSO SUBMITTE D THAT NOW THIS MATTER IS PENDING BEFORE HON'BLE SUPREME C OURT. HENCE, THE LATER DECISIONS OF THE TRIBUNAL MAY BE F OLLOWED. 6. IN VIEW OF ABOVE SUBMISSIONS AND ITAT DELHI E BENCH JUDGMENT FOR AY 2007-08 IN ASSESSEES OWN CAS E, WE ARE OF THE VIEW THAT SUBSEQUENT DECISION OF THE TRIBUNAL CONSIDERED ALL THE FACTS AND CIRCUMSTANCES RELATED TO THE ISSUE IN QUESTION WHICH WERE AVAILABLE TILL THAT PO INT OF TIME. THE FIRST DECISION OF THE TRIBUNAL FOR AY 19 94-95 WAS DELIVERED WITHOUT CONSIDERING THE RECOMMENDATIONS O F THE NAIR COMMITTEE BUT THE SAME WAS CONSIDERED IN THE SUBSEQUENT ASSESSMENT YEARS ORDERS TILL AY 2007-08. THE ASSESSEES REPRESENTATIVE WAS SPECIFICALLY ASKED TO SUBMIT ANY ORDER OR JUDGEMENT CONTRARY TO THE FINDINGS OF THE TRIBUNAL IN THE SUBSEQUENT ASSESSMENT YEARS IN ASSE SSEES OWN CASE BUT HE EXPRESSED HIS INABILITY. THEREFORE , WE HAVE NO SUBSTANTIAL REASON TO TAKE A DIFFERENT VIEW WHICH HAS ALREADY BEEN TAKEN BY THE ITAT DELHI E BENCH IN ITA NO.999/DEL/2011 (SUPRA). ACCORDINGLY, FOLLOWING TH IS DECISION, GROUND NO.1 IS DECIDED IN FAVOUR OF THE R EVENUE. CONSEQUENTLY GROUND NO.1 IS DISMISSED. 6. FROM THE ABOVE, IT IS EVIDENT THAT IN ASSESSMENT YEAR 2008-09, THE ITAT HAS ALREADY CONSIDERED ALL THE EARLIER DEC ISIONS INCLUDING THE DECISION OF THE ITAT FOR ASSESSMENT YEAR 1994-95 WH ICH IS IN FAVOUR OF THE ASSESSEE AND THE SUBSEQUENT DECISIONS WHICH ARE AGAINST THE ASSESSEE AND THEREAFTER, THE ITAT FOLLOWED THE SUBS EQUENT DECISIONS I.E., THE DECISIONS OF ITAT FROM ASSESSMENT YEAR 19 95-96 ONWARDS. WE FIND THAT THE ITAT IS TAKING A CONSISTENT VIEW IN F AVOUR OF THE REVENUE FROM 1995-96 ONWARDS. THE MATTER IN THE EARLIER YE AR HAS ALREADY BEEN TAKEN TO THE HIGH COURT BY THE ASSESSEE AND IT IS CLAIMED TO BE PENDING FOR ADJUDICATION WITH THEIR LORDSHIPS. IN THE ABOVE CIRCUMSTANCES AND IN THE LIGHT OF THE CONSISTENT VI EW BEING TAKEN BY THE ITAT FROM 1995-96 ONWARDS, WE DO NOT FIND ANY J USTIFICATION FOR REFERRING THE MATTER TO THE LARGER BENCH. WE, THER EFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT FOR ASSESSMENT Y EAR 2008-09 VIDE ITA NO.1614/DEL/2012, WHICH IS TAKEN BY THE ITAT AFTER CONSIDERING ALL THE ITA-800 TO 803/DEL/2013 8 DECISIONS OF THE ITAT IN EARLIER YEARS, DECIDE THE ISSUE IN FAVOUR OF THE REVENUE AND REJECT THE GROUNDS RAISED IN THE ASSESS EES APPEALS. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 17.12.2015 . SD/- SD/- ( (( ( CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S NOIDA POWER COMPANY LIMITED, M/S NOIDA POWER COMPANY LIMITED, M/S NOIDA POWER COMPANY LIMITED, M/S NOIDA POWER COMPANY LIMITED, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, COMMERCIAL COMPLEX, BLOCK BLOCK BLOCK BLOCK- -- -H, ALPHA II SECTOR, H, ALPHA II SECTOR, H, ALPHA II SECTOR, H, ALPHA II SECTOR, GREATER NOIDA CI GREATER NOIDA CI GREATER NOIDA CI GREATER NOIDA CITY TY TY TY 201308. 201308. 201308. 201308. 2. RESPONDENT : ADDITIONAL COMMISSIONER OF INCOME T AX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, NOIDA RANGE, NOIDA. NOIDA RANGE, NOIDA. NOIDA RANGE, NOIDA. NOIDA RANGE, NOIDA. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR