Alembic Limietd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

MA 14/AHD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4178 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 20-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA R SHAH
• Assessee Lawyers: S N SOPARKAR

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.14/AHD/2015 IN ./ ITA NO.1928/AHD/2000 / ASSTT.YEAR: 2007-2008] ALEMBIC LTD. ALEMBIC ROAD BARODA. VS DCIT, CIR.1(1) BARODA. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI S.N. SOPARKAR REVENUE BY : SHRI NARENDRA R. SHAH / DATE OF HEARING : 01/04/2016 / DATE OF PRONOUNCEMENT: 07/04/2016 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT MISC. APPLICATION IS DIRECTED AT THE IN STANCE OF THE ASSESSEE POINTING OUT AN APPARENT ERROR IN THE ORDE R OF THE TRIBUNAL. THE MA OF THE ASSESSEE READS AS UNDER: APPLICATION U/S 254(2) OF THE INCOME TAX ACT, 1961 THE PRESENT APPLICATION IS FILED BY THE APPLICANT A BOVE NAMED AGAINST THE ORDER DATED 27/03/2014 PASSED BY THIS HON'BLE I TAT PARTLY ALLOWING THE APPEAL FILED BY THE RESPONDENT (ORIGIN AL APPELLANT). IT IS MOST RESPECTFULLY SUBMITTED THAT IN THE SAID ORD ER OF THE HON'BLE ITAT, THERE ARE ERRORS APPARENT ON THE RECORD. MA NO.14/AHD/2015 2 DEPARTMENT (ORIGINAL APPELLANT) VIDE GROUND # 1 CHA LLENGED DELETION OF DISALLOWANCE OF DEDUCTION U/S 80IA (4) OF THE AC T. THE HON'BLE ITAT ADJUDICATED THE GROUND ON PAGE 6 PARA 5 AS BEL OW - '5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE CO-ORDINATE 'B' BENCH VIDE ITS ORDER DATED 15.02.2011 HAS SET ASIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE. THE CO-ORDINATE BENCH HAS CONFIRMED THE ORDER OF TH E CIT (A) WHO HAD ALLOWED THE 80IA DEDUCTION ON THE BASIS OF MARKET RATE OF POWER UNIT COMPUTING THE PROFIT FROM THE ELIGIBL E UNIT U/S 80IA (4). ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT (A) IN APPEAL BEFORE US. GROUND NO. 1 IS ALLOWED' 3. THE APPLICANT RESPECTFULLY SUBMITS THAT SI NCE THE HON'BLE ITAT HAS CONFIRMED THE ORDER OF CIT (A), THEN ADJUDICATI ON OF HON'BLE ITAT IN DEPARTMENTAL APPEAL OUGHT TO HAVE READ: 'GROUND # 1 IS DISMISSED.' 4. SECONDLY WHILE DEALING WITH THE DEPARTMENT AL APPEAL IN THE IMPUGNED ORDER ON PAGE 3 IT IS MENTIONED AS BELOW: FIRST WE TAKE ITA NO. 428/AHD/2010 (ASSESSEE'S APPE AL) THAT OUGHT TO READ AS: FIRST WE TAKE ITA NO. 1928/AHD/2010 (DEPARTMENTAL A PPEAL) 5. THIRDLY, WHILE ADJUDICATING ABOVE GROUND # L OF DEPARTMENTAL APPEAL, HON'BLE ITAT ON PAGE 5 PARA 3 HAS REPRODUCE D PARA 8.2 ON PAGE 19 OF ID. CIT (A) ORDER ADJUDICATING DEDUCTION U/S 80H HC IN PLACE OF PARA 8.2 ON PAGE 3 OF THE ORDER WITH RESPECT TO DEDUCTION U/S 80IA (4) OF THE ACT. 6. THE HON'BLE ITAT OUGHT TO HAVE REPRODUCED THE BELOW PARA 8.2 ON PAGE 3 OF CIT (A)'S ORDER ADJUDICATING GROUN D RAISED IN DEPARTMENTAL APPEAL - 8.2 I HAVE CONSIDERED THE SUBMISSIONS OF THE ID. AR AND T HE FACTS OF THE CASE. THE DECISIONS OF THE ITAT AHMEDABAD BE NCH IN MA NO.14/AHD/2015 3 APPELLANT'S OWN CASE (SUPRA) AND THE ITAT DELHI BEN CH IN THE CASE OF ADDL.CIT V JINDAL STEEL AND POWER LTD. (16 SOT 5 09) ARE SQUARELY APPLICABLE ON THE FACTS OF THE PRESENT CAS E. THE MUMBAI BENCH OF ITAT (IN WEST COAST PAPER MILLS) HAS CLEAR LY HELD THAT IN CASE OF GENERATION OF POWER FOR CAPTIVE CONSUMPTION , THE CLAIM OF DEDUCTION U/S 80IA WOULD STILL BE AVAILABLE. IN JIN DAL STEEL & POWER LTD., THE TRIBUNAL HAS HELD THAT THE MARKET V ALUE SHALL BE THE PRICE AT WHICH THE ASSESSEE PURCHASES THE ELECT RICITY FROM THE ELECTRICITY BOARD AND NOT THE ONE WHICH IS FIXED BY THE LEGISLATIVE MANDATE. IN THE INSTANT CASE THE ASSESSEE IS PREVEN TED BY THE LEGISLATIVE MANDATE FROM SELLING POWER TO ANY PERSO N OTHER THAN GEB AND THE RATE FIXED BY GEE WAS RS. 2.36 PER UNIT ONLY. ON THE OTHER HAND, THE GEB SOLD POWER TO THE ASSESSEE @ RS . 4.73 PER UNIT. SINCE THE FACTS OF THE INSTANT CASE ARE SQUAR ELY COVERED BY THE DECISIONS OF THE IT AT AS ABOVE, IT IS CLEAR THE AO WAS NOT JUSTIFIED IN DENYING THE CLAIM U/S 80IA. ACCORDINGLY, THE AO IS DIRECTED TO ALLOW THE DEDUCTION U/S 80IA AS CLAIMED, BASED ON M ARKET RATE OF RS. 4.73 PER UNIT OF POWER.' 4. THE APPLICANT MOST RESPECTFULLY SUBMITS TH AT APPARENTLY WHILE DRAFTING THE ORDER THE HON'BLE BENCH OVERLOOKED THE ABOVE ASPECTS OF MATTER LEADING TO OCCURRENCE OF VARIOUS TYPOGRAPHIC AL ERRORS. 5. THE APPLICANT THEREFORE, RESPECTFULLY SUBM ITS THAT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT AND PASS APPROPRIATE ORDER BY CORRECTING THE ABOVE TYPOGRAPHICAL ERRORS APPARENT ON RECORD. 2. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT PLEADIN G MADE BY THE ASSESSEE IN THE APPLICATION ARE CORRECT. THREE APP ARENT ERRORS HAVE CREPT IN THE ORDER OF THE TRIBUNAL. FIRST ERROR PO INTED OUT BY THE ASSESSEE IS THAT IN PARA-5 OF THE TRIBUNAL, IN THE LAST LINE EXPRESSION READS AS UNDER: ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT(A) IN APPEAL BEFORE US. GROUND NO.1 IS ALLOWED. MA NO.14/AHD/2015 4 IN FACT IT SHOULD BE ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) IN APPEAL BEFORE US. GROUND NO.1 IS DISMISSED. THE TRIBUNAL ORDER SHOULD BE READ AS ABOVE. 4. SIMILARLY, BEFORE PARA-2 OF PAGE NO.3, THE TRIBU NAL HAS MADE SUB- TITLE IN THE FOLLOWING EXPRESSION: FIRST WE TAKE ITA NO.428/AHD/2010 (ASSESSEES APPE AL) THERE WAS NO ASSESSEES APPEAL BEARING NO.428/AHD/ 2010. IT IS THE REVENUES APPEAL ONLY, AND THE ASSESSEE HAS FIL ED CO. THEREFORE, THIS TITLE SHOULD BE READ AS UNDER: FIRST WE TAKE ITA NO.1928/AHD/2010 (DEPARTMENTS A PPEAL) 5. IN THE THIRD MISTAKE, THE TRIBUNAL HAS TAKEN COG NIZANCE OF CITS ORDER AND REPRODUCED IN PARA-3 OF THE TRIBUNALS OR DER. THIS PORTION DOES NOT RELATE TO THE ISSUE, AND THUS, THE REPRODU CTION OF PARA 8.2 OF CIT(A)S ORDER IS EXPUNGED. IN REPLACE OF THIS, PA RA REFERRED BY THE ASSESSEE IN ITS APPLICATION IN PARA-6 BE READ. 6. IN THE ABOVE TERMS, MA OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/04/2016