NUCLEAR POWER CORPORATION OF INDIA LTD MUMBAI vs ADDL CIT RG 3(2) MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS.

KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No.

202/MUM/2004 Assessment Year: 1998-99 & ITA No.

114/MUM/2004 Assessment Year: 1999-2000 & ITA No.

4413/MUM/2004 Assessment Year: 2000-01 & ITA No.

3867/MUM/2008 Assessment Year: 2001-02 & ITA No.

4743/MUM/2007 Assessment Year: 2002-03 & ITA No.

4744/MUM/2007 Assessment Year: 2003-04 & ITA No.

4745/MUM/2007 Assessment Year: 2004-05 & ITA No.

2452/MUM/2011 Assessment Year: 2005-06 Nuclear Power Corporation of India Ltd., Vikram Sarabhai Bhavan, Central Avenue, Anushakti Nagar, Mumbai-400094.

Vs.

ACIT, Range-3(2), Aayakar Bhavan, M.K.

Road, Mumbai-400021.

PAN NO.

AAACN 3154 F Appellant Respondent I A Nuclear Power Corp India Ltd., 8th floor, South Win Sarabhai Bhavan, Avenue, Anushakti Mumbai-400094.

AAACN 3 Appellant I A A DCIT, 3(2), Room No.

608, 6th f Aayakar Bhavan, M Mumbai-400020.

Appellant I A DCIT-LTU, 28th floor, Centre-1 Trade Centre, Cuffe Mumbai-400005.

Appellant Assessee by Revenue by M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ITA No.

3553/MUM/2011 Assessment Year: 2006-07 poration of ng, Vikram Central i Nagar, Vs.

DCIT, Large Tax 28th floor, Centre Trade Centre, Mumbai-400005 3154 F Respondent ITA No.

4603/MUM/2007 Assessment Year: 2004-05 & ITA No.

625/MUM/2009 Assessment Year: 2005-06 floor, M.K.

Road, Vs.

M/s Nuclear Power C of India Ltd., Centre-I, World Trad 16th floor, Cuffe Para Mumbai-400005.

AAACN 3154 F Respondent ITA No.

3501/MUM/2011 Assessment Year: 2006-07 1, World e Parade, Vs.

AAACN 3154 F Respondent : Mr.

K.

Gopal, Advocate : Mr.

Ashok Kumar Karda Corporation of India Ltd..

2 4413/M/2004, 43 to 4745/M/2007, Ors Payer Unit, e 1, World .

1, World .

Corporation de Centre, ade, am, CIT-DR Date of last Hea Date of pronounc PER Bench These appeals against separate orde i.e. “the Commission CIT(A)].

As identical involved in these app disposed off by way avoid repetition of fac AY 1998-99 2.

First of all, w assessment year 199 raised by the assesse 1.

The le as inc lacs, b by the 2.

Withou Comm amoun levy w from ta 3.

The confirm M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O aring : 27/10/2023 cement : 29/11/2023 ORDER by the assessee and Revenu ers passed by the Ld.

First App ner of Income-tax (Appeals)” [ issusses arising from same s peals, therefore, same were hea of this consolidated order for c cts. we take up the appeal of th 98-99 in ITA No.

202/Mum/200 ee are reproduced as under: earned Commissioner Appeals erred in come of the appellant an amount of R being Renovation & Modernisation lev e appellant. ut prejudice to Ground 1 above, t missioner (Appeals) erred in holdin nt collected towards Renovation & Mo was not in the nature of a capital rec ax. learned Commissioner (Appeals ming as income of the appellant an Corporation of India Ltd..

3 4413/M/2004, 43 to 4745/M/2007, Ors ue are directed pellate Authority in short the ld set of facts are ard together and convenience and he assessee for 04.

The grounds n confirming Rs.4,263.63 vy collected the learned ng that the odernisation ceipt exempt erred in n amount of Rs.2,5 collect 4.

Withou Comm of th Develo receip 5.

The confirm Rs.1,7 collect 6.

The confirm 1,836.

Decom 7.

The confirm in taxi been incurre 1 In 2 Co 3 Ot To 8.

The confirm disallo expen expen releva expen 9.

Withou Comm deduc period 10. confirm disallo 43B.

M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 558.18 lacs, being Research & Develo ted by the appellant. appellant. ut prejudice to Ground 3 above, t missioner (Appeals) erred in holding th he amount collected towards Re opment levy was not in the nature o t exempt from tax. learned Commissioner (Appeals) ming as income of the appellant an 705.55 lacs, being Decommissio ted by the appellant. learned Commissioner (Appeals) ming as income of the appellant an am .71 lacs, being interest cr mmissioning Fund. learned Commissioner (Appeals) ming the action of the Additional Co ing as income the following amounts reduced by the appellant from the ed during construction: nterest income (other than on surplus fund onsultancy receipts ther income otal learned Commissioner (Appeals) ming the action of the Additional Comm owing an amount of Rs.7 lacs as p diture.

The appellant submits th diture had crystallized during the pr ant to the assessment year 1998-99 diture was fully allowable as a deduc ut prejudice to Ground No.

8 above, missioner (Appeals) erred in no ction in respect of the expenditure trea d in the years to which the same relate The learned Commissioner (Appeal ming the action of the Additional Comm owing an amount of Rs.53.47 lacs un Corporation of India Ltd..

4 4413/M/2004, 43 to 4745/M/2007, Ors opment levy the learned hat a portion esearch & of a capital erred in n amount of ning Levy erred in mount of Rs. redited to erred in ommissioner which had expenditure ds) Rs.

276.71 lacs Rs.

87.70 lacs Rs.1216.96 lacs Rs.1581.37 lacs erred in missioner of prior period hat as the revious year 9, the said ction. the learned t allowing ated as prior ed to. ls) erred in missioner of nder section The le apprec appell not to 11. holdin the ap 12. confirm in hold not de 13. confirm in inc book p Sr.

No. a) Delay b) Inter c) Othe d) Provi e) Misc f) Inter bank Tota The le apprec linked therefo power exclud Explan 14. not all appell in com 15. confirm that t receive income M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O earned Commissioner (Appeals) oug ciated that the amounts were pa lant during the previous year and the be disallowed.

11.

The learned Commissioner (Appea ng that the provisions of section 115J ppellant.

12.

The learned Commissioner (Appea ming the action of the Additional Co ding that the other income of the app erived from the business of generation 13.

The learned Commissioner (Appea ming the action of the Additional Co luding the following amounts as be profits under section 115JA: Particulars Am yed payment charges 3,592.0 rest on staff loan 135.46 er interest 111.36 ision no longer required 126.08 cellaneous receipts 446.31 rest income on deposits with ks 7,031.6 al 114,42 earned Commissioner (Appeals) oug ciated that the above incomes were d to the business of generation of powe fore derived from the business of ge r.

On this basis, the above amounts ded from book profits in accord nation (iv) to section 115JA(2).

14.

The learned Commissioner (Appea lowing deduction for expenditure incu lant in earning the income of Rs.

114, mputing the book profits of the appellan The learned Commissioner (Appeal ming the action of the Additional Co the appellant had utilised the sh ed during the year for earning t e.

The learned Commissioner (Appea Corporation of India Ltd..

5 4413/M/2004, 43 to 4745/M/2007, Ors ght to have aid by the erefore were als) erred in JA apply to als) erred in ommissioner pellant was of power. als) erred in ommissioner eing part of ount in Rs. lacs 03 62 2.86 ght to have inextricably er and were eneration of were to be dance with als) erred in urred by the ,42.86 lacs, nt. ls) erred in ommissioner hare capital the interest als) erred in not ap of the 16. the confirm in mak prepar 17. have a the Pr in the 18. confirm in rais Rs.

8 March 19. confirm Rs.8,4 interes 20. withou 3. withou 3.

Briefly stated f Central Government business of generatio plants situated in In (TAPS); “Rajasthan A Power Station”( NAPS The company is gove Act, 1962.

The asse stations from the Ato and sold/distributed of which, however wa M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ppreciating the facts presented during appeal proceedings.

Without prejudice to Grounds 11 to learned Commissioner (Appeals) ming the action of the Additional Co king adjustments to the Profit and Lo red by the appellant.

The learned Commissioner (Appeals appreciated that no adjustments can ofit and Loss Account, other than thos Explanation to section 115JA(2).

The learned Commissioner (Appe ming the action of the Additional Co sing a demand for interest under sect ,46,25,483 vide the notice of dem h 8, 2001 under section 156.

The learned Commissioner (Appeal ming the levy of interest under secti 46,25,483.

The appellant denies liabi st.

Each one of the above grounds of ut prejudice to the other. facts of the case are that the t Public Sector Undertaking, on of electricity though various ndia including “Tarapur Atomic Atomic Power Station” (RAPS); S) , “Kakrapar Atomic Power Sta erned by the provisions of the essee company took over the omic Energy department and fu electricity generated to its cust as determined by the Governme Corporation of India Ltd..

6 4413/M/2004, 43 to 4745/M/2007, Ors g the course o 15 above, erred in ommissioner oss account s) ought to be made to se specified eals) erred ommissioner tion 234B of mand dated ls) erred in ion 234B of ility to such f appeal is e assessee is a engaged in the s nuclear power c Power Station” “Narora Atomic ation”(KAPS) etc.

Atomic Energy nuclear power urther developed omers, the tariff ent of India.

For the year under consid 01.12.1997 declaring brought forward loss nil income was decla was selected for scru tax Act, 1961 (in sho the assessment or 08.03.2001 u/s 143 the returned income. ed income. relief vide impugne assessee filed appeal of raising grounds as 4.

The assessee al for the first time vide of the Assessing Offic been challenged.

Ag ground on 17.11.202 filed is reproduced as 1.

The g prejud pendin 2.

The le erred 143(3) under Additi M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O deration, the assessee filed retu g income of Rs.171.41 crores, b ses, but after setting of brought ared.

The return of income filed utiny and statutory notices und ort ‘the Act’) were issued and co rder passed by the Assessi (3) of the Act, various addition .

On further appeal, the Ld.

CIT ed order dated 22.10.2003. before the ITAT (in short the ‘T s reproduced above. lso filed an additional ground letter dated 18/07/2018, wher cer in passing impugned assess ain, the assessee filed a copy of 22, and 14.06.2023.

The said ad s under: ground of appeal is independent a dice to other grounds of appeal fi ng disposal. earned Additional Commissioner of I in passing assessment order und ) without having legal and valid the Act to pass the assessment onal Commissioner of Income T Corporation of India Ltd..

7 4413/M/2004, 43 to 4745/M/2007, Ors urn of income on before set off of t forward losses, by the assessee der the Income- omplied with.

In ing Officer on ns were made to T(A) allowed part Aggrieved, the Tribunal’) by way on 23/07/2018 re in jurisdiction sment order has f said additional dditional ground and without iled earlier, Income Tax der section jurisdiction order.

The Tax lacked jurisdi section the po Officer 3.

The l Tax e sectio were Incom absen section Tax.

4.

Your a omit o add a before may b 5.

The Ld.

Counse admission of addition The relevant part of w a.

Th urged tax ha and h withou compli 120(4) the CB Comm said a of Inc procee Comm of juris Incom The A ground M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O iction to pass the assessment or n 143(3) dated 8th March 2001 and owers of performing the functions of an r. earned Additional Commissioner erred in passing assessment or on 143(3) where the assessment pr initiated by the Joint Commis me Tax.

Such order passed is bad in nce of an order transferring, jurisdic n 127 to the Additional Commissione appellants crave leave to add, alter, am or substitute the aforesaid ground of a new ground or grounds of appeal a e or at the time of hearing of the app be advised l for the assessee made oral arg nal ground and also filed writte written submissions is reproduc hat, in the additional ground, the Appe that the Additional Commissioner of ad no jurisdiction to act as its Assessin hence, the assessment order passed b ut jurisdiction.

This was beca iance with section 2(7A) read with )(b) of the Act, no authority had been BDT to either the Director General missioner or Commissioner nor by an authorities in favour of the Addl.

Comm come-tax.

Further, though the ass edings were initiated and carried on b missioner of Income-tax, there was no sdiction from him to the Addl.

Commis e-tax as required by section 127 of Appellant submits that both the a ds dealing with jurisdiction goes to th Corporation of India Ltd..

8 4413/M/2004, 43 to 4745/M/2007, Ors rder under to exercise n Assessing of Income rder under roceedings ssioner of law, in the ction under er of Income mend, vary, of appeal or at any time peal as they guments praying en submissions. ced as under: ellant has f Income- ng Officer by him is ause, in h section given by or Chief ny of the missioner sessment by the Jt. o transfer ssioner of f the Act. aforesaid he root of the m ground procee to: CIT vs (Pg No CIT vs (Pg No Invent (Bom)( Before to abo of rea procee (see t printed he cas the Pu Jain v by wh make be tak though Incom Comm the a Officer wealth On ap confirm Tribun that s Act w assess Tribun upheld Works M/s Nucle M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O matter.

It is well settled by now th d could be raised at any stage edings.

In this regard, your attention s.

Mohd.

Ayyub & Sons Agency 197 IT o.

1 of Case law Paper book) s.

Jolly Fantasy World Ltd.

377 ITR 5 o.

2 to 10 of Case law Paper book) tors Industrial Corpn.

Ltd. vs.

CIT 194 (Pg No.

11 to 15 of Case law Paper boo e the Bombay High Court, in the case ove, the assessee had challenged the assessment proceedings in second edings which was objected by the he Revenue's submissions at page d report).

Relying upon its earlier jud se of CWT vs.

N.

A.

Narielwala 126 IT unjab & Haryana High Court in Vija vs.

CIT 99 IT 349 the court held that " hich the jurisdiction of the Income-tax assessment is challenged can be al ken in an appeal before the Tribu h such a ground was not taken b e-tax Officer or the Appellate A missioner.

The facts in that case were assessment year 1961-62, the W r, acting under section 19A, had asse h ofthe deceased in the hands of the ppeal, the Appellate Assistant Comm med the assessment order.

On appe nal, a new ground was taken for the f section 19A was introduced in the W with effect from April 1, 1965, sment was, therefore, without jurisdic nal entertained the ground and o d the order of the Tribunal.

In Uga s Ltd. v.

CIT [1983] 141 IT 326, ouT c Corporation of India Ltd..

9 4413/M/2004, 43 to 4745/M/2007, Ors hat such e of the is invited T 637 (All) 530 (Guj.) 4 IT 548 ok) e referred e validity round of Revenue 3 of the dgment in T 344 and ay Kumar "a ground Officer to llowed to unal even efore the Assistant e that for Wealth-tax essed the executor. missioner eal to the first time Wealth-tax and the ction.

The our court ar Sugar court was faced questi consid jurisdi passin though of app jurisdi the sa Comm judgm ITR 3 comme that (h "The q an ord such Incom part of of the Comm is alw before (emph In CIT [1983] CWT v and he ".. tha of the issued Decem becaus section place. ion place. reasse invalid M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O with a similar problem.

In this c on of the Tribunal's jurisdictio dered at length.

It was held that the T iction under section 254 was rest ng of orders on the subject-matter of th h within the four corners of the subje peal.

However, within the four corner iction, the Tribunal was clothed wit ame powers as those of the Appellate A missioner except that of enhancem ment in CWT v.

Narielwalla (N.A.) (19 344 (Bom) was noticed and not a ented upon.

It was distinguished o headnote) : question as to the initial jurisdiction in der would stand on a different footin cases the question of Jurisdiction e-tax Officer would always be pres f the subject-matter of the appeal at a appeal, either before the Appellate A missioner or the Tribunal, as, such ju ways presumed to be existing in an e the passing of the order." hasis supplied).

T v.

Belapur Sugar and Allied Indus ] 141 IT 404, our court followed the de v.

Narielwalla (IN.A.) [1980] 126 ITR 3 eld (headnote) : at the earlier notices issued under sec Income-tax Act, 1961, that is, the thre d on March 31, 1965, March 31, 19 mber 10, 1965, respectively, were se by that time the determinatio n 163 of the said Act had not prope Since these notices were inva essment done in pursuance thereof d." Corporation of India Ltd..

10 4413/M/2004, 43 to 4745/M/2007, Ors case, the on was Tribunal's tricted to he appeal ect-matter rs of that th almost Assistant ment.

The 980] 126 adversely observing n making ng, as in n of the sent as a all stages Assistant urisdictlon authority tries Ltd. ecision in 344 (Bom) ction 148 ee notices 965, and e invalid, on under rly taken alid, the was also Thus, taken the jur be tak though Officer We fin R.J.

S 1552, raised "This g raised went point, be rais Again, Electri Suprem "It is s the ma The ap allowe ground be allo costs. llo costs." The G very v Tribho CIT | High (1982] We, th jurisdi can be Additi when M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O so far as our court is concerned, i to be settled law that a point which risdiction of the assessment can be a ken in an appeal before the Tribu h it was not taken before the In r or the Appellate Assistant Commissio nd that the Supreme Court also, in th ingh Ahluwalia v.

State of Delhi, AIR at p.

1553, held in the context of new d before it for the first time: ground of challenge had, of course, d in either of the two courts below bu to the root of the case, being a juris we considered it just and proper to a sed." , in the case of G.M.

Contractor v. icity Board, AIR 1972 SC 792 at p. me Court held as under : stated that this ground goes to the ve atter but was not raised before the Hi ppellants objected to this fresh grou ed to be taken up, but we consider tha d goes to the very root of the matter, owed after the appellants are compen " Gujarat High Court has, of course, t view in its two decisions in CIT v. ovandas [1975) 100 ITR 734 and P.

V.

1978] 113 ITR 22.

Indirectly, the A Court in CIT v.

Hari Raj Swarup a ] 138 ITR 462, has also taken the sam herefore, hold that a ground by w iction to make assessment itself is ch e urged before any authority for the fir onal ground raising legal issue can b the facts are available on record: Corporation of India Ltd..

11 4413/M/2004, 43 to 4745/M/2007, Ors it can be h goes to allowed to unal even ncome-tax oner. he case of 1971 SC w ground not been ut since it sdictional allow it to .

Gujarat 793 the ery root of igh Court. und being at as this it should nsated by taken the Nanalal V.

Doshi v.

Allahabad and Sons me view. which the hallenged rst time." be raised b.

The the H Therm 16 to of Ind Casela IT 722 Specia Cargo (Pg No an app legal i Issue Comm The f groun issued asses notifi the D Comm 143(2 by the doubt notifi respec part o could Asses of hea that th Incom range' com range' range particu jurisdi region thereo grante Incom the as M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O e Appellant next relies upon the judge Hon'ble Apex Court in the case of mal Power Co.

CIT 229 ITR 38 18 of Caselaw Paper book), Jute Co ia Ltd. vs CIT 187 IT 688 (Pg No.

19 aw Paper book) and CIT vs.

S.

Nellia 2 (Pg No.

25 to 27 of Caselaw Paper b al Bench order of the Tribunal in the c Global Logistic Ltd Vs DCIT (21 Taxm o.

28 to 47 of Caselaw Paper book) to pellant can raise an additional groun ssues when the necessary facts are o relating to exercise of jurisdiction by missioner of Income-tax raises a leg facts as necessary for disposal a nds would include the relevant d by the Assessing Officer in the c sment proceedings as well ications/ directions issued by the irector General or Chief Commiss missioner.

The notices under 2) and 142(1) of the Act have been e Assessing Officer and there can b t that they formed part of the reco ications or directions issued ctive authorities, if any, should a of the record, as otherwise, the A d not have exercised the jurisdictio ssing Officer of the Appellant.

In th aring before the Tribunal, the Ld.

DR e he designation of the Addl.

Commis e-tax shows that he was a part of th '.

According to him, an Officer of th is directed to pass an assessment o ular case.

He does not exercise iction over assessee's located in a p n or assessee's or cases forming a clas on, it is essential that the authority ed in favour of the Addl.

Commiss e-tax, in the present case, should be ssessment record.

The record of w Corporation of India Ltd..

12 4413/M/2004, 43 to 4745/M/2007, Ors ements of National 83 (Pg No. orporation 9 to 24 of appan 66 book) and ase of All mann 429) urge that nd raising on record. the Addl. gal issue. as these notices course of as the CBDT or sioner or section n issued be no ord.

The by the also be a Addl. be a Addl.

CIT on as the he course explained ssioner of he special he special order in a general particular ss.

Based y, if any, sioner of a part of which the releva assess not m before means it wou produc the a that, issue of th admit Addit not h CIT(A) c.

Acc Bomba Ltd. vs Paper Cemen Casela also b eviden the pa satisfi ground author know AO, w passe Prior t case, 28.03.

22.10. before raising Hence before M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ant facts should form part of should sment record or the appellate record ean only the facts as placed by eith e the Tribunal.

If a view is taken tha s facts available only before the Tribun uld be extremely simple for a party ce the relevant records and thereby additional ground.

The Appellant since the additional ground raises for which the necessary facts for e assessment record, the same tted. tional ground relates to issue whic have been raised before the A.O ). cording to the judgement of the Full ay High Court in Ahmedabad Electr s.

CIT 199 IT 351 (Pg No.

48 to 58 of book) and the Division Bench in nt Ltd. vs.

ACIT 408 IT 500 (Pg No.

59 aw Paper book), an additional grou be permitted to be raised in a cas nce is to be examined which is not on arty seeking to raise the additiona ies that for good and sufficient reas d could not be raised before th rity.

In the present case, the Appellan of the issue concerning the jurisdicti when it came across order dated 27 d by the Tribunal in the case of Tata S thereto, it was not aware of this iss the assessment order was pas .2001 and the appellate order by the .2003.

Since it was not aware of thes e, there is good and sufficient caus g the same before the AO and th e, it was fully justified in raising t e the Tribunal.

Corporation of India Ltd..

13 4413/M/2004, 43 to 4745/M/2007, Ors d be the d.

It does her party at it only nal, then, to not to frustrate submits s a legal rms part may be ch could O or the Bench of ricity Co. ricity Co. f Caselaw Ultratech 9 to 68 of und could e where, record, if al ground sons, the he lower nt came to ion of the 7.11.2017 Sons Ltd. ue.

In its ssed on CIT(A) on se issues e for not he CIT(A), the same No lim d.

Th written before hearin this st admitt of the ("the A with t suppo memo exercis party have s ground power There the Ru which In the allowe comme test ha regard Nation ITR 68 book); Shilpa (Raj (P e.

The DIT (In of Cas Tanna (Pg No upon b additio submi M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O mitation for raising of additional g he other issue as raised by the Re n submissions dated 14.06.2019 filed e the Tribunal as well as in the c ng is that raising of an additional g tage suffers from laches and ought ted.

The Appellant submits that as pe Income-tax (Appellate Tribunal) Rul Appellate Tribunal Rules"), an appe the leave of the Tribunal urge or be rt of any ground not set forth randum of appeal.

The only limit se of such powers by the Tribunal is who may be affected by its decisio sufficient opportunity of being heard d.

This is the only limitation on ex rs to admit additional ground by the is no time limit prescribed either in t ules or the Appellate Tribunal Rule an additional ground could be raised ese circumstances, an appellant sh ed to raise an additional ground b encement of the hearing of the appea as been fulfilled in the present case.

In d, reliance is placed on: nal News Print and Paper Mills Ltd. vs 88 (MP) (Pg No.

69 to 70 of Casela a Associates vs.

ITO (2004) 135 Tax Pg No.

71 to 73 of Caselaw Paper book e judgment in the case of Dr.

Cha nvestigation) 336 ITR 533 (All) (Pg No. selaw Paper book) and Kishore Jag a vs JDIT (2018) 1998 Taxman.com 2 o.

86 to 90 of Caselaw Paper book) by the Ld.

DR in support of his claims onal ground suffer from laches, the A its that they were concerned with writ Corporation of India Ltd..

14 4413/M/2004, 43 to 4745/M/2007, Ors ground. rs ground. evenue in d by them course of ground at not to be er Rule 11 les, 1963 llant can heard in h in the tation on s that the on should d on that xercise of Tribunal. the Act or es within d. hould be efore the al, which n this s.

CIT 223 aw Paper xman 277 k) auhan vs.

74 to 85 gjivandas 235 (Bom) )as relied s that the Appellant t petitions before High may b may r reason Both refuse petitio attenti Bomba of the have b from t petitio obliged writ ju enable an adv equita petitio enoug retaine exped order f a litig discre jurisdi to get 1963 obliqu be di dismis delay As sta require Appell an ad circum additio delaye M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O e the High Courts.

That writ jurisdic Court is discretionary.

Even though be entitled to a particular relief, the w refuse to exercise its jurisdiction for ns not necessarily dealing with the the aforesaid cases are where th ed to exercise its writ jurisdiction as ons were delayed.

In this regar ion is invited to para 8 of the judgme ay High Court, wherein it is held " In aforesaid discussion, no writ petition been brought by relying on the comm the Revenue.

We are unable to agree oner for the simple reason that this Co d to entertain belated and stale cla urisdiction is not meant to confer b e litigants who sleep over their rights vantage for themselves.

The writ juris able and discretionary and if people oner, who is a businessman and h to know as to how monies, ed illegally, have to be recovered prom itiously.

He does nothing despite a fa from this Court for more than a deca gant does not deserve any relief tionary and equitable jurisdictio iction is extraordinary as well.

It is n over the bar prescribed in the Limita for bringing a suit either.

This indi e way of seeking a discretionary reli iscouraged.

The writ petition is, t ssed on the ground of maintainab and laches. nd laches." ated above, in the present case, the ement under the Act or the Rules late Tribunal Rules for the time with dditional ground could be raised. mstances, the Appellant submits that onal ground need not be dismi ed.

15 4413/M/2004, 43 to 4745/M/2007, Ors ction of a h a party writ court r various e merits. he Court s the writ rd, your ent of the n the light could munication with the ourt is not aims.

The benefit or to derive sdiction is e like the prudent allegedly mptly and avourable ade.

Such f in our on.

The not meant ation Act, irect and ief has to therefore, bility and ere is no s or the hin which In these the said issed as f.

As incum ground came ground 27.11.

3475/ Paper notice obtain Accoun to app additio The sa said Appell was n come was p therefo additio and m g.

Sim Appell follow i.

Tat ITD TR of ii.

Tata ITA vid 6 o Son an 27 11 iv.

Ta N M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ssuming without admitting that bent on the Appellant to file the a d within a reasonable time, it submi across the issue raised in the a d through the Tribunal order .2017 in the case of Tata Sons Ltd / Mum/ 2006) (Pg No.

91 to 141 of book) dated 27.11.2017 which cam while preparing for the present appe ning advise on the same from the C ntants and the Counsel who have bee pear in the mater, it was decided onal ground should be filed. aid ground has been filed on 23.07.2 issue could not have been raised lant either before the AO or the CIT not aware of the same at those stage to know of this issue only when th pending before the Tribunal.

The A fore submits that the delay, if any, in onal ground is on account of sufficie may be condoned. milar additional grounds as raised lant have been admitted by the Tribun ing cases: ta Sons Ltd. vs.

ACIT (AY 2001-02)(20 D 450) (MUM - RI)(see para 3.11 to 3.16 on Pg No.

15 Caselaw Paper a Communication Ltd. vs.

ACIT (AY 20 A No.7071/Mum/2005 and 1108/Mu de its order dated 30.06. ted 30.06.2017)(see pa on Pg No.

165 to 167 of Caselaw Pa ns Ltd. vs.

ACIT (AY 2002-03) in ITA d 3745 /Mum/2006 vide its orde 7.11.2017 )(see para 12 to 17 on Pg N 9 of Caselaw Paper book) ; ta Sons Ltd. vs.

ACIT (AY 2004-05 No.2639/Mum/2009 vide its orde Corporation of India Ltd..

16 4413/M/2004, 43 to 4745/M/2007, Ors it was additional its that it additional r dated d. (193 & Caselaw me to its eal.

After Chartered en briefed that the 2018.

The d by the T(A) as it es.

It has he appeal Appellant filing the ent cause d by the nal in the 016) (162 51 to 152 002-03) in um/2008 ara 4 and aper Tata Nos.

193 er dated No.

108 to 5) in ITA er dated 1 C v.

Ta 5 pa vi.

Tat a d 2 In all were Tribun in rais ten ye ground are ex record issues positio submi admitt accord 6.

On the contrar opposed admission submission of the R under: “3.

In this resp kind notice of t in the case 4493/Mum/20 similar circums the assessee t holding that w assessee that the transfer an and the assess making a wild request that th M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 1.03.2009 )(see para 2 on Pg No.

211 Caselaw Paper book) Tata Sons Ltd vs.

ACIT (AY 2005-06 090 / Mum/2012) dated 16.08.20 ara 4 on Pg No.

281 of Caselaw Paper ta Communication Ltd vs.

ACIT (AY nd AY 2004-05 ITA No.3972/ Mum ated 16.08.2019 (see para 3 to 3.3 o 41 to 246 of Caselaw Paper book) . the aforesaid cases both the aforesa raised as additional ground bef nal.

Further in each of these cases, th sing of the additional ground was in ears.

The Tribunal has held that the a d raises legal issue for which necess xpected to be available in the ass ds.

The Tribunal has also held that s go to the root of the matter.

Since on is existing in the present case, the A its that the additional grounds ted and adjudicated by the Trib dance with law.” ry, the Ld.

Departmental Repr of the additional ground.

Revenue filed by the Ld. by the Ld.

DR is pect, the undersigned would like to bring t the decision of the Hon'ble ITAT, 'L' Bench, M of M/s Stock Traders Pvt Ltd in ITA 003 and ITA No.

4737/Mum/2003 wherein stances, the similar additional grounds rais therein was dismissed by the Hon'ble Bench when there is no information in possession the internal procedure of the department reg nd posting of officers has not been complie see in the said case after a lapse of 15 year d guess and hence did not accept the asse e assessment deserve to be quashed in as m Corporation of India Ltd..

17 4413/M/2004, 43 to 4745/M/2007, Ors to 212 of 6 (ITA No 019 (see r book).

2003-04 m/2007) ) on Pg No. aid issues efore the he delay, excess of additional sary facts sessment the said e, similar Appellant may be bunal in resentative (DR) The relevant s reproduced as to your Mumbai A No. n under sed by h after of the garding d with rs was essee's much as the assessing o the Hon'ble IT onwards of th kind notice tha the above refer assessee's ple Hon'ble Bomba ACIT (76 taxm Tribunal in the present case.

S deemed fit ma Bench.” 6.1 The Ld.

DR fu (undated) by his p additional ground, re The assessee case requesting this case.

The grounds raised the facts which and adjudicate the jurisdiction issue notice u assessment Or view that the valid jurisdictio the I.T.

Act a assessment ord also challenged its view, the no is a lower auth orders of ITAT Communication outset, it is su not admissible.

2.1.

Th 08.03.2 the ass being b Bench assesse has rak has no M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O officer did not have authority of law.

In this re TAT has made detailed discussion in Pa e above referred order.

It is also brought t at while dismissing the similar additional gro rred case, the Hon'ble Tribunal has consider ea and also their reliance on the decision ay ITAT in the case of M/s Tata Sons Limit mann.com 126). .com 126).

Since the finding of the H e above referred case is directly applicable So you are requested to go through the same ay kindly be brought to the notice of the H urther referred to a written s predecessor opposing the adm elevant part of which is reproduc has made an application in the above men g for admission of additional grounds of app e assessee has stated that since the add d is purely a question of law and is dependen h are already on record, the same may be ad ed.

The said additional grounds of appeal cha n of the Additional Commissioner of Income u/s.

143(2) and also to pass the subs rder U/s 143(3).

In stating so, the assessee is Addl.

CIT has not established that he poss on conferred on him in terms of Section 120(4 nd hence in the absence of such an orde der passed by him is bad in law.

The assess d the validity of assessment proceedings, si otice u/s.

143(2) has been issued by the ACI hority.

The Assessee has heavily relied on v T passed in the case of TATA Sons Limited, ns Limited, TATA power Limited and others. ubmitted that the additional grounds of appe .

Some of the reasons are as under: he assessment in this case was complet 2001 and the appeal before ITAT was prefer sessee in 2004, and this ground of the asses bad in law has been taken first before this H in 2018.

Thus, for period of almost 14 yea ee has blissfully chosen to ignore this aspe ked up this issue only now.

This unexplained ot been backed or supported by any affida Corporation of India Ltd..

18 4413/M/2004, 43 to 4745/M/2007, Ors espect, ara 17 to your ound in red the of the ted vs.

Horible in the and if Hon'ble ubmission filed mission of the ced as under: ntioned peal in ditional nt upon dmitted allenge Tax to equent s of the sesses 4)(b) of er, the se has ince in IT who various TATA At the eal are ted on rred by ssment Hon'ble ars the ect and d delay avit or reasons differen 2.2 The of Tata and ne relying, another 11.07.2 2.3 Th jurisdic the lach assertin against 2. against 2.4 Thi the Add before right.

If change taken b the ver legislat which w when th complex hierarch the foru 2.5 The questio is being assesse records 2.6 The various has bee Additio followed on meri 3.1 On merits Assessee are 120(2) and 120 "Section M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O s and mechanical reliance has been plac nt case laws. e decisions of coordinate Bench of ITAT in th a Sons Ltd Tata Communications Ltd etc da ear 31.10.2016, on which the assessee is h has already been considered and not follow r Bench of ITAT in ITA No: 4493/Mum/2003 2018.

A copy of this order is attached. (PB-III) he claim of the assessee of challengin ction after almost 14 years is therefore barr hes, being in the nature of unreasonable de ng the claim which has prejudiced the t whom relief is sought. is ground of appeal challenging the jurisdic dl CIT to pass orders U/s 143(3) was not the CIT(A) and is not admissible as a ma If such additional grounds, which are lik the complexion of the case, are permitted before higher judicial forums then that would ry scheme of appellate forums conceived b ure.

The ITAT is supposed to decide only were the subject matter of first appeal, esp he fresh ground of appeal is going to challen xion of entire appeal, otherwise the entire j hy below would become infructuous, in this um of CIT(A). e issue of jurisdiction being raised now is a n of fact and law and not a pure question of g claimed by the assesse.

The issue raised ee would require examination of asses s and is likely to vary with each case. e Department has filed a judicial paper book s case laws in which the fact, as enumerated en the ratio decidendi. (Legal Submissions a nal Grounds taken by "a" filed on 14.06 d by Legal PB dated 20.08.19 showing tha its the ground is not maintainable) also, the grounds proposed to be raised b not admissible.

The provisions of Section 1 0(4) of the Income Tax Act are reproduced as u n 120.

Corporation of India Ltd.. ndia Ltd..

19 4413/M/2004, 43 to 4745/M/2007, Ors ced on he case ated on heavily wed by 3 dated ng the red by elay in party ction of taken atter of kely to d to be defeat by the issues pecially nge the judicial s case mixed law as by the ssment k citing above, against 6.2019 at even by the 120(1), under: (1) Inco powers on, or, a or unde Board perform authori Explana declare higher i the pow authori the Boa sub-sec (2) The authoris writing the fun authori (3) …… (4) With and (2) subject may be (a) auth Genera function assigne (b) emp Genera Commis to issue conferre Assessi specifie or class exercise an Add Director referenc made th to be Additio M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ome-tax authorities shall exercise all or any s and perform all or any of the functions con as the case may be, assigned to such authori er this Act in accordance with such directions may issue for the exercise of the power mance of the functions by all or any of ties. ation.—For the removal of doubts, it is h ed that any income-tax authority, being an au in rank, may, if so directed by the Board, ex wers and perform the functions of the inco ty lower in rank and any such direction issu ard shall be deemed to be a direction issued ction (1). directions of the Board under sub-section (1 se any other income-tax authority to issue ord for the exercise of the powers and performa nctions by all or any of the other inco ties who are subordinate to it. ………………… hout prejudice to the provisions of sub-sectio , the Board may, by general or special orde to such conditions, restrictions or limitatio e specified therein, — horise any Principal Director General or D al or Principal Director or Director to perform ns of any other income-tax authority as m ed to him by the Board; power the Principal Director General or D al or Principal Chief Commissioner or ssioner or Principal Commissioner or Commis e orders in writing that the powers and fun ed on, or as the case may b case may be, assigned t ing Officer by or under this Act in respect ed area or persons or classes of persons or in ses of income or cases or classes of cases, sh ed or performed by an Additional Commissio ditional Director or a Joint Commissioner or a r, and, where any order is made under this c ces in any other provision of this Act, or in an hereunder to the Assessing Officer shall be d references to such Additional Commission nal Director or Joint Commissioner or Joint D Corporation of India Ltd..

20 4413/M/2004, 43 to 4745/M/2007, Ors of the nferred ities by as the rs and those hereby uthority xercise me-tax ued by under 1) may ders in ance of me-tax ons (1) er, and ons as Director m such may be Director Chief ssioner nctions to, the of any ncomes hall be oner or a Joint clause, ny rule deemed ner or Director by who perform requirin shall no 3.2 Subsequen Department in orders U/s 14 this appeal in i is to be noted t the Commissi notifications em and functions areas or person The various no also summariz additional grou initio. (i) In exercise issued Notifica the Commissio assigning juris (ii) The Comm instant case, Notification, pa 01.08.2001 as 3(3) Mumbai)/J functions unde to deduction an (iii) The Board 17.09.2001, in JC'sIT who ha C'sIT in subse shall exercise t in respect of ju (Page 13 of PB- 3.3 Upon plain have been atta legal requireme of the I.T.

Act. the Addl./Jt.

C of the Assessi specified.

All th available.

It ap the said Notif M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O om the powers and functions are to be exerci med under such order, and any provision of th ng approval or sanction of the Joint Commis ot apply." nt to the Cadre restructuring of the Incom 2001, Addl CIT's/JCIT's were empowered to 3(3).

The assessee has challenged this prac its additional ground of appeal. of appeal.

In this connec that the Board had issued various Notification ioner of Income Tax had issued subs mpowering the Addl CIT/JCIT to exercise all p of the Assessing Officers, in respect of ter ns or classes of income or cases or classes of otifications are attached as an enclosure an zed herein which would leave no doubt th und being raised by the assessee is infructuo of its powers U/s 120(1) and 120(2) the ation in S.O 732(E) dated 31.07.2001 auth oners of Income Tax to pass jurisdiction diction to the authorities below. (Page 14 of PB missioners of Income Tax, CIT-Ill, Mumbai in view of the delegated powers vide assed order in F.No: MC-IlI/JURIS/2001-02 signing jurisdictions to AddIC'sIT (Addl CIT, JC'sIT to exercise the powers and perform er the Income Tax Act except the functions re nd collection of tax at source. (Page 08 of PB-II issued another Notification No.

267 /2001 n exercise of powers U/s 120(4)(b) directing th ave been assigned jurisdictions by the resp equent to Notification No 732(E) dated 31.07 the powers and functions of the Assessing O urisdiction assigned to them by the respective -I) n reading of the above-mentioned Notification ached as an enclosure, it is crystal clear th ents as envisaged u/s.

120(1), 120(2) and 12 were satisfied and jurisdiction was confer CIT to exercise all powers and perform all fun ng Officer in respect of cases or classes of hese Notifications are public documents and ppears that the assessee has omitted to take ifications and therefore as stated above, Corporation of India Ltd..

21 4413/M/2004, 43 to 4745/M/2007, Ors ised or his Act ssioner me Tax o pass ctice in ction, it ns and equent powers rritorial f cases. nd are hat the ous ab Board orizing orders PB-I) in the above dated Range all the relating II) dated hat the pective 7.2001 Officers e C'sIT. ns that hat the 20(4)(b) rred on nctions f cases widely note of it is reiterated that infructuous ab 6.2. us ab 6.2.

Thus, the ld D ground mainly for th been filed with inord without any affidavit ground raised being examination and inve on record of the Tribu 6.3.

We have heard r relevant material on the additional groun filed by the assessee has been raised befo i.e. after a lapse of al assessee seeks to ch Commissioner of Inco capacity of Assessing Additional Commiss assessment order, w said assessment orde course of the assess proceedings, the ass Assessing Officer.

T M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O t the additional ground of appeal being rai initio and does not merit admittance.” DR has opposed the admissio he reasons that, firstly, additio inate delay of more than 14 yea explaining the delay, secondly mixed question of law and fa estigation of fresh facts, which a unal as well as record of Assessi rival submission of the parties a record.

As regards the issue of nd, it is undisputed that this a e in the year 2004 and the ad ore the Tribunal for the first tim lmost of 14 years.

In the additio allenge validity of the jurisdictio ome-tax in passing the assessm g Officer.

The assessee is cont sioner of Income-tax, who h was not having authority of law er.

The Revenue is contending sment proceedings or in subse sessee has never objected jur The Ld DR submitted that jur Corporation of India Ltd..

22 4413/M/2004, 43 to 4745/M/2007, Ors ised is on of additional onal ground has ars and that too y, the additional acts and require are not available ing officer. and perused the f admissibility of appeal has been dditional ground me in year 2018 onal ground, the on of Additional ment order in the ending that the has passed the for passing the that during the equent appellate isdiction of the risdiction of the case has been trans officer as per the p Central Board of D passed by the lower orders including adm after such a long tim orders passed are pa in view of the variou challenging the validi any stage of the appe 6. he appe 6.4 As far as adm proceedings is concer NTPC Ltd.

229 IT circumstances, an ad Tribunal.

The judgme followed by the Tr decisions relied upon of the Hon’ble Suprem 7.

The view that the the appeal before th narrow a view of the v.

Anand Prasad (D C.IT. v.

Cellulose Pro have the discretion But where the Tri of law arising fr M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O sferred from time to time with prevalent circular/notification Direct Taxes (CBDT) and con authorities and it is difficult to ministrative orders of their trans me.

Whereas according to the art of the records of the assessm us decisions cited, the assesse ity of the jurisdiction of the Asse ellate proceedings. mission of additional ground d rned, the Hon’ble Supreme Cou TR 383(SC) has laid down a dditional ground could be adm ent of Hon’ble Supreme Court (s ribunal in various decisions n by the parties before us.

The me Court (supra) is reproduced e Tribunal is confined only to issues he Commissioner of Income-tax (Appe e powers of the Appellate Tribunal [vid Delhi), C.I.T. v.

KaramchandPremchan oducts of India Ltd. .

Undoubtedly, the to allow or not allow a new ground ibunal is only required to conside from the facts which are on re Corporation of India Ltd..

23 4413/M/2004, 43 to 4745/M/2007, Ors h the Assessing issued by the nsequent orders o trace all those sfer and posting assessee those ment, therefore, ee is eligible for essing Officer at during appellate urt in the case of as under what mitted before the supra) has been including the relevant finding as under: arising out of eals) takes too de, e.g., C.I.T, nd P.

Ltd. and e Tribunal will d to be raised. er a question ecord in the assessment procee not be allowed to question in order to 6.5 Thus, according any additional grou involved in the addi question of law shou the assessment proc fresh facts is requir same may not be adm Stock Traders p Ltd been raised by the as Tribunal admitted th For ready reference, asses nce, assessee and the su under: 12.

The reads a f 13.

For made th M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O edings we fail to see why such a qu be raised when it is necessary to correctly assess the tax liability of an g to the Hon’ble Supreme Cou und, firstly, the question of itional ground raised and seco uld arise from the facts which a ceedings.

If investigation or exa red for admitting an additiona mitted by the Tribunal.

In the c d (supra), also identical additio ssessee after lapse of substantia he additional ground in identical , said additional ground raised ubmission of said assessee are e assessee has also filed additional grounds. as under: On the facts and in the circumstances of the in law, it is submitted that the Addl.

CIT di valid authority to perform and exercise the p functions of an Assessing Officer, as per the of section 2(7)(a) read with section 120(4)(b) and therefore, the above mentioned assessm which has been passed without authority of be treated as bad in law, and be quashed. r admission of additional ground, the ass he following submissions: For the captioned AY, an order under sectio the Income-tax Act, 1961 ('Act), was pass Corporation of India Ltd..

24 4413/M/2004, 43 to 4745/M/2007, Ors uestion should consider that assessee. rt for admitting law should be ondly, the said are on record in amination of the al ground, then case of ACIT Vs onal ground had al period but the l circumstances. d by concerned e reproduced as .

The same e case and id not have powers and e provisions of the Act, ment order, f law, may sessee has n 143(3) of sed by the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Additional Commissioner of Income-tax, Spe 31.

Mumbai (Addl.

CIT Mumbai on 22 March wish to humbly submit that the Addl. the Addl.

CIT M not have valid authority to perform and ex powers and functions of an Assessing Offic the provisions of section 2(7A) read wi 120(4)(b) of the Act and therefore, the above assessment order, which has been passe authority of law, shall be treated as bad in la quashed.

In this regard, we wish to place reliance on th of the Hon'ble Mumbai Bench of the In Appellate Tribunal (Mumbai ITAT) in the ca Sons Ltd v ACIT [2016] 76taxmann.com 126 Trib.), wherein the Hon'ble Mumbai ITAT held ..

It is well settled law thatjurisdictional required to be fulfilled by the Assessing Offic performed strictly in the manner as h prescribed and if it has not been done in the prescribed under the aw, then it becomes nu eyes of law.

Supreme Court in the case of CI M.H.

Ghaswala. [2001] 252 ITR 1/119 Ta ofaseeygettictf it is a normal rule of constr when a statue vests certain powers in an a be exercised in a particular manner, then tha is bound to exercise it only in the manner p the statute only.

It is clear that impugned assessment order passed without authority of law inasmuch a has not been able to demonstrate that the Commissioner of Income tax who had p assessment order had valid authority to pe exercise the powers: and functions of an Officer of the assessee and to pass the assessment Otder.

Under these circumsta same is held as nullity and, therefore, the assessment order is quashed having bee without authority of taw." We would also want to refer to the observation of the Honble Mumbai ITAT relevant for the Appellant's case:: "No order can be sustained in the eyes of author does not have requisite sanction of an order does not possess requisite stren eyes of law and void ab initio, then it will Corporation of India Ltd..

25 4413/M/2004, 43 to 4745/M/2007, Ors ecial Range h 2001. ge h 2001.

We Mumbai did xercise the cer, as per ith section -mentioned ed without aw, and be he decision ncome Tax ase of Tata 6 (Mumbai - d as under: conditions cer must be have been manner as ullity in the IT v.

Anjum axman 352 ruction that authority to at authority provided in r has been as revenue Additional passed the erform and Assessing impugned ances, the e impugned en passed following T which is f law if its the law.

If ngth in the remain so f f M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O even if there is acquiescence or participat assessee in the proceedings carried out. by frame the assessment order.

It is well settle consent of the assessee cannot confer jurisd assessing officer who lacked jurisdiction law." A similar view was taken by the Hon'ble Mu in the case of Tata Communication Lt 6981/Mum/2005) and Tata Sons Limited (ITA & 3745/Murn/2006).

Given that the aforesaid decisions wer pronounced, based on the facts of our case, attempt to file the enclosed additional ground in the captioned Appeal with a request that t may please be adjudicated by the Hon'ble Be The additional ground raised herein go to th of the matter and deal with the very jurisd authority of the Assessing Officer to assessment order.

Therefore, this groun admitted in the interest of substantial ju especially when the same is raised in a manner without indulging in delaying tactics Further, the Appellant wishes to place relia following decisions wherein it has been he additional ground of appeal can be raised are on record: • Jute Corporation Of India Limited 1 (SC) • National Thermal Power Co.

Limit 229 ITR 383 (SC) • Ahmedabad Electricity Co.

Limite 351 (Bom) (FB) • Pruthvi Brokers & Shareholders Pv ITR 336) (Bom) • Ramco Cements Ltd (373 ITR 146) (M • Mahindra & Mahindra Ltd (30 SOT SB) In view of the above, we request Your H kindly admit our additional ground of ap oblige by adjudicating the same on merits.

26 4413/M/2004, 43 to 4745/M/2007, Ors tion by the y the AO to ed law that iction to an under the umbai ITAT td. (ITANo.

TA Nos.

193 re recently we hereby d of appeal this ground ench. he very root diction and pass the nd can be ustice and a bonafide . ance on the ld that the if the facts 87 ITR 688 ted Vs.

CIT d 199 ITR vt Ltd (349 Mad) T374) (Mum Honours to appeal and 14.

Upo said ca are adm 6.6 We note that i circumstances are id admitted for adjudica 7.

Regarding merit o that the notice unde for initiating scrutin officer having design whereas the assessm the Assessing off Commissioner of I Additional Commissi as an Assessing Offic being without author a chart of events in reproduced as under Sr.

No.

1.

30.11.1998 2.

15.12.1998 3.

16.08.2000 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O on careful consideration on the touch stone of ase law, the additional grounds filed by the mitted.” in the instant case before us dentical, hence, the additional g ation of additional ground, the asse er section 143(2) of the Act dat ny proceedings was issued by nation of Joint Commissioner ment order has been passed on fficer having designation Income-tax.

According to the ioner of Income-tax was not au cer and therefore the assessme rity of law, is void ab-initio.

The chronological order, relevant p : The Appellant filed its return of inco year 1998-99 declaring NIL income.

Th Assessing Officer as mentioned in income was Joint Commissioner of Inco The Appellant's return of income fo 1998-99 was selected for scrutiny by is section 143(2) of the Act by the Jt Income-tax (see page 1 of paper book-I) The Jt.

Commissioner of Income-tax i section 143(2) and 142(1) of the Act dir Corporation of India Ltd..

27 4413/M/2004, 43 to 4745/M/2007, Ors f the above e assessee also facts and ground raised is essee submitted ted 15/12/1998 y the Assessing of Income-tax, 08/03/2001 by of Additional e assessee, the uthorised to act nt order passed ld. passed ld. counsel filed part of which is ome for assessment he designation of the the said return of ome tax or assessment year ssue of notice under t.

Commissioner of . issued notice under recting the Appellant 4.

08.03.2001 5.

22.10.2003 6.

12.01.2004 7.

23.07.2018 8.

24.07.2018 30.08.2018 26.10.2018 9.

08.02.2019 10.

11.04.2019 7.1 For assailing th Commissioner of Inc assessee firstly, refe been amended by th from 01.06.1994 an Assessing Officer un exercise or perform a on or assigned to Counsel submitted t M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O to produce certain information in c assessment for the assessment year 1 to 4 of paper book-II).

The Addl.

Commissioner of Incom assessment order under section 1 determining its total income as per th of the Act at Rs.

Nil after allowing set of losses and book profits under section Rs.132,59, 12,000.

The CIT(A) disposed of the Appellant's assessment order for assessment ye allowing the same.

Aggrieved by the appellate order o Appellant filed an appeal before the Trib The Appellant has filed additional g Tribunal including an application for same.

The Appellant filed three letters with th requesting for information in con additional grounds of appeal.

The Appellant made its RTI application with respect to jurisdiction of the Addit of Income-tax to pass the assessment o The Appellant filed appeal against n application dated 08.02.2019. he assessment order passed by come-tax, before us, the Ld.

C erred to section 2(7A) of the A he Finance Act, 2007 with retr nd the Addl.

CIT has been de nder section 2(7A) r.w.s.

120(4)( all or any of the powers or func an Assessing Officer under th that as per section 120(4)(b) Corporation of India Ltd..

28 4413/M/2004, 43 to 4745/M/2007, Ors onnection with the 1998-99(see pages 2 me-tax passed the 143(3) of the Act he regular provisions ff of brought forward 115JA of the Act of s appeal against the ear 1998-99 partly of the CIT(A), the bunal. the bunal. grounds before the r admission of the he Assessing Officer nnection with the seeking information tional Commissioner order. non-response of RTI y the Additional Counsel for the Act , which has rospective effect efined to be an (b) of the Act to ctions conferred he Act.

The Ld. of the Act, the CBDT has to issue Income-tax (DGIT) or Commissioner of Inc that the powers and Assessing Officer und the Addl.

Commissio that in the case of th the CBDT to the co issued from the sa Additional Commissi as an Assessing Off order passed by th illegal and bad in law has time and again 26.10.2018 requeste jurisdiction orders p and also filed an ap Information Act, 200 the assessee preferre Commissioner of In despite efforts made respect of jurisdiction to the assessee , authorization/transfe M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O an order authorising the Dire r Chief Commissioner of Incom come-tax (CIT) to issue an orde d functions confirmed on or a der this Act shall be exercised o oner of Income-tax.

Cou he assessee, there was neither oncerned DGIT/CCIT/CIT nor aid authority to assign juris ioner of Income-tax for exercis ficer and in absence thereof, he Additional Commissioner of w.

Counsel submitted th vide letter dated 24.07.2018, 3 d the Assessing Officer for prov passed by CBDT and subordin pplication on 08.02.2019 unde 5 (RTI).

However, same was not ed appeal under the RTI Act befo ncome-tax.

The Ld counsel on the part of the assessee, no n acquired by the Addl.

CIT ha ,therefore it is presumed er of jurisdiction exist in favo Corporation of India Ltd..

29 4413/M/2004, 43 to 4745/M/2007, Ors ector General of me-tax (CCIT) or er in the writing assigned to the or performed by unsel submitted any order from order has been sdiction to the sing jurisdiction the assessment f Income-tax is hat the assessee 30.08.2018 and viding details of nate authorities er the Right to t responded and ore the Pr. re the Pr.

Chief submitted that o information in as been provided that no such ur of the Addl.

Commissioner of Inc the assessment orde jurisdiction.

The Ld. secondly, on the gro passed by the Co jurisdiction of case f Addl.

Commissioner Counsel relied on foll i.

Tata S 450) 3.40 o ii.

Tata ITA N order 177 to iii.

Tata S and 27.11 Casela iv. iv.

Ta 2639/ (see p respec v.

Tata C AY 2 16.08 of Cas vi.

Tata 5090/ No.

28 7.2 The Ld.

Counse of the Co-ordinate M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ome-tax.

In view thereof, it mig er has been passed by him wi Counsel has raised the validity ound that no order u/s 127 of th ommissioner of Income-tax f from Joint Commissioner of Inc r of Income-tax.

In support t lowing decisions: Sons Ltd. vs.

ACIT (AY 2001-02) (2 (AY 2001 - 02) (MUM - TRI) (see on Pg No.

155 to 160c of Caselaw P Communication Ltd. vs.

ACIT (AY No.7071/Mum/2005 and 1108/Mum dated 30.06.2017 (see para 13 to o 207 of Caselaw Paper book); Sons Ltd. vs.

ACIT (AY 2002-03) in 3745 /Mum/2006 vide its .2017 (see para 18 on Pg No.

1 aw Paper book) ata Sons Ltd. vs.

ACIT (AY 2004-0 /Mum/2009 vide its order dated para 2-3 & 5.1 on Pg No.

211 t ctively of Caselaw Paper book) Communication Ltd vs.

ACIT (AY 2004-05) (ITA No.3972/Mum/20 .2019 (see para 6 and 6.1 on Pg N selaw Paper book) Sons Ltd vs.

ACIT (AY 200 /Mum/2012) dated 16.08.2019 (see 82 to 295 of Caselaw Paper book) el for the assessee further relied e Bench of the Tribunal Corporation of India Ltd..

30 4413/M/2004, 43 to 4745/M/2007, Ors ght be held that ithout any valid y of jurisdiction, he Act has been for transfer of come-tax to the hereof, the Ld.

2016) (162 ITD para 3.24 to Paper book); Y 2002-03) in m/2008 by its o 18 on Pg No. n ITA Nos.

193 order dated 19 to 139 of 05) in ITA No. d 11.03.2019 to 212 & 235 Y 2003-04 and 007) | dated No.

253 to 276 05-06)(ITA No e para 7 on Pg on the decision in ITA No. in ITA No.

1975/Mum/2014 an year 2010-11 in the the Tribunal has fu Tribunal in the case o 7.3 In view of the a assessee submitted t had no authority to a pass the impugned a 7.4 The learned dep to provision of sectio that no person shall b an Assessing Officer issue of notice u/s 14 issue of jurisdiction s Chief Commissioner He submitted that th jurisdiction of the Ad before the Assessing to raise the issue at a of Hon’ble Supreme Kalinga Institute o 151 taxmann.com 4 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O nd ITA No.

1771/Mum/2015 case of M/s Vertiv Energy Pvt rther relied on the Co-ordinat of Tata Sons Ltd. (supra). above submissions, the learned that the Additional Commissione act as an Assessing Officer for th ssessment order. partmental representative (DR) on 124(3) of the Act which inte be entitled to call in question th beyond the prescribed time lim 43(2) of the Act and the final au shall be of the Director-general o of Income-tax or Commissioner he assessee did not raise this iss dditional CIT within the prescri Officer and therefore it should any later stage.

The ld DR relied e Court in the case of DCIT( of Industrial Technology repo 434 (SC).

31 4413/M/2004, 43 to 4745/M/2007, Ors for assessment t.

Ltd., wherein te Bench of the counsel for the er of Income-tax he assessee and firstly, referred er-alia prescribe he jurisdiction of mit of 30 days of uthority on such of Income-tax or r of Income-tax. sue of validity of ibed time period d not be allowed d on the decision (exemption) vs orted in (2023) 7.5 Secondly, the L jurisdiction is involve in the case is of th Department i.e. prio restructuring in the y Income-tax was com Ranges’.

Until, 23/1 ‘Special Ranges’, we Income-tax (DCIT). taxpayers below a t under the charge of a ‘Range’ ( which was c returned income ab ‘Special Ranges’. l Ranges’.

The units namely ‘Circle officers of the rank (ACIT), whereas ward of Income-tax Office pecuniary limit of re was assigned to th whereas the cases of 2 lakhs were divided regular ‘Range officer M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Ld.

DR submitted that in the cas ed.

DR submitted that he era of pre restructuring in or to 1/08/2001.

He submitte year 2001, the ‘Charge’ of the C mprised of units namely ‘Range 2/1998, the officers heading th ere designated as Deputy co During relevant time, the ju hreshold returned income ( sa a Commissioner of Income-tax, called as regular Range), where bove that threshold value we e ‘Range’ was further used to b es’ and ‘Wards’.

The ‘Circles w k of the Asst Commissioner ds were being headed by the off er (ITO).

The jurisdiction of the turned income, say from ₹ 2 la he Asst Commissioner of inco f the ‘Range’, below the pecunia d amongst the ‘Wards’.

In this r’ was not acting as Assessing O Corporation of India Ltd..

32 4413/M/2004, 43 to 4745/M/2007, Ors se, no change of the assessment the Income-tax ed that prior to Commissioner of es’ and ‘Special he ‘Ranges’ and mmissioner of urisdiction over ay Rs.

25 lakhs) was assigned to as cases having ere assigned to be comprised of were headed by of Income-tax ficer in the rank e ‘Range’ having akh to 25 lakhs ome-tax (ACIT), ary limit of say ₹ s structure, the Officer and only the ‘Special Range’ D with ACIT and ITO.

7.7 The Ld.

DR re issued by the CBDT Income-tax (DCIT) w Income-tax (JCIT) wit the case of the assess on 15/12/1998 is h Income-tax, special disputed the jurisdi special range-32, Mu years prior to as Commissioner of Inc 143(2) and 142(1) o consideration.

The ju those notices has als 7.8 The learned de that, a section 2(28 Finance, 1998 w.e Commissioner” mea Commissioner of Inco u/s 117(1) of the A assessee, initial noti M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O DCIT was acting as an Assessin eferred to Circler No.

772 da T, wherein the post of Dy.

C was re-designated as Joint C th effect from 1st day of October see, the first notice issued unde having designation of Joint C range-32, Mumbai.

The ass iction of Joint Commissioner umbai at any point of time even ssessment year 98-99.

The come-tax issued further notices of the Act to the assessee in urisdiction of the Assessing Of o not been disputed by the asse epartmental representative fur 8C) of the Act has been inse e.f.

01.10.1998 which define ans a person appointed ome-tax’ or ‘Addl.

Commissione Act.

DR submitted tha ces u/s 143(2) and 142(1) wer Corporation of India Ltd..

33 4413/M/2004, 43 to 4745/M/2007, Ors ng Officer, along ated 23.12.1998 Commissioner of ommissioner of r, 1998.

Thus in er section 143(2) Commissioner of sessee has not of Income-tax, n in assessment e same Joint s under section the year under fficer in issuing essee. rther submitted erted by way of ed that “Joint to be ‘Joint er of Income-tax’ t in the case of re issued by the Officer namely sh Commissioner of Inco submitted that somew ‘R.K.

Goyal’ must ha was elevated to the and accordingly h Commissioner of Inc was no ‘dejure’ Cha 143(2) notice and pa same.

7.9 The Ld.

DR furt High Court in the ca 285 ITR 179 (Al considered the secti Commissioner of In Commissioner of Inc assessee has not Commissioner of Inco 2(28C) of the Joint C Commissioner of Inco has been promoted Income-tax and thus M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O R K Goyal, who was ac ome-tax, Special Range 32, Mum where between 16/08/2000 an ave been promoted to non-funct Additional Commissioner of I is designation got changed come-tax, Special Range 32, Mu ange in status and therefore, assing the assessment order a ther relied on decision of the Ho ase of Arun Kumar Maheshwar llahabad) wherein the Hon’b ion 2(28C) of the Act where come-tax’ come-tax’ has been defined to come-tax’.

Thus, according to t challenged the jurisdiction ome-tax of Special Range 32 an Commissioner of Income-tax in ome-tax also and since in the c to the post of Additional C , there was no change of jurisdi Corporation of India Ltd..

34 4413/M/2004, 43 to 4745/M/2007, Ors cting as Joint mbai.

He further d 8/3/2001, Sh tional grade and Income-tax post to Additional umbai.

So there officer issuing are one and the on’ble Allahabad ri v.

ITO [2006] ble Court has the term ‘Joint o include ‘Addl the Ld.

DR, the of the Joint nd as per section nclude the Addl ase same officer ommissioner of ction.

7.10.

Thirdly , the submitted that the d Tata Sons Ltd.(supra to the era of the po ‘Special Range’ had b were redistributed concerned Commissi among Assistant/ D namely ‘Circle’) and pecuniary limit of ret Income-tax /Additio heading the ranges, w Officer over all the ca were assigned to them In the case of Tata S (supra), the matter u Joint/ Additional Co the assessment order The Ld DR submitte should have been b Commissioner of Inc the relevant Range o concurrent jurisdictio by the CIT to him/h M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O e learned department represe decisions cited by the assessee a) and Tata Communication Ltd ost re-structuring in the Depa been abolished and the cases o among respective ‘ranges’ w ioner of Income-tax, further to Deputy Commissioner of Inco ITO ( Unit namely ‘ward’), de turn of income filed.

The Joint C nal Commissioner of Income- were given concurrent jurisdicti ases under their Ranges, howeve m for completing scrutiny proce Sons Ltd.(supra) and Tata Comm nder challenge was jurisdiction ommissioner of Income-tax, Ra r under the capacity of concurr ed that according to the assess by way of order u/s 127 of come-tax, whereas, according t officer i.e.

JCIT/Addl.

CIT was on over the cases and assignm er was a formal procedure for Corporation of India Ltd.. ndia Ltd..

35 4413/M/2004, 43 to 4745/M/2007, Ors entative further e in the case of d. (supra) relates artment wherein of special ranges working under o be distributed ome-tax ( unit epending on the Commissioner of -tax, who were ion of Assessing er, certain cases eedings by them. munication Ltd. acquired by the ange for passing rent jurisdiction. see this transfer the Act by the to the Revenue, already having ent of the cases transparency in distribution of the w dispute involved in t therefore ratio of thos instant assessment y 7.11 The ld DR refer 31/07/2001 and no cited in the decision issued under section pertain to distributio thus, not related to under consideration.

7.12 In rejoinder, th No.

228/2001 dated dated 17/09/2001 representative and su said notifications wou of the Act is not cor said notifications sh Additional Commissi subject relating to J submitted that said Tribunal in its lead o (2016) 76 Taxman.co M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O work.

The Ld DR submitted th the case cited by the assessee se cases cannot be applied over year. rred to CBDT notification No.

2 otification No.

267/2001 date n of Tata Sons Ltd (supra), wh n 120(4)(b) of the Act and subm on of jurisdiction in post-restru the question of jurisdiction rai he learned counsel referred to d 31/07/2001 and notification relied upon by the learned ubmitted that contention of the uld satisfy the requirement of s rrect.

He submitted that a mere hows that same were not conc ioner of income-tax and dealt Joint Commissioner of income- d notification has been cons order in the case of Tata Sons om 126 (supra).

The learned cou Corporation of India Ltd..

36 4413/M/2004, 43 to 4745/M/2007, Ors hat the issue in is different and r the facts of the 228/2001 dated ed 17/09/2001 hich have been mitted that same ucturing era and ised in the year the notification n No. tion n No.

267/2001 d departmental learned DR that section 120(4)(b) e perusal of the cerned with the t only with the -tax.

He further sidered by the Ltd reported in unsel submitted that Revenue has no issued by the Co Additional Commissi Officer.

7.13 The learned cou DR of not raising the period of 30 days of i that section 124 of th According to him un Officer who has bee exercise such jurisdi of a specified catego arises with respect jurisdiction of a par those circumstances issue involved is tha had no inherent jur Officer.

He submitted by the Tribunal in the 8.

We have heard ri dispute raised in a material on record.

143(2) dated 15/1 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ot brought on record any order mmissioner of income-tax a ioner of Income-tax for acting a unsel for the assessee, on the e issue of jurisdiction before th issue of notice u/s 143(2) of the he Act deals with a completely d nder the section 124 of the Ac en vested with jurisdiction of iction within the limits of such ories of person and it is only w to which Assessing Officer rticular area, the section 124 s.

He submitted that in the pr at the Additional Commissione risdiction or authority to act a d that this issue has already b e case of Tata sons ltd (supra). ival submission of the parties additional ground and peruse The Ld.

DR has pointed out 12/1998 for the assessmen Corporation of India Ltd..

37 4413/M/2004, 43 to 4745/M/2007, Ors r or notification authorising the as an Assessing argument of ld e AO within the e Act, responded distinct scenario. ct, an Assessing any area, shall area in respect when a question would exercise would apply in resent case the er of income-tax as an Assessing been considered on the issue in ed the relevant that notice u/s nt year under consideration has b income-tax, Special not been disputed by the assessment ord Income-tax, Special assignment of jurisdi the CBDT should h thereof Chief Comm Income-tax or Comm order for assignin r assigning ju contentions of the understanding the restructuring of the D more than particular DR was of Rs 25 lakh Income-tax used to b the assessee was con Range-32.

The said having designated as designation by way C by the ld DR, the pos re-designated as consequently the Sp from Deputy Commi M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O been issued by the Joint Co Range 32, Mumbai.

The said j y the assessee.

The assessee is der passed by Additional Co Range 32.

According to the iction to the Additional CIT,rang have issued a notification and missioner of Income-tax or Dire missioner of Income-tax shoul urisdiction to the Addl.

CIT.

In o Ld.

Counsel of the assesse structure of the Departm Department, the cases having r r returned income , which acco hs, under particular charge of C be assigned to the Special Range ntinued to be assessed under t Unit was earlier being headed s DCIT Special Range , but in vi Circular No.

772 dated 23/12/ st of ‘Deputy Commissioner of In ‘Joint Commissioner of In pecial Range-32, Mumbai wa issioner of Income-tax , specia Corporation of India Ltd..

38 4413/M/2004, 43 to 4745/M/2007, Ors ommissioner of jurisdiction has s disputing only ommissioner of e assessee, for ge -32, Mumbai, d in compliance ector General of ld have passed our opinion, the ee are without ment.

Prior to returned income ording to the ld Commissioner of e(s).

The case of the Unit Special d by the officer iew of change of /1998, i.e. cited ncome-tax’ was ncome-tax’ and s re-designated al Range -32 to Joint Commissioner said authority , notic issued by the Joint C as an Assessing Offic having any objectio officer.

8.1 By way of Financ 2(28C) the Joint Com be a person appointe Additional Commissi section 117 of the A the same officer was and on his promotion was elevated to the p and therefore the Commissioner of Inc provisions of section Income-tax means a of Income-tax or Add he continued on the Assessing Officer and Assessing Officer in t su er in t submission of Ld.

C M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O of Income-tax, special Range-32 ces u/s 143(2) and 142(1) of th Commissioner of Income-tax Sp cer.

Till that point of time, the a on regarding the authority of ce Act, 1998 w.e.f.

01.10.1998 b mmissioner of Income-tax has ed to be a Joint Commissioner o ioner of Income-tax under su ct.

DR has pointed out working as Joint Commissione n by way of non-functional sele post of Additional Commissione Assessing Officer became come-tax, Special Range 32.

Si n 2(28C) of the Act, the Joint C person appointed to be as Join ditional Commissioner of Incom same post heading the Special R d there was no change in the ju the case of the assessee.

Furthe Counsel for the assessee that no Corporation of India Ltd..

39 4413/M/2004, 43 to 4745/M/2007, Ors 2 and under the e Act have been pecial Range-32 assessee was not f the Assessing by way of section been defined to f Income-tax or b-section (1) of t before us that er of Income-tax ection grade, he er of Income-tax the Additional ince, as per the Commissioner of nt Commissioner e-tax, therefore, Range-32 as the urisdiction of the er, regarding the o order u/s 127 of the Act has been Commissioner of In Income-tax, we are o there was no requirem Commissioner of Inc jurisdiction to anot remained in the sam Sons Ltd (supra) and period of post restr 1/08/2001 , wherein completing assessme Additional CIT range The other argument assessee of section jurisdiction before th notice u/s 143(2) of we are not commenti 8.2 In view of the ab Ld.

Counsel for the a p ltd (supra) , in ab authority of Addition the assessment order has been dismissed b M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O issued for transfer of jurisdic come-tax to the Additional C of opinion that in view of the ab ment of issue of order u/s 127 o come-tax as no transfer of the her jurisdiction was involved e jurisdiction. isdiction.

The decision in th d Tata Communications Ltd (sup ructuring in the Income-tax n cases were transferred to the R ent, and the assessment order e have been held as without a ts whether there was no com 124(3) of the Act i.e. not raisi he AO within the period of 30 d the Act, are rendered merely a ng on the same. bove discussion, we reject the c assessee.

Further, In the case of bsence of no cogent basis for nal Commissioner of Income-tax r, the additional ground raised by the Tribunal observing as und Corporation of India Ltd..

40 4413/M/2004, 43 to 4745/M/2007, Ors ction from Joint ommissioner of bove discussion, of the Act by the e case from one and the case he cases of Tata pra) relate to the department i.e.

Range Officer for r passed by the authority of law. mpliance by the ing the issue of days of issue of academic; hence contention of the f stock Traders challenging the x Act in passing by the assessee der: “20.

In that the notice assessm that the then th has nev Assessi 13.04.2 the Ass We not assesse regardi complie years is is no co of the a assesse bench particul held th basis assesse quashe authori assesse 8.3 Before us also, t notices issued under assessment record b Additional Commissi order of elevation Additional Commiss assessment record procedure and theref He submitted that de the relevant authori could not be traced a M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O n this case, the only reason for the assessee's e above provisions are not complied with u/s.

143(2) was issued by the ACIT.

Ho ment order has been passed by the Addl.

CI e assessment order was passed on 22.03.2 he assessee has got no information whatsoe ver ever had reason to challenge the jurisdic ing Officer in this case.

However, sud 2018, the assessee has filed an additional g sessing Officer in this case did not have any j te that there is no information in the posses ee that the internal procedure of the d ng the transfer and posting of officers has icers has ed with.

The assessee in this case after a l s making a wild guess.

In our considered opi ogent reason to accede to this request of the I assessee.

The laws referred by the Id.

Cou ee were rendered on the facts of those cases upon the facts has gone into the spe lars of that case.

In the present case, we ha he assessee's assertion after 15 years has whatsoever.

Hence, we are unable to a ee's request that the assessment deserv ed insamuch as the Assessing Officer did no ty of law.

Hence, the additional ground rais ee stands dismissed.” the Ld.

CIT DR has submitted r section 143(2) of the Act are a but the relevant notifications ioner of Income tax as Assessin of the Joint Commissioner t sioner of Income-tax are no because same were part of fore were not placed on the ass espite making thorough search ities, those notifications / pr after a lapse of substantial perio Corporation of India Ltd..

41 4413/M/2004, 43 to 4745/M/2007, Ors s allegation is that the wever, the IT.

We note 2001 since ever and it ction of the ddenly on ground that jurisdiction. ssion of the department s not been apse of 15 inion, there Id.

Counsel unsel of the s where the ecifics and ave already no cogent accept the ves to be ot have the sed by the that though the available on the authorising the ng Officer or the to the post of ot available on f administrative essment record. h of all record of romotion orders od of more than 14 years.

We find tha the assessee had pla the case of Tata Son (supra) but the Trib parties, rejected the the Additional Com assessment order.

T Tribunal in the case additional ground rai 9.

The ground Nos renovation and mod by the assessee from submitted that wh renovation and mode the notification issu Commission to cov expenditure on reno renovation and mod capital expenditure distributable as divid that levy calculated account of ‘diversio M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O at in the case of Stock Traders aced reliance on the decision of ns Ltd (supra) and Tata commu bunal after considering the sub additional ground challenging mmissioner of income-tax , i Thus, respectfully following the of Stock Traders P Ltd (supra), ised by the assessee. s.

1 and 2 of the appeal relate dernization levy of Rs.

4263.63 m customers.

Counsel f hile raising invoices from c ernization levy collected is in a ued by the Department of ver equity portion of the G ovation and modernization.

He dernization fund was only for and was to be a capital re dend.

Counsel accord is not the income of the ass on’ of title at source.

Altern Corporation of India Ltd..

42 4413/M/2004, 43 to 4745/M/2007, Ors s P Ltd (supra), f the Tribunal in unication limited bmission of the the authority of in passing the e finding of the , we dismiss the e to taxability of 3 lakhs collected for the assessee customers, the accordance with Atomic Energy Government for submitted that the meeting of eserve and not ingly submitted sessee being on natively, it was submitted that levy receipt, it was not tax 9.1 On the other ha is decided against th case for assessment dated 05.04.2007 a pending before the H 9.2.

In the rejoinder, of levy of de-commis in ITA No.

843/mum , which has been furt vide ITA No.

1002 of 2 9.3 We have heard dispute and perused the issue in dispute ordinate Bench of Tr 4071/Mum/2001 for the decision is reprod “14.

We ha submissions Following fa A.

Facts eme M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O y collected being in the natur xable in for the purpose of incom and, the Ld.

DR submitted that he assessee by the Tribunal in t year 1997-98 in ITA No.

40 and further appeal filed by t on’ble High Court. the Ld Counsel submitted that sioning levy has been decided /2003 for AY 1992-93 in favour ther upheld by the Hon’ble Bom 2016.

Bom 2016. rival submission of the parties d the relevant material on recor is squarely covered by the dec ribunal in the case of the asse r assessment year 1997-98.

The duced as under: ve heard the parties and considered s including the authorities referred to cts emerge on perusal of each Notifica erging on perusal of the first Notificatio Corporation of India Ltd..

43 4413/M/2004, 43 to 4745/M/2007, Ors re of a Capital me-tax. issue in dispute assessee’s own 071/Mum/2001 the assessee is t identical issue by the Tribunal r of the assessee mbay High Court on the issue in rd.

We find that cision of the Co- essee in ITA No. relevant part of their rival o by them. ation: on: (1) Both the included in customersan tariff. (2) The asses collected in after their co (3) Both the resources to meeting its e (4) None of intended to the Governm by the asse manner in w B.

Facts eme (1) Under the by the Gove by the ass Notification, included in t (2) In the se required to p Government. be retained b (3) The seco the levies w enable the a expenditure. (4) Second N none of the passed ove Government.

202, 114, 3867/M/2008, 474 2452/M/2011 & O levies authorized by the Government the tariff fixed by the assessee nd were therefore collected as part of ssee was not required to part with th favour of the Government.

In fact, ollection, were to be retained by the as e levies were intended to generate enable the assessee to use and appl expenditure on notified activities. f the levies collected by the asse be passed over or was actually pass ment.

Both the levies were collected an essee.

What the Notification provided which the levies would be used by the erging on perusal of the second Notific e second Notification, both the levies a ernment were to be recovered in the t sessee from its customers.

In th what was provided was that they the tariff. econd Notification also, the assessee part with the levies so collected in fav . d in fav .

In fact, the levies, after their collectio by the assessee. ond Notification did not alter the fact were intended to generate financial re assessee to use and apply them for m Notification also did not alter the po e levies collected by the assessee er or was actually passed ove .

Both the levies were collected and re Corporation of India Ltd..

44 4413/M/2004, 43 to 4745/M/2007, Ors were to be e from its the overall he levies so the levies, ssessee. e financial ly them for essee was sed over to nd retained d was the assessee. cation: authorized tariff fixed he earlier would be e was not vour of the on, were to t that both esources to meeting its sition that would be er to the etained by the assesse provided wa by the asses (5) Second N levies would hands of th created betw the levies, w tariff or sale remains tha with tariff th the stipulati would not fo assessee w same for th revenue expe 15.

On the f along been c diverted at Government officer and however reje have held th of diversion aforesaid fin appeal.

Som the corpus h itself for the recurring exp on the asses the land.

In portion of th treated as i assessee.

Th the hands of so that the a pass it on to to be passed person to wh M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ee for its use.

What the second N as the manner in which the levies wou ssee for its own purposes.

Notification specifically provided tha d not form part of the tariff or sales inc e assessee.

In other words, a distin ween the tariff forming part of sales in which were declared to be not forming p es income of the assessee.

The fac t the levies were required to be colle hough under a separate head.

Notwit ion in the second Notification that form part of sales income of the ass as to retain the levies collected an he purposes of meeting its own ca enditure on notified activities. ctivities. factual matrix of the case, the assess claiming that the income by way of le source by an overriding title in fav and hence was not taxable.

The the learned first appellate autho ected the aforesaid submission.

Bot hat it is a case of application of incom of income at source.

It is the correctn nding, which is the subject-matter of th metimes, a portion of the income aris held by the assessee is consumed at e purpose of meeting some recurrin penditure arising out of an obligation ssee by contract or by statute or by n such cases, a question arises whe he income so consumed or expended income assessable to tax in the han he answer is that if the income before f the assessee is diverted away by su assessee, when he receives the incom a third party, the portion passed on, d on, is not the income of the assessee hom it is passed on or is liable to be p Corporation of India Ltd..

45 4413/M/2004, 43 to 4745/M/2007, Ors Notification uld be used at both the come in the nction was ncome and part of the ct however cted along thstanding the levies sessee, the nd use the apital and see has all evies stood our of the assessing ority have th of them me and not ness of the he present sing out of the source ng or non- n imposed the law of ether such d is to be nds of the e it reaches uperior title me, has to or is liable e but of the passed on.

In cases of superior title title to the i same in favo of the income and the third exclusively f income does accrues to th is not towar placed but t whose benef after the inc title to a third income.

16.

In Sitald from proper dependants maintenance yielding inco income.

In S (supra) the H in Sitaldas T The concept overriding ti case of Sitald In our opinio be deducted income.

Oblig is the nature There is a di obliged to ap the nature o the income o is diverted b but where th an obligation same conseq M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O f diversion of income, it is the ex e which not only deprives the asses income but also requires him to par our of a A third party as the assessee e would be receiving it both on behalf d party by virtue of the overriding tit for himself.

In cases of diversion of in s not accrue to the assessee at all; he third party in that the destination rds the assessee in whose hands the towards a third party in whose favo fit the title is created.

Resultantly, the come stands diverted at source by d party, would no longer be concerned das Tirathdas' case (supra), a part rty paid as maintenance allowanc under a decree of the court, w e allowance being charged upon the ome, was held to be a case of app Sijua (Jharriah) Electric Supply Co.

L Hon'ble High Court has considered the Tirathdas' case (supra) and held as un t of real income or diversion of inco itle was explained by Hidayatullah, das Tirathdas (supra) at pages 374-3 on, the true test is whether the amoun d, in truth, never reached the assess gations, no doubt, there are in every c e of the obligation which is the D dec ifference between an amount which a pply out of his income and an amount of the obligation cannot be said to be of the assessee.

Whereby the obligati before it reaches the assessee, it is d he income is required to be applied to n after such income reaches the ass quence, in law, does not follow.

It i Corporation of India Ltd..

46 4413/M/2004, 43 to 4745/M/2007, Ors xistence of ssee of his rt with the e in receipt f of himself tle and not ncome, the it, in fact, n of income e money is ur and for e assessee, a superior d with that of income ce to the without the e property plication of Ltd.'s case e judgment nder : ome by an J. in the 75 : t sought to see as his case, but it cisive fact. a person is t which by e a part of ion income deductible; discharge sessee, the is the first kind of paym second. ym second.

The another a p received and income neve collect it, doe behalf of the If this test is diversion of appropriated the assesse amount rem the benefit o specified pu could be use company. replacement envisaged in normal busi case of dive but only a assessee's in benefit of th of the expend 17.

In Vibhu learned Com was under assistance, grantloan of State Gover allowed the charge unde agreed to d business to same.

Unde entitled to contended t was not ass Government M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ment which can truly be excused an second payment is merely an obligat portion of one's own income, which d is since applied.

The first is case in er reaches the assessee, who even if h es so, not as part of his income, but f e person to whom it is payable. s applied, it will be seen that there ha income by an overriding title at all.

Th d to the contingencies reserve was co ee as its revenue from sale of elect mained at the disposal of the assesse of the assessee.

It could be used only urposes but the purposes for which ed were all business purposes of the Payment of compensation to of plant and machinery or other ex n para V, which we have set out earl ness expenditure of a company.

Thi rsion of income before it reaches the case of setting apart of a portio ncome under compulsion of law for th he assessee although the mode and t diture are statutorily restricted. uti Glass Works 'case (supra) referred mmissioner (Appeals)in his order, the a financial crisis.

In a package the Industrial Finance Corporation f Rs.

20 lakhs to the assessee pro rnment guaranteed the repayment e Industrial Finance Corporation to er the mortgage deeds.

The State G do so provided the assessee trans the State Government to manage an er the Agreement, the State Govern 50 per cent of the profits.

The that the profits earned from the gla sessable in its hands but in the han which was running and managing Corporation of India Ltd.. ndia Ltd..

47 4413/M/2004, 43 to 4745/M/2007, Ors nd not the tion to pay has been which the he were to for and on as been no he amount ollected by tricity.

The ee and for y for a few h the fund assessee- workers, xpenditure lier, are all is is not a assessee, on of the he use and the objects d to by the e assessee offinancial agreed to ovided the and also have first Government sferred its nd run the nment was assessee ass factory nds of the g the said business.

It cent of the p assessee.

R Hon'ble Sup that busines merely appl obligations of 18.

On peru transpires th source by established: (i) There mu the assessee (ii) A portion the source i party or, in source of inc to the receive it in a particu (iii) The incom to be passed favour of a th (iv) The ass source by a income or, in divested of a 19.

Applying before us, it and recover of its busine the assessee not only reta it for use an Notifications assessee to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O was alternatively contended that on profits could be assessed in the han Rejecting both the aforesaid submis reme Court has held that income ea ss accrued to the assessee directly w ied by the State Government to disc of the assessee. usal of catena of decisions on the hat, inorder to constitute diversion of overriding title following facts ust be income arising out of the corpu e; of the income so generated must be c tself by an overriding title in favour other words, the obligation must att come in that the income itself should er and not to the receiver of the incom ular manner; me so charged must be passed on or i d or, in other words, is required to be d hird party before it reaches the assess sessee, after the income stands d superior title, is no longer concerned n other words, the assessee must be c any kind of dominion over the income. g the aforesaid tests to the facts of is seen that the assessee was entitled the levies from its customers during ss. during ss.

The income by way of levies thus e in its own right.

The levies so colle ained by the assessee but were also a d application for meeting its own expe issued by the Government simply en o raise the resources for meeting Corporation of India Ltd..

48 4413/M/2004, 43 to 4745/M/2007, Ors nly 50 per nds of the ssions, the arned from which was charge the subject, it f income at must be us held by charged to of a third tach to the not accrue me to apply is required diverted in see; and diverted at d with that completely f the case d to collect the course accrued to ected were available to enses.

The nabled the g its own expenses.

Th the levies, absence of neither requ diverted at Notification i application reserve was the departm consequence every year t set apart ha Similarly, if Notification i at source by levies collec assessee-com fund, domin In these circ been any div from the as been approp income of th agreement w Commissione income and therefore end 20.

We ha assessee th that there w order.

We f aforesaid ob charges and 21.

The alte levies are in with by the his order.

In should be tra collected the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O hey gave the authority to the assesse which it had no authority to colle the A aforesaid Notifications.

The le ired to be diverted at source nor wer source in favour of any third part issued by the Government simply reg and utilization of funds.

The fact s created in terms of the Notification ment of Atomic Energy is not real e.

If an assessee sets apart a sum to a reserve, it cannot be said that th as been diverted at source by an overr f a sum is set apart under compu issued by the Government, diversion an overriding title does not take place cted and the reserve created belong m-pany; the assessee-company had ion over the fund and also the use of cumstances, it cannot be said that version of income at source by an over ssessee-company or that the amount priated to the fund does not form not form part he assessee.

On the facts of the case, with the well-reasoned order of th er (Appeals) that it is a case of app d not of diversion of income at so dorse his order. ave also considered the submissio hat the assessing officer has himself was diversion of title atpage 6 of the as find that the assessing officer has bservation in the context of decomm d not in the context of the impugned lev rnative plea of the assessee that the n the nature of capital receipts has b learned Commissioner (Appeals) in n order to constitute capital receipt, t aceable to loss of capital.

The assess e levies against loss of capital.

T Corporation of India Ltd..

49 4413/M/2004, 43 to 4745/M/2007, Ors e to collect ect in the evies were re actually ty.

Second gulated the t that the issued by ly of any of money he sum so riding title. lsion of a of income e.

Both the ged to the title to the f the fund. there has rriding title t that has of the real we are in he learned plication of ource.

We on of the f accepted ssessment made the missioning vies. impugned been dealt Para15 of the receipt ee has not They were included and course of bu ultimate des character fro our view, th that the imp endorse his 22.

We have the judicial a have not ind in the presen 23.

In view the assessee 9.4 Since the issue the present lev covered agains discipline, we ar commissioning Tribunal (supra only.

9.5 We also note th 05, 2005-06 a different levies same for the p assessee itself subsequent yea of the assessee M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O d collected along with the tariff in th usiness.

Once they have been so colle stination or application will not cha om being business receipts to capital r he Commissioner (Appeals) has corr pugned receipts were not capital rec order. e considered all the submissions made authorities referred to by the parties t dividually commented upon them as th nt case has turned essentially on facts of the foregoing, Ground Nos. round Nos.

1 to 4 e are dismissed.” of de-commissioning levy bein vy of Renovation and moderniz st the assessee, thus, to ma re not following the precedent in levy and prefer to follow the a) on issue of renovation and mo hat the assessee in assessment and 2006-07 has admitted th as its income and claimed de purpose of section 80IA of the has admitted the receipt ars, we do not find any justifica in contesting those receipts as n Corporation of India Ltd..

50 4413/M/2004, 43 to 4745/M/2007, Ors e ordinary ected, their ange their receipts.

In rectly held ceipts.

We e including though we he decision s.

4 taken by ng different from zation, which is aintain judicial n the case of de- e finding of the odernization levy years i.e.

2004- he collection of eduction on the e Act.

Once the as income in tion on the part not taxable.

9.6 In view of afores appeal of the as 10.

The ground No Rs.2558.18 lakhs be by the assessee.

The been discussed by th and modernization assessee.

CIT his predecessor in as Ld.

Assessing Officer 10.1 Before us, the the issue in dispute ordinate Bench of th relevant part of the above while adjudica note the assessee in 2006-07 has admitte and claimed deductio of the Act.

Once, th income in subsequen part of the assessee i M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O said discussion, the ground Nos ssessee are accordingly dismisse s.

3 and 4 of the appeal relat eing Research & Development e issue of research and develo he Assessing Officer along with levy and added the same as T(A) on the other hand, followin ssessment year 1997-98 upheld .

Ld.

Counsel of the assessee fa e is covered against the asses he Tribunal in ITA No.

4071/M e said decision has already be ating ground Nos.

1 & 2 of the n assessment years i.e.

2004-05 ed the collection of different levie on on the same for the purpose he assessee itself has admitted nt years, we do not find any jus in contesting those receipt as no Corporation of India Ltd.. ndia Ltd..

51 4413/M/2004, 43 to 4745/M/2007, Ors s.

1 and 2 of the ed. te to amount of t levy collected opment levy has h the renovation income of the ng the finding of the order of the airly agreed that ssee by the Co- Mum/2001.

The een reproduced appeal.

We also 5, 2005-06 and es as its income e of section 80IA d the receipt as tification on the ot taxable 10.2 The issue in d identical to the issue therefore, respectfull ground Nos.

3 &4 dismissed.

The ground No assessee of Rs.170 collected by the asse interest of Rs.

1836 The Assessing Office used within conventi plant or machinery o life.

The nuclear p radiation hazards, decommissioning of provision of finance. view of notification i Atomic Energy da decommissioning lev electricity sold and commissioning char fund’, which was to accrued on said fun M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ispute in the year under cons in dispute raised in assessmen ly following finding of the Tribu of appeal of the assessee o.

5 of the appeal relates to 05.55 lakhs being De-comm essee.

The ground No.

6 relates .71 lakhs credited to de-comm er has noted that the term ‘De- ional industry means action ta out of operation after the end plants contain radioactive inv so a comprehensive rules w f plants involving technical The assessee submitted before ssued by Government of India, ted 22.12.1988, the assess vy of Rs.

1.25 paise per kilowat d credited the said amoun ges to a fund known as ‘De be maintained by the assesse nd was also credited to the r Corporation of India Ltd..

52 4413/M/2004, 43 to 4745/M/2007, Ors sideration being nt year 1997-98, unal(supra), the are accordingly income of the missioning levy s to treating the missioning fund. -commissioning’ aken to take the of its economic ventory causing were framed for guideline and e the AO that in , Department of see charged a tt-hour(KWH) of nt of the De- e-commissioning ee.

The interest reserve and not invested outside. d outside.

It w maintenance of sep receipt has been div the assessee that th of Rs.1.25 per Kilowa the country, which KWH w.e.f.

15.10.19 the Ld.

AO accepted of title in receipt , ho AO observed that utilisation of decom creating a reserve, w out of the profit and not mean that such further observed that 12% to the fund and had charged interest AO accordingly rever year and held that allowed under the pr the Ld.

AO relied on the case of Distribu wherein it is held tha M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O was contended by the assessee parate fund for decommissioni verted from the assessee.

It wa e assessee collected De-commi att of electricity sold from the nu was subsequently increased t 997.

Though in the assessmen the contention of the assessee owever for the year under consid issuing notification by the G mmissioning charges for specifi was in the nature of appropriati d was not a diversion of title, th income would be exempt from t the assessee had credited not d thereafter on use of the fund expenditure to profit and loss a rsed finding on the issue in di such notional interest expendi rovisions of the Act.

For reversa the decision of the Hon’ble Su utors Baroda ltd reported in at to perpetuate an error is no he Corporation of India Ltd..

53 4413/M/2004, 43 to 4745/M/2007, Ors e that in view of ing levy , said as submitted by issioning charge uclear station in to Rs.

2.00 per nt year 1997-98 of the diversion deration, the Ld.

Government for ic purpose and ion of the funds herefore, it does income tax.

He tional interest of ds; the assessee account.

The Ld. ispute in earlier iture cannot be al of his finding, upreme Court in 155 ITR 120, roism.

11.1Before the Ld.

C had been made at amount collected had and same had been contention of the ass as under: “i) The respons with the Govern ii) The decomm of India, thus th iii) The notifica constitute revis collected does Power Station.

Iv) The levy irrespective of profit or not. it or not.

T not a case of ap v) The levy is n recoupment of a vi) The levy is purposes of c activity is the re 11.2 The Ld.

CIT(A) h observing as under: “7.7.

The abov misconceived appellant to as hands of the fund.

The fact from the consu so collected by hands of the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O CIT(A) the assessee claimed that the instance of Central Gover d never reached the assessee by n credited to the decommissio sessee has been summarised by sibility of decommissioning a nuclear power fa nment. missioning levy is collected on behalf of the G he levy belongs to the Government of India ation states that the collection of the levy sion of tariff.

It is clear from the above tha not form part of the tariff and profits of t is required to be transferred to a sepa the fact whether the Nuclear Power Station h Thus, this is a case of diversion by overridin ppropriation of profits.” not available for the Nuclear Power Stations f any losses. to be utilised by the Government of India f carrying out decommissioning activities, esponsibility of the Government of India. however rejected the contention ve argument of the Ld.

A.R. in my considered and fallacious.

It is equally misconceive ssert that the collection has even before re appellant has been credited to the decom is that it is the appellant who has collected t umers/customers and none else.

Therefore, t y the appellant as an additional levy has re appellant in the same manner and from Corporation of India Ltd..

54 4413/M/2004, 43 to 4745/M/2007, Ors t the collections rnment and the y overriding title ning fund.

The y the Ld.

CIT(A) acility rests Government would not at the levy the Nuclear arate fund has made a ng title and for the for the which n of the assessee d opinion is ed for the eaching the mmissioning the amount the amount eached the the same consumers as made on behal much as the co but has remain not the appell appropriated b divesting the a The collections appell ons appellant's own appellant in fa appellant.

The CIT VS.

Tolly J resolution deci from every race The Supreme C price for admis facts the Supre Apex Court he which "the inc collect it, does the person to amount collect disbursed in fa collected.

The passed on in fa are poles apar appellant's cas on in favour of ownership of t possession of t purposes.

The technical jargo remains that t appellant's ow source of powe to be subjected which include actual material to a complete acceptable for activities, it ha regard to the n What the app essential requi with reference The collection o of business to c of the power understandabl maintaining th M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O the other charges.

To say that the collection lf of the Central Govt. is again quite misconc ollections has not gone to the coffers of the g ned with the appellant under its effective cu ant's case that the collections in question by the Government in favour of some o appellant of the use of the funds for all time s no doubt have been made for specific purp n business and no one else's.

The case law c act supports the stand of the AO rather than appellant has relied upon the judgment in Junge Club Ltd.

107 ITR (SC).

In this case the ided to collect a surcharge together with adm e goer.

The surcharge was earmarked for loca Court held that the surcharge did not form p ssion but for the specific purpose of charity eme Court held that it was a case of over-ridin ld that the collection in that case fell in a c ome never reaches the assessee who, even so, not as a part of his income but for and o whom it is payable." Thus in Tolly Gonge ted was not to remain with the Club but avour of outsiders who were the recipients of collection was not used by the Club and avour of third parties.

The facts in the Tolly G rts from the basic facts in the appellant's ca se the collections made are not at all meant to f any one else. one else.

No third party is involved cl the funds collected but the same are in th the appellant only to be used for some specif e appellant has deliberated at length by n as to how the funds are to be used but the he decommissioning fund is to be exclusivel n power station/plants which are the appell er generation and sale thereof.

These power p d to certain process as per the appellant's o "closing down the facility and a minimum rem l coupled with continuing maintenance and su removal of residual radioactivity in exces r unrestricted use of the facility and its c as to be appreciated are quite normal activit nature of the appellant's business of power g pellant describes as decommissioning is ba rement of taking care of the normal life of a p to its normal wear and tear and attendan of charges from customers in the course of t create adequate funds to take care of the wea plants at the instance of the Governmen le having regard to the attendant h he power plants.

Which of the business Corporation of India Ltd..

55 4413/M/2004, 43 to 4745/M/2007, Ors n has been eived in as government ustody.

It is have been other party es to come. pose of the cited by the that of the the case of e Club by a mission fee al charities. part of the y.

On these ng title.

The category in n if were to on behalf of e case the was to be the charity had to be Gonge case ase.

In the o be passed laiming the he effective fic business way of a e basic fact ly used for lant's main plants need wn version moval of the urveillance, s of levels cite".

These ties having generation. asically an power plant nt hazards. the conduct ar and tear nt is quite azards of but such regulation doe government ca having regard t electricity to th is no diversion The charges ha with the appel the purposes o The funds are Diversion by o situation wher passed on to a collections have course of condu and the fund c purposes of a misconceived o of over-riding ti 7. ding ti 7.8 In the co considered view by way of dec the computatio the reasons re the AO in the the reasons re Predecessor in above.

As such in bringing to t is confirmed.” 11.3 Regarding the assessee correspondi fund of ₹ 1836.57 assessment year 19 interest expenditur decommissioning fun 11.4 We have heard dispute and perused M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O es nor a given business having regard to an always regulate the conduct of a given to the which the appellant has made in cours e customers are not collections of revenue na n of such collections at source in favour of an ave been collected by the appellant and have lant in the form of a fund and have to be us of the appellant's business.

No third party i e not to be parted with in favour of any t over-riding title takes place only and exclus re the income never reaches an assessee a third party.

In the instant case of the app e been made by the appellant from the custom uct of its business, the collections are with th created out of these collections is also squar appellant's business.

It is, therefore, farfe on the part of the assessee trying to import t itle. nspectus of what is discussed above, I w that the AO has rightly subjected the reven commissioning charges to tax by including th n of income of the appellant.

I am in full agre ecorded, case law applied and conclusions r body of the impugned order of assessment ecorded and view taken on identical issues n the appellate order for AY.

1997-98 as h, this ground of appeal is rejected and action tax the income relating to the decommissioni issue of interest expenditure ing to the amount credited to d lakhs, the CIT(A) followed 992-93 and confirmed the d re for utilisation of the nd. rival submission of the parties the relevant material on record Corporation of India Ltd..

56 4413/M/2004, 43 to 4745/M/2007, Ors o thes The n business se of sale of ature.

There nyone else. e remained sed only for is involved. third party. ird party. sively in a and it is ppellant the mers in the e appellant rely for the etched and the concept am of the nue receipts he same in ement with reached by apart from by my Ld. mentioned n of the AO ng charges claimed by the ecommissioning his finding in disallowance of funds out of on the issue in d.

Before us, the Ld.

Counsel of the as Bench of the Tribu 843/Mum/2003 for further upheld by th of 2016.

The relevan reproduced as under “11.

Ground decommissioni assessee colle Rs.1.25 paisa memorandum power station a and removal o components an This decommi expenditure re radio-active ma meet the deco decommissione dated 22.12.19 decommissioni dated 20.2.19 decommissioni collected will c credited intere assessee.

For amount of Rs. reserve of Rs.

9 stating that the were used for the assessee decommissioni and pay intere denied by the A said interest w the assesse a clarifed that th the assessee a the adopting of charged the i notification Iss relied on the w M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ssessee relied on the decision of nal in the case of the asses assessment year 1992-93 w e Hon’ble Bombay High Court i t part of the decision of the Trib : d No.

12 relates to the deduction of interest ng reserve.

Brief facts in this regard a ects decommissioning charges from its cu or 2 paisa per kwh.

As per clause 12 of the dated 4.09.1987, the decommissioning of after its useful life includes decontamination, of radio active material, radio-active mate nd structure and it is the responsibility of th ssion reserve of nuclear power station i elating to decontamination, dismantling and aterial,waste, components and structure.

Wi ommissioning expenditure as and when t ed, the Department of Atomic Energy issu 988 and 4.11.1991 directing the assessee to ng levy from its customers.

Vide another 997 a clarification was issued stating ng charges so levied at on the assumption th carry an interest of 12% per annum. per annum.

Therefo est @ 12% on the decommissioning fund ke the year under consideration assessee 331.73 lakhs towards interest on the deco 917.08 lakhs.

Assessee claimed the same as e funds so collected by the assessee from th the purpose of business.

Justifying the same borrows funds for the business purposes ng fund, the assessee would have had to b est on them.

However, the claim of the as Assessing Officer and the CIT (A) on the gro was claimed on a notional basis.

Before us, Ld rgued in favour of the said claim of the as e funds so received is undisputedly not taxab and there Is no dispute on this.

This Issue is of interest relating to the said funds.

The a nterest on the sald funds keeping in tun ued by the Department of Atomic Energy.

O written submissions made in para 27 of the Corporation of India Ltd..

57 4413/M/2004, 43 to 4745/M/2007, Ors the Co-ordinate see in ITA No. which has been in ITA No.

1002 bunal (supra) is t credited to are that the ustomers at office of the f a nuclear dismantling erial, waste, he company. includes the d removal of ith a view to the plant is ued a notice charge such r notification g that the hat the funds re, assessee ept with the credited an mmissioning s a deduction he customers e saying that but for the borrow more ssessee was und that the d Counsel for ssessee and ble income of s only about ssessee has ne with the Otherwise, he sald written note (supra).

O Assessing Offi perusal of the Department of was collected decommissioni power plant is Thus, undispu accordingly, th issue about the to the assesse assessee.

Levy the Departmen charge of intere on the assess deduction of cl the assessee.

Officer and the 11.5 The Hon’ble Hi observing as under: “5.

Having he perused the do the Tribunal.

Government of which would b its useful life. customers wou utilized for th therefore, requ also specified expenditure wa interest expend akin to the a borrowed fund creditors.

No dismissed.” 11. ssed.” 11.6 We have heard dispute and perused Hon’ble High Court a of claim of interest ex M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O On the other hand, Ld DR relied on the o icer and the CIT(A).

On hearing both the pa e notifications referred above which are ss Atomic Energy, we find the amount of Rs.9 d by the assessee form its custome ng funds which is almed at for use as an s decommissioned/ dismantled at the expir utedly the funds do not belong to th he same Is found reflected in the balance she e levy of Interest on the said funds which doe ee, it was used for the purpose of the bus y of interest on the sald fund was done at the nt of Atomic Energy.

Considering the said not est cannot be called notional interest as there ee to do so.

Therefore, we are of the opin laim of Interest of Rs 331.73 lakhs is rightly Accordingly, we reverse the orders of th e CIT (A) on this issue.

Thus, ground no.12 is a igh Court upheld the finding eard the learned counsel for the parties ocuments on record, we are in agreement with As noted, the assessee was under direc f India to collect and create decommissioni be utilized for decommissioning of the plant a In the meantime, the amount so collecte uld be in the possession of the assessee an e purpose of its business.

The Governme uired the assessee to account for the interest d at 12% per annum on said funds.

T as claimed by the assessee by way of ded diture was clearly business expenditure.

The assessee borrowing from the market, ut ds for the purpose of business and paying in question of law arises.

The Income Tax rival submission of the parties the relevant material on record and the Tribunal has given findi xpenditure for utilisation of the Corporation of India Ltd..

58 4413/M/2004, 43 to 4745/M/2007, Ors order of the rtles and on sued by the 917.08 lakhs rs towards nd when the ry of Its life. he assessee eet. essee eet.

Now the es not belong siness of the e instance of tification, the e Is a charge nion that the y claimed by e Assessing allowed.” of the Tribunal and having h the view of ctives of the ing reserves at the end of ed from the nd would be ent of India, t which was The interest duction.

This e situation is tilizing such nterest to the x Appeal is on the issue in d .

We find that ing on the issue funds out of the decommissioning fu credited to the decom utilized for the purpo respect of use of fun Court has observed borrowing fund from for the purpose of the Thus, as far as the is 1836.71 lakhs is con of the assessee and extent is set aside an following the decisio and verify whether in then claim of interest But as far as th decommissioning decommissioning fu renovation and mo following the decision Para, and therefore t addition treating the in the hands of the assessment years i.e the collection of diffe M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O und on the ground that said mmissioning fund and when said ose of the business of the asses nd was eligible for deduction.

Th d that the situation is akin t the market and utilising such e business and paying interest ssue of disallowance of interest e ncerned, the issue is squarely co therefore the finding of the Ld nd matter is restored to the Asse on of the Hon’ble Bombay High nterest income credited has alre t expenditure has to be allowed he issue of receipt collecte charges and credited nd is identical to collection odernisation fund, which we n of the Tribunal in earlier yea to have consistency in our view receipt of decommissioning cha assessee.

We also note that .

2004-05, 2005-06 and 2006-0 rent levies as its income and cla Corporation of India Ltd..

59 4413/M/2004, 43 to 4745/M/2007, Ors d interest was d fund has been ssee, interest in he Hon’ble High to the assessee borrowed funds to the creditors. expenditure of ₹ overed in favour d. favour d.

CIT(A) to that essing Officer for h Court (supra) eady been taxed, to the assessee. ed by way of separately to of the levy of e have upheld ars in preceding w, we uphold the arges as income the assessee in 07 has admitted aimed reduction on the same for the assessee itself has a years, we do not find contesting those rece appeal of the assesse No.

6(six) of the app purpose.

The ground No interest income (Rs. lakhs) and other inco from other sources” “expenditure incurre under consideration.

12.1 Before the Ass receipts were having plants and does not therefore, should be were capitalized.

It w of account has been same had not been ‘rule of consultancy’ construction expend head ‘income from M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O purpose of section 80IA of the admitted the receipt as income d any justification on the part of eipts as not taxable.

The groun ee is accordingly dismissed, whe peal of the assessee is allowe o.

7 of the appeal relates to .276.71 lakhs), consultancy re ome (Rs.1216.96 lakh) under th rather than adjusting the sa ed on construction of plants” d sessing Officer, it was submit direct nexus with the activity of constitute independent source reduced from the construction was further submitted that iden followed by the assessee in pas disturbed by the AO and thus ’ said income should be adjus diture, instead of taxing separa other sources’.

Before the L Corporation of India Ltd..

60 4413/M/2004, 43 to 4745/M/2007, Ors e Act.

Once the e in subsequent f the assessee in nd No.

5 of the ereas the ground d for statistical considering the eceipt (Rs.87.70 he head “income ame against the during the year tted that above f construction of s of the income expenses which ntical treatment st years , which s, in view of the sted against the ately under the Ld. er the Ld.

CIT(A), the assessee explained having nexus with submission of the as under: “At the outs factual back reduced from a) Interest (o This amount the employ advances g expenditure expenditure b) Consultan The appella (engineers, e entire time remuneration individuals i included in Power Stati amount of completely o staff are eng locations ob assignments gainfully en reduction of period.

The appellan expenditure Schedule 6A Schedule.

202, 114, 3867/M/2008, 474 2452/M/2011 & O that income under the respe h the construction activity. ssessee before the Ld.

CIT(A) is set, we would like to provide your h kground about the nature of income t m the construction expenses. others) t represents interest received by the a ees, contractors etc. on loans / granted for the purposes of the in respect of such interest is in Schedule 6A. ncy receipts nt for each project designates certa etc.).

These individuals are expected t towards the project completion a n and other expenses incurred for th is not debited to the Profit and Loss A the Schedule 6A.

The construction o ion and its related activities take time and the engineers and the occupied at these times.

In order to en gaged in productive activities, the app btain certain consultancy assignm s are taken up in order to ensure th ngaged and the consultancy receipts f the total expenditure incurred during nt submits that in view of the fact t of the engineers and staff has bee A, the receipts are to be reduced fr Corporation of India Ltd..

61 4413/M/2004, 43 to 4745/M/2007, Ors ctive head was The detailed s reproduced as honor with the that has been appellant from mobilization project.

The included as ain individuals to devote their activities.

The hese identified Account but is of the Nuclear considerable staff are not nsure that the pellant near its ments. its ments.

These at the staff is result in the ng construction that the entire en included in rom the same Without prej income after same is negl c) Other inco The other inc i.

Receip ii.

Interes iii.

Interes certain iv.

Depos v.

Sale of vi.

Penal vii.

Rent f viii.

Recove ix.

Miscel The location Sr.

Location a) Corporate b) RAPS c) Kaiga d) Engg.

Divi e) RAPP 3 & f) TAPP 3 & Total A summary It is submitte mentioned a deduction in as capital ex It is further exceeds the On the basis following sub M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O judice to the above, the appellant sub r reducing the expenditure incurred fo ligible. ome come mainly constitutes the following pts from sale of tender forms st from contractors on advances given st received from staff engaged in t n loans given. sits of contractors forfeited of scrap in respect of material used in t interest from staff / contractors eries from staff for the transport provid llaneous receipts wise break-up of income is provided h Amount in Rs.

Lacs e office 1045.96 58.81 128.23 ision 136.81 4 203.22 4 8.34 1,581.37 is enclosed at page 129 of the compila ed that the relevant expenditure in re at (a), (b) and (c) above has not been n computing the total income and has xpenditure. r submitted that the total expendi income in Schedule 6A. s of the above background, the appella bmissions: Corporation of India Ltd..

62 4413/M/2004, 43 to 4745/M/2007, Ors bmits that the for earning the items: n the project on the project ded hereunder: Details at page nos.

122 123 124 125 - 126 127 128 ation. espect of items n claimed as a s been treated iture incurred ant makes the The appella Treatment of the Institute The Guidanc construction acquisition o and appropr commissione not in respe period but period Para 17.11 income earn Para 17.11 r "17. .11 r "17.11 Duri income from fees, interes and income period of t recommende related item expenditure expenditure may have to tax liability o It can be obs income whic set off again which would capitalised o It is submitt have therefo during const liable to tax.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ant invites attention to the Guida f Expenditure during Construction per of Chartered Accountants of India (ICA ce Note states that the expenses incur period which are directly rela or construction of the assets are to be riated to the cost of such assets when ed.

In the instant case, the issue for co ect of the expenditure earned during in respect of income earned during of the Guidance Note deals with the ed during the construction or pre-prod reads: ing the construction period a proje miscellaneous sources - for example s st income, income from hire of equipm from sale of products manufacture test runs and experimental produ ed that such income should be set of ms of expenditure so that only net a is capitalized or treated as defe as the case may be.

In either case o be given to the question of providing f on such income." served from the above, the ICAI has r ch is earned during the construction p nst the expenditure incurred during th d result in only the net amount of expe or treated as deferred revenue expend ted that the income referred to above fore been correctly reduced from th truction period rather than treating t ” Corporation of India Ltd..

63 4413/M/2004, 43 to 4745/M/2007, Ors ance Note on riod issued by AI). rred during the table to the e accumulated n the project is onsideration is g construction g construction e treatment of duction period. ect may earn share transfer ment or assets ed during the uctions.

It is off against the amount of the erred revenue consideration for the income recommended, period can be e same period enditure being diture. at (a) and (b) e expenditure his as income 12.2 The Ld. .2 The Ld.

C assessment year 199 and upheld the findi Counsel for the asses for showing detail of reduced from expen reference, said detail Sr.

Unit 1.

Corporate Office 2.

RAPS 3.

Kaiga 4.

Engineering Division 5.

RAPP 3&4 6.

TAPP 3&4 Grand Total 12.3 Further on page of ₹ 8,75,02,500/- h bonds.

It was submit receipt had already income earned and division has been exp 12.4 We have heard dispute and perused course of hearing, the justify as how the in M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O CIT(A) however following his 92-93, rejected the contention ing of the Assessing Officer.

Be ssee referred to paperbook page income of Rs.

1581.378 lakhs, nditure incurred on construct is reproduced as under: Interest Income Consultancy Receipts Other In 170.92 -- 875.03 12.49 --- 46.31 4.95 --- 123.28 --- 87.7 85.93 117.29 2.42 5.93 276.71 87.7 1167.84 e 211, in the details of corpora has been stated to be received tted that expenses incurred for e been reduced from those recei d corresponding expenditure plained on page 214 to 215 of th rival submission of the parties d the relevant material on reco e learned counsel for the assess terest received from employees Corporation of India Ltd..

64 4413/M/2004, 43 to 4745/M/2007, Ors predecessor in of the assessee efore us, the Ld. es 210 and 211. which has been tion.

For ready ncome Total 1045.95 58.8 128.23 136.82 203.22 8.35 4 1581.37 ate office, a sum as premium on earning the said ipts.

A detail of for engineering he paperbook. on the issue in ord.

During the see was asked to for mobilization advances was conne he was asked to ju connected with the other receipts under received on bonds, th was connected with t Counsel for the asse support of claim tha construction of the p accordingly rejected.

CIT(A) on the issue in 13.

The ground No disallowance of prior 13.1 Before us, the L the financial stateme debited was of Rs.27 income of Rs.1155.7 Rs.1626.54 lakhs. .54 lakhs.

Th the course of the asse expenses were subm Officer has recorded that no such detail o submitted and there M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O cted to the construction of pro ustify as how the consultancy construction of plants.

Simi the head ‘other income’ report he ld Counsel was asked to just the construction expenditure.

H ssee failed to file any documen at those incomes were having plants and therefore the plea of We do not find any error in the n dispute and accordingly, we up o.

8 of the appeal of the asse period expenses.

Counsel for the assessee su ent for the year end, total prior 78.118 lakhs and after set off 72 lakhs, the net prior period hough the Ld.

Counsel submit essment proceedings, the detail itted from time to time, howeve on page 30 of the impugned as of legal expenses amounting to efore, accordingly, he added th Corporation of India Ltd..

65 4413/M/2004, 43 to 4745/M/2007, Ors oject.

Similarly, y receipts were larly, regarding ted as premium ify as how same However, the Ld. tary evidence in nexus with the f the assessee is order of the Ld. phold the same. essee relates to ubmitted that in period expenses f of prior period expenses are of tted that during ls of prior period r, the Assessing ssessment order Rs.7 lakhs was he same.

Before the ld CIT(A), the Ld expenditure crystall however, no evidence CIT(A), therefore , he issue in dispute, up counsel for the ass assessee was around period expenses are 0.80%, which being n size of organization a assessee.

13.2 We have heard dispute and perused no such detail of the been filed and theref uphold the disallowa 14.

In ground No. respect of expenditu allowed.

14.1.

In our opinio disallowance in respe not disturbed either M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O d.

Counsel of the assessee subm lized during the year under e in support of same was filed following the finding of his pre pheld the disallowance. allowance.

Before sessee submitted that total t d Rs.

1447.72 crores, whereas only ₹ 11.55 crores, which is normal and a small percentage, and the locations, it should be rival submission of the parties the relevant material on record e legal expenses amounting to fore, we do not have any optio nce made by the Assessing Offic 9, the assessee has prayed th ure treated as prior period sho on, the Assessing Officer h ect of legal expenses of Rs.7 la prior period income or prior e Corporation of India Ltd..

66 4413/M/2004, 43 to 4745/M/2007, Ors mitted that said r consideration, d before the Ld. edecessor on the us the learned turnover of the s the total prior s approximately considering the e allowed to the on the issue in .

Before us, also Rs.7 lakhs has n other than to cer. hat deduction in ould have been as made only khs and he has expenses except said disallowance of have already upheld the assessee is also d 15.

The ground No employee state insur to Rs.53.47 lakhs u/ the assessee filed amounting to Rs.53 Assessing Officer as relevant Acts.

Since, contribution to ESI/ has been finally settle Checkmate Services and therefore employ under the relevant is the assessee claimed lakhs include empl however no such bre ,therefore, we remit verification and if t employer’s contributi subject to provisions due date of filing M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O f Rs.

7.00 lakhs for legal expe and therefore the ground No.

9 dismissed. o.

10 of the appeal relates to rance (ESI) and provident fund /s 43B of the Act.

Before the As an annexure of the detail o .47 lakhs which has been dis same was paid after the due the issue in dispute of payme /PF after the due date under t ed by the Hon’ble Supreme Cou s Pvt.

Ltd.

CIVIL APPEAL NO. yee’s contribution ESI/PF paid s not allowable.

Before us, the d that said amount of disallowa loyee’s as well as employer’ eakup of the amount has been this matter back to the Asses this amount of Rs.53. of Rs.53.47 lakh ion to ESI/PF, then the same s of section 43B of the Act i.e. of the return of income a Corporation of India Ltd..

67 4413/M/2004, 43 to 4745/M/2007, Ors nses, which we of the appeal of disallowance of (PF) amounting ssessing Officer, of ESI and PF sallowed by the date under the nt of employees the relevant Act urt in the case of 2833 OF 2016 d after due date Ld.

Counsel for ance of Rs.53.47 ’s contribution, given before us, ssing Officer for hs include any may be allowed paid before the and employee’s contribution should Supreme Court in C No.

10 of the appeal statistical purposes.

In Ground No.

1 of section 115JA of th is an entity incorpo Counsel referred to th the case of Kerela S 329 ITR page 91, w Supreme Court as finding of the Hon’ble 11.

Bef the hist was ins Tax Act the said reads a M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O be considered as per the deci Checkmate services P Ltd (supr of the assessee is accordingly al 11, the assessee has challenged he Act are not applicable over th orated by the Government of he decision of the Hon’ble Keral State Electricity Board Vs DC which has been further upheld reported in 447 ITR 193(SC e Kerala High Court is reproduce fore we examine the first question a brief sur tory of Section 115JB is necessary.

Chapte serted by the Finance Act of 1987 in the I t.

Section 115J was introduced for the first t d Chapter.

The relevant portion of the said S as follows: "S.115J.

Special provisions relating to c companies.- (1) Notwithstanding an contained in any other provision of this Act, in the case of an assessee being a company than a company engaged in the busine generation or distribution of electricity), the income, as computed connected cases. und Act in respect of any previous year relevant assessment year commencing on or after t day of April, 1988 but before the 1st day of 1991 (hereafter in this section referred to relevant previous year), is less than thirty pe of its boo of its book profit, the total income of such ass chargeable to tax for the relevant previous shall be deemed to be an amount equal to per cent of such book profit.

68 4413/M/2004, 43 to 4745/M/2007, Ors ision of Hon’ble ra).

The ground llowed partly for d that provisions he assessee who India.

The Ld. la High Court in CIT reported in by the Hon’ble C).

The relevant ed as under: rvey of er XII-B Income time by Section certain nything where y (other ess of e total er this t to the the 1st f April, as the er cent sessee s year o thirty if any a as the and (h) as redu It can b legal fic Such a (a) are busines (b) that only w assessm ending "total in is less being th shall b words, those C shall be purpose accordi income" express meanin account prescrip decreas subsequ details case.

H end wit 12.

Sub the Inc effect f M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O (1A) Every assessee, being a company, sha the purposes of this section, prepare its prof loss account for the relevant previous y accordance with the provisions of Parts II an Schedule VI to the Companies Act, 1956 1956) Explanation.- For the purposes of this s "book profit" means the net profit as shown profit and loss account for the relevant pr year prepared under sub-section (1A), as incr by - amount referred to in clauses (a) to (f) is debi case may be, the amount referred to in clau is not credited to the profit and loss accoun uced by, be seen from clause (1) that the provision cre ction regarding the total income chargeable fiction is applicable only to those assessees Companies except the Companies engaged ss of either generation or distribution of elec such a fiction is made applicable to the Comp ith reference to the previous year relevant ment year commencing after 1st April, 198 with the 1st April, 1991, (c) connected case ncome" of the Company as computed under t than thirty per cent of its "book profit". k profit".

The hat the total income for the purpose of asses be deemed to be 30% of the book profit.

In the Section prescribes 30% of the book pro Companies falling within the purview of the S e treated as the total income of the Company f e of income tax, irrespective of the fac ng to the accounts of the Company the " is less than thirty per cent of the book prof sion "book profit" itself is explained in the Sec ng, the net profit as shown in the profit an t for the relevant previous year prepared as p ption under sub-section (1A) and either increa sed by various amounts specified in the v uent sub-clauses appended to the Explanatio of which are not necessary for the purpose However, the operation of Section 115J came th 1991-92 assessment year onwards. bsequently, Section 115JA came to be inser come Tax Act by Finance Act 2 of 1996, from 1.4.1997.

The scheme of Section 115 Corporation of India Ltd..

69 4413/M/2004, 43 to 4745/M/2007, Ors all, for fit and ear in nd III of 6 (1 of section, in the revious reased ited or, uses (g) nt, and eates a to tax. which in the ctricity, panies to the 88 and es. the the Act fiction ssment n other ofits of Section for the ct that "total fit.

The tion as nd loss per the ased or various on, the of this e to an rted in , with 5JA is almost points o with re assessm ending exclusio either g under S importa section "Provide depreci rates w depreci loss acc meeting 210 of Provide adopts (1 of 1 under t depreci which h for such within t The fu necessa 13.

The the Inc from 1. reads a "115JB compan any oth assesse the tota any pr commen than te be deem tax pay the amo (2) Eve purpose M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O similar to the scheme of Section 115J.

Two of difference are that the new Section is app eference to the previous year relevant ment year commencing from 1st April, 199 with 1st April, 2001. ril, 2001.

Secondly, the e on of the Companies engaged in the busin generation or distribution of electricity is a Section connected cases.

115JA.

The third and ant change is that two provisos are added t (2) stipulating that - ed that while preparing profit and loss accou iation shall be calculated on the same metho which have been adopted for calculatin iation for the purpose of preparing the prof count laid before the company at its annual g g in accordance with the provisions of s f the Companies Act, 1956 (1 of 1956): ed further that where a company has adop the financial year under the Companies Act 1956), which is different from the previous the Act, the method and rates for calculat iation shall correspond to the method and have been adopted for calculating the depre h financial year or part of such financial year the relevant previous year". urther details of Section 115JA may n ary for the present purpose. en came to Section 115JB, which was inser come Tax Act by Finance Act of 2000 with .4.2001.

The relevant portion as it stands as follows:- B.

Special provision for payment of tax by c nies.- (1) Notwithstanding anything contain her provision of this Act, where in the case ee, being a company, the income-tax, paya al income as computed under this Act in resp revious year relevant to the assessment ncing on or after the 1st day of April, 2007 n per cent of its book profit, such book profi med to be the total income of the assessee a yable by the assessee on such total income sh ount of income-tax at the rate of ten per cent. ery assessee, being a company shall fo es of this section, prepare its profit and Corporation of India Ltd..

70 4413/M/2004, 43 to 4745/M/2007, Ors o major plicable to the 97 and express ness of absent d most to sub- unt, the od and ng the fit and general section pted or t, 1956 s year tion or d rates eciation falling not be rted in h effect today certain ned in e of an able on pect of t year is less it shall and the hall be for the d for the d loss account the pro the Com Provide includin (i) (ii) such ac (iii) depreci the pur and los annual of secti Provide adopts (1 of 1 under t (ii) th account (iii) depreci account calculat prepari for such within t The sch 115J a relevan 115JB as follo All the 3 fictions under earlier assessm the actu with the Compan M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O t for the relevant previous year in accordanc ovisions of Parts II and III of Schedule mpanies Act, 1956 (1 of 1956): ed that while preparing the annual ac ng profit and loss account,- the accounting policies; the accounting standards followed for pre ccounts including profit and loss account; the method and rates adopted for calculati iation shall be the same as have been adop rpose of preparing such accounts including ss account and laid before the company general meeting in accordance with the prov ion 210 of the Companies Act, 1956 (1 of 195 ed further that where the company has adop the financial year under the Companies Act 1956), which is different from the previous this Act,- (i) the accounting policies; he accounting standards adopted for preparin ts including profit and loss account; the method and rates adopted for calculati iation, shall correspond to the accounting p ting standards and the method and rat ting the depreciation which have been adop ng such accounts including profit and loss a h financial year or part of such financial year the relevant previous year". heme of the Section 115JB is similar to S and Section 115JA.

The difference in so far a nt for the present purpose between S and its fore-runners (Sections 115J and 115 ws: 3 Sections (Ss.115J, 115JA and 115JB) creat regarding the 'total income' (a defined expr Section 2(45)of the Act) of the Companies.

Wh two sections mandate the department to ma ment on a fictitious amount of 'total income' ual amount of total income computed in accor e I. accor e I.T Act is less than 30% of the book profits ny, Section 115JB mandates the departm Corporation of India Ltd..

71 4413/M/2004, 43 to 4745/M/2007, Ors ce with VI to ccounts eparing ing the ted for g profit at its visions 56): pted or t, 1956 s year ng such ing the olicies, tes for ted for account failing Section as it is Section 5 JA) is te legal ression hile the ake the where rdance s of the ment to resort t on the with th for the 115JA prepari loss acc that th shall be as for before accorda 1956.

It m the Com general every y general sheet a and los VI to th of main 15.

Ho Compan Compan the dec Act) it Act.

Th convene loss acc a gener Compan as there the othe Act, th includin annual form as notified in this the Com State G required Genera the Co account required and als M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O to the fiction in those cases where the tax pa basis of the 'total income' computed in accor he I.T.Act is less than a specified percentage years in issue) of the book profit.

Further, Se and 115JB also stipulate a definite man ng the annual accounts including the prof counts.

More specifically, Section 115JB stip he accounting policies, accounting standard e uniform both for the purpose of income tax a the information statutorily required to be p the annual general meeting conducte ance with Section 210 of the Companies may be mentioned here that under Section 1 mpanies Act every Company is mandated to l meeting in each year.

Section 210 mandate year the Board of Directors of the Company l meeting shall lay before the Company a b as at the end of the relevant period and also a ss account for the period.

Parts II and III of Sc he Companies Act specify the method and m ntaining the profit and loss account. owever, the appellant though is by defini ny under the Income Tax Act and deemed t ny for the purpose of Income Tax Act, (by vi claration under Section 80 of the Electricity S is not a Company for the purpose of Comp h of Comp herefore, the appellant is not obliged to eit e an annual general meeting or place its prof count in such general meeting.

As a matter o ral meeting contemplated under Section 166 nies Act is not possible in the case of the app e are no share holders for the appellant Boa er hand, under Section 69 of the Electricity S e appellant is obliged to keep proper acc ng the profit and loss account, and prepa statement of accounts, balance sheet, etc. in s may be prescribed by the Central Governme d in the official gazette.

The prescription of the regard is required to be made in consultatio mptroller and Auditor-General of India and a Governments.

Such accounts of the appella d to be audited by the Comptroller and A al of India or such other person duly authoris omptroller and Auditor-General of India ts so prepared along with the audit rep d to be laid annually before the State Legis so to be published in the prescribed manne Corporation of India Ltd..

72 4413/M/2004, 43 to 4745/M/2007, Ors ayable rdance e (7=% ections nner of fit and pulates ds, etc. as well placed, ed, in s Act, 166 of hold a es that in the balance a profit hedule manner ition a to be a irtue of Supply panies ther to fit and of fact, of the pellant ard.

On Supply counts, are an n such ent and e rules on with lso the ant are Auditor- sed by a.

The port is slature er and copies o at a re general 16.

Thu the acc "Compa the Inco by virtu under earlier) account Governm the Com legal fi pressed income 17.

It m legal fic which a deemed circums already purpose itself to the var the Sec shown section Compan specifie under appella form th the pre general Supply obligati account purpose such an so far a questio be cure provisio 18.

C 115JB 115J a M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O of such publication shall be made available fo easonable price, obviously for the benefit l public who wish to scrutinise the accounts. accounts. us, it can be seen that coming to the maintena counts, the appellant though is deemed to any" - both by virtue of operation of Section ome Tax Act for the purpose of Income Tax Ac ue of the definition of the expression "Com the Income Tax Act (which is already exa the appellant is required to keep and maint ts in a manner specified by the C ment, but not in the manner specifi mpanies Act.

Therefore, the question is wheth iction contemplated under Section 115JB c d into service while making the assessm tax payable by the appellant. must be remembered that Section 115JB cre ction regarding the total income of the asse are Companies.

The book profit of the Comp d to be total income of the assessee stances specified in the said Section, whic y noticed earlier.

The expression "book profit" f e of the said Section is explained in the S o mean the net profit as increased or decreas rious amounts shown in the various sub-clau ction.

The "net profit" itself must be the net pr in the profit and loss account of the Company (2) mandates that the profit and loss account ny is required to be prepared in the m ed therein.

Though in view of the requir Section 69 of the Electricity Supply Ac ant is required to maintain accounts in a dif han the one contemplated under Section 115 escription under Section 69 is only regardi l duty of the appellant for the purpose of Ele Act.

Nothing in theory prevents the Parliamen ing the appellant to prepare another profit an t as prescribed under Section 115JB(2) f e of the Income Tax Act.

The question is w n obligation is created under Section 115JB as the appellant is concerned.

In examining th n, the legislative history and the mischief sou ed by the Legislature in making the special de on, in our opinion, would be relevant.

Coming to the legislative history of S and its fore-runners - Se and 115JA - we have already noticed tha Corporation of India Ltd.. ndia Ltd..

73 4413/M/2004, 43 to 4745/M/2007, Ors for sale of the ance of o be a n 80 of ct and mpany" amined tain its Central ied in her the can be ment of eates a essees pany is in the ch are for the Section sed by uses of rofit as y.

Sub- t of the manner rement ct the ifferent 5JB(2), ng the ctricity nt from nd loss for the whether B (2) in he said ught to eeming Section ections at they provide Compan point of when S express appella exclusio issued (which I.T.O.

Micronu ELT 19 the ope rules of which e subsequ intende shall pr adminis s.(2), bu clearly legitima constru well-est to the authori the stat succinc Statuto paragra contemp executiv general such a constru entitled give th were ge opinion, circums sought to be ex 19.

Th respond introduc follows: "46.1 In and com M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ed for the determination of the total income nies by a fictitious process.

However, at the e f time when such a fictitious process is invent Section 115J was introduced, the S sly excluded from its operation bodies lik ant.

Coming to Section 115JA, though such e on is absent, the Central Board of Direct a Circular - No.762 dated 18th February is binding on the Department, see K.P.

Vargh [(1981) 131 ITR 597(SC)]* and Ra utrients v.

Collector of Central Excise [199 9 (SC)] excluding the bodies like the appellan ration of the said Section.

Though under the n f interpretation of statutes the omission of a existed in the statute at some point of time uent amendment would indicate that the legis ed not.

These two circulars of the CBDT are, resently point out, binding on the tax departm stering or executing the provision enacted i ut quite apart from their binding character, th in the nature of contemporanea expositio furn ate aid in the construction of sub-s. (2). ub-s. (2).

The uction by reference to contemporanea exposit tablished rule for interpreting a statute by ref exposition it has received from contemp ty, though it must give way where the langu tute is plain and unambiguous.

This rule has ctly and felicitously expressed in Crawfo ry Construction, 1940 Edn., where it is sta aph 219 that "administrative construction poraneous construction placed by administra ve officers charged with executing a s lly should be clearly wrong before it is overt a construction, commonly referred to as pr uction, although non-controlling, is nevert d to considerable weight, it is highly persuasi e benefit of such clause any more to thos etting the benefit of such exclusion clause, n, it is not an absolute rule.

The other atte stances, the context, the history and the m to be remedied by the amendment are all re xamined before reaching at definite conclusion he Circular No.762 not only is binding o dents, but also explains the purpos cing Section 115JA.

The relevant portion rea :- n recent times, the number of zero-tax comp mpanies paying marginal tax has grown.

S Corporation of India Ltd..

74 4413/M/2004, 43 to 4745/M/2007, Ors of the earliest ted, i.e.

Section ke the express Taxes 1998 - hese v. anadey 96 (97) nt from normal clause e by a slature as we ment in in sub- hey are nishing rule of tio is a ference mporary uage of s been ord on ated in n (i.e., ative or statute) turned; ractical theless ive". to se who in our endant mischief equired n. on the se in ads as panies Studies have sh earned dividen 46.2 Th 115JA on com dividen envisag per ce the Com the tota the Inc profit. normal per cen same.

46.3 Th rates of profits.

46.4 In oriented investm exempt purview 46.5 Si normal the boo units an have th cent of 115JA apply o of book total pro 46.6 Co and dis in deve facilities exempt to infra seen fr fact tha also z substan the sh M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O hown that in spite of the fact that companies substantial book profits and have paid han nds, no tax has been paid by them to the exch he Finance Act has inserted a new s of the Income-tax Act, so as to levy a minimu mpanies who are having book profits and p nds but are not paying any taxes.

The s ges the payment of a minimum tax by deem ent of the book profits computed mpanies Act, as taxable income, in a case al income as computed under the provisio come-tax Act, is less than 30 per cent of the Where the total income as computed und provisions of the Income-tax Act, is more th nt of the book profit, tax shall be charged he effective minimum alternate tax, at the e of taxation works out to 12 percent of the ncome arising from free trade zone (FTZ), d undertakings (EOUs), charitable act ment by a venture capital company and ed incomes (section 10) are excluded fro w of the alternate tax. ince the alternate tax is applicable only whe total income computed is less than 30 per c k profits, so long as the enterprises (other tha nd EOUs) earning income from export profits heir component of export income higher than of the book profits, the provisions of s will not be attracted.

In other words, the MA only to such cases where export profits formin k profits of an assessee exceed 7- per cent ofits. ompanies engaged in the business of gene stribution of power and those enterprises en eloping, maintaining and operating infrastr s under sub-section (4A) of section 80--I ed from the levy of MAT, so that the incentive astructure development is not affected".

It c rom the above that the legislature took note at a number of Companies paying marginal ta zero-tax has grown.

Such Companies e ntial book profits and paid handsome divide hare holders without paying any tax t Corporation of India Ltd..

75 4413/M/2004, 43 to 4745/M/2007, Ors s have ndsome hequer. me hequer. section um tax paying scheme ming 30 under where ons of e book der the han 30 on the existing e book export tivities, other om the ere the cent of an FTZ do not 70 per section AT will ng part of the eration ngaged ructure IA are e given can be of the ax and earned ends to to the exchequ Compan position policies of incom the boo Therefo in the Compan distribu develop facilities purview that su develop CBDT is 20.

If t introduc is subs cannot interpre of the C 21.

Ano the app Suprem 128 ITR [(2009) provisio indicati not app as follo "Section imposin provisio that he with th profits must f provisio be appl be the s general under accomp income comput to the n M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O uer.

Such a result was achieved by nies by taking advantage of the then existing n which permitted the adoption of dual acco s and practices, one for the purpose of compu me tax and another for the purpose of deter ok profits for the purpose of payment of divid ore, the amendment was made to plug the lo law.

However, the CBDT understood nies engaged in the business of generatio ution of electricity and Enterprises engag ping, maintaining and operating infrastr s, as a matter of policy, are not brought with w of the amendment (Section 115JA) for the r uch a policy would promote the infrastru pment of the country.

Such an understanding s binding on the department. that is the background in which Section 115 ced into the Income Tax Act, Section 115JB, stantially similar to Section 115JA, in our op have a different purpose and need n eted in a manner different from the understa CBDT of Section 115JA. other submission made by the learned coun pellant is that in view of the judgment me Court in C.I.T. v.

B.C.Srinivasa Setty [ R 294 (SC)] and CIT v.

Eli Lilly and Co. (India) 312 ITR 225 (SC)], where the compu on could not be applied in a particular case ive of the fact that the charging Section also ply.

It was held in B.S. ld in B.S.Srinivasa Setty's case ( ws:- n 45 is a charging section.

For the purp ng the charge, Parliament has enacted d ons in order to compute the profits or gains ead.

No existing principle or provision at va hem can be applied for determining the char and gains.

All transactions encompassed b fall under the governance of its compu ons.

A transaction to which those provisions c lied must be regarded as never intended by s subject of the charge.

This inference flows fro l arrangement of the provisions in the I.T.Act, each head of income the charging provis panied by a set of provisions for computin subject to that charge.

The character tation provisions in each case bears a relati nature of the charge.

Thus, the charging sectio Corporation of India Ltd..

76 4413/M/2004, 43 to 4745/M/2007, Ors such g legal ounting utation rmining dends. oophole d that on and ged in ructure hin the reason uctural g of the 5JA is which pinion, not be anding nsel for of the [(1981) ) P.Ltd. utation e, it is would (supra) ose of etailed under ariance rgeable by s.45 utation cannot s.45 to om the where sion is ng the of the ionship on and the co integrat comput that su chargin conclud the cha quantify is again the legi the enti of inco betwee provisio provisio particul whethe That p statutor In Eli L apex Co "On the the cha under t that in [1981] section an inte comput that su chargin 22.

Ano to the Governm holders for the In the f of the p enquiry amendm opinion be pres the ass Act.

202, 114, 3867/M/2008, 474 2452/M/2011 & O omputation provisions together constitut ted code.

When there is a case to whic tation provisions cannot apply at all, it is e uch a case was not intended to fall with ng section.

Otherwise, one would be driv de that while a certain income seems to fall arging section there is no scheme of computat fying it.

The legislative pattern discernible in t nst such a conclusion. onclusion.

It must be borne in min islative intent is presumed to run uniformly th ire conspectus of provisions pertaining to each ome.

No doubt there is a qualitative diff n the charging provision and a compu on.

And ordinarily the operation of the ch on cannot be affected by the construction lar computation provision.

But the question h er it is possible to apply the computation pro pertains to the fundamental integrality o ry scheme provided for each head".

Lilly and Co. (India) P.Ltd. case (supra) als ourt has held as follows:- e question as to whether there is any inter-link arging provisions and the machinery prov the 1961 Act, we may, at the very outset, po the case of CIT v.

B.C.Srinivasa Setty repo 128 ITR 294 this court has held that the ch and the computation provisions together con egrated code.

When there is a case to whi tation provisions cannot apply at all, it is e uch a case was not intended to fall with ng section". other reason is that the appellant or bodies s appellant, which are totally owned b ment - either State or Central - have no s.

Profit, if at all, made by the appellant wo benefit of entire body politic of the State of K final analysis, all taxation is meant for the w people in a Constitutional Republic.

Therefo y as to the mischief sought to be remedied ment becomes irrelevant.

Therefore, we are n that the fiction fixed under Section 115JB ssed into service against the appellant while m sessment of the tax payable under the Incom Corporation of India Ltd..

77 4413/M/2004, 43 to 4745/M/2007, Ors te an ch the evident hin the ven to within tion for the Act nd that hrough h head ference utation harging n of a here is ovision. of the so, the king of visions oint out rted in harging nstitute ich the evident hin the similar by the share ould be Kerala. welfare ore the by the of the cannot making me Tax 16.1 The Hon’ble sup 2015 upheld the deci under: 2.

The Division Electric 118/[20 3.

We h conside interfer appeal.

16. ppeal.

16.2 We have heard dispute and perused Kerala High Court(su wholly owned by the either to convene an loss account in such High Court has firs maintain its books of Government, but not 1956, which is the re Act, thus section 115 companies.

Secondl observed that Com generation were state 115JA of the Act an Income-tax authoritie who are totally owne M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O preme in Civil No.

151,152, 15 ision of Hon’ble Kerala High Cou judgment under appeal was rendered b n Bench of the Kerala High Court in Kerala city Board v.

Dy.

CIT [20101 8 taxman 011]196 Taxman 1/[2010] 329 ITR 91. have gone through the circumstances on recor ered the rival submissions.

In our view rence is called for.

We, therefore, dismis rival submission of the parties d the relevant material on reco upra) observed that the assesse e Government; therefore, it was annual general meeting or plac h general body meetings.

The stly, held that the assessee w f accounts in a manner specified t in the manner specified in the equirement of provisions of secti 5JA should not be applicable o ly, referred to the CBDT Circu mpanies engaged in business ed to be exempted from the prov nd such an understanding was es.

Further, held that assessee ed by the Government, have n Corporation of India Ltd..

78 4413/M/2004, 43 to 4745/M/2007, Ors 54 and 13571 of urt observing as by the a State nn.com rd and w, no ss this on the issue in rd.

The Hon’ble ee is a company s not obliged to ce its profit and Hon’ble Kerala was required to d by the Central Companies Act, ion 115JA of the over government ular (supra) and s of electricity vision of section binding on the or body similar, no shareholders, thus profit would b taxation being mean sought to be remedi section 115JA/115J section 115JB( in ou service against the as 16.3 The assessee b Government of Indi Hon’ble Kerala Hig Supreme Court, we h under the provisions ground of appeal of th 17. of th 17.

The ground Nos plea to ground No.

1 assessee on ground N the appeal are ren infructuous.

18.

The ground Nos consequential in nat adjudicated upon and M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O be for the benefit of the publi nt for the welfare of the peopl ied by way of amendment (i.e.

B becomes irrelevant, therefore ur case section 115JA) cannot ssessee. before us being a company whol a, therefore, in view of the gh Court (supra), as upheld hold that the assessee is not lia s of section 115JA of the Act.

A he assessee is allowed. s.

12 to 16 have been raised a 11, since we have already allow No.

11 , therefore, the ground N dered academic and therefore s.

17 and 18 of the appeal of t ure and therefore same are no d same dismissed as infructuou Corporation of India Ltd..

79 4413/M/2004, 43 to 4745/M/2007, Ors ic at large and le, the mischief introduction of e, the fiction of be pressed into lly owned by the decision of the by the Hon’ble able to be taxed Accordingly, the as an alternative wed relief to the Nos.

12 to 16 of e dismissed as the assessee are t required to be us.

AY 1999-2000 19.

Now, we take up The grounds rai 1.

The confirm Rs.

1 collect 2.

The confirm Rs.2,2 Decom 3.

The confirm Rs.4,9 levy co 4.

The confirm Rs.322 and M 5.

Withou learne the a Moder receip 6.

The confirm Rs.2,9 levy co 7.

The confirm Rs.206 and D 8.

Withou learne a porti Develo receip M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O p the appeal of the assessee for ised by the assessee are reprodu learned Commissioner (Appeals) ming as income of the appellant an 1,986.21 lacs, being Decommission ted by the appellant. learned Commissioner (Appeals) ming as income of the appellant an 278.46 lacs, being interest cre mmissioning Fund. learned Commissioner Appeals ming as income of the appellant an 965.52 lacs, being Renovation & Mod ollected by the appellant. learned Commissioner (Appeals) ming as income of the appellant an 2. lant an 2.09 lacs, being interest credited to R Modernisation fund. ut prejudice to Grounds 3 and 4 a ed Commissioner (Appeals) erred in ho amount collected towards Reno rnisation levy was not in the nature of t exempt from tax. learned Commissioner (Appeals) ming as income of the appellant an 979.31 lacs, being Research & De ollected by the appellant. learned Commissioner (Appeals) ming as income of the appellant an 6.57 lacs, being interest credited to Development fund. ut prejudice to Grounds 6 and 7 a ed Commissioner (Appeals) erred in ho ion of the amount collected towards R opment levy was not in the nature of t exempt from tax.

80 4413/M/2004, 43 to 4745/M/2007, Ors r AY 1999-2000. uced as under: erred in amount of ning Levy erred in amount of edited to erred in amount of dernisation erred in amount of Renovation above, the olding that vation & of a capital erred in amount of evelopment erred in amount of o Research above, the olding that Research & f a capital 9.

9.

Th confirm of taxi been r incurre Sr.

N 1.

2.

10. learne directi the de to th expen Comm directe deprec subseq 11. in co Comm lacs u the cou The le apprec appell were n 12. holdin the ap 13. confirm in hold not de 14. confirm M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O he learned Commissioner (Appeals) ming the action of the Assistant Com ing as income the following amounts reduced by the appellant from the ex ed during construction: No.

Particulars Consultancy receipts Other Income (including interes income - other than on surplus funds) Total Without prejudice to Ground 9 a ed Commissioner (Appeals) erred in n ing the Assistant Commissioner to r epreciation allowable to the appellant e exclusion of the income redu diture during construction.

The missioner (Appeals) ought to hav ed the Assistant Commissioner to reco ciation for the assessment year 1999 quent assessment years.

11. years.

The learned Commissioner (Appe onfirming the action of the missioner of disallowing an amount of under section 43B claimed by the ap urse of the assessment proceedings. earned Commissioner (Appeals) ough ciated that the amounts were pai lant during the previous year and not to be disallowed.

The learned Commissioner (Appeals ng that the provisions of section 115JA ppellant.

The learned Commissioner (Appeals ming the action of the Assistant Com ding that the other income of the appe erived from the business of generation The learned Commissioner (Appeals ming the action of the Assistant Com Corporation of India Ltd..

81 4413/M/2004, 43 to 4745/M/2007, Ors erred in mmissioner which had xpenditure Amount 103.52 st s 598.89 702.41 above, the not clearly re-compute t pursuant uced from learned ve clearly ompute the -2000 and eals) erred Assistant f Rs.87.74 ppellant in ht to have id by the d therefore s) erred in JA apply to s) erred in mmissioner ellant was of power. s) erred in mmissioner in incl book p Sr.

No. a) b) c) d) e) f) The le apprec linked were genera amoun accord 15. not al the ap lacs, in 16. holdin assess year 1 which depos verifyi appea 17. the l confirm in mak prepar (Appea adjust Accoun to sect M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O luding the following amounts as bei profits under section 115JA: Particulars Interest income on deposits with bank Interest income from Inter Co Deposits Interest on staff loan Interest Others Delayed payment charges Miscellaneous receipts Total earned Commissioner (Appeals) ough ciated that the above incomes were in d to the business of generation of p therefore derived from the bus ation of power.

On this basis, t nts were to be excluded from book dance with Explanation (iv) to section 1 The learned Commissioner (Appeals llowing deduction for expenditure in ppellant in earning the income of Rs. ome of Rs. n computing the book profits of the app The learned Commissioner (Appeals ng that there is no difference in fac sment year in appeal vis-à-vis the as 1998-1999 as regards the source of f the amounts were placed in b its.

The Commissioner (Appeals) err ing the facts for the assessment y al.

Without prejudice to Grounds 12 to learned Commissioner (Appeals) ming the action of the Assistant Com king adjustments to the Profit and Los red by the appellant.

The learned Com als) ought to have appreciated tments can be made to the Profit nt, other than those specified in the Ex tion 115JA(2).

82 4413/M/2004, 43 to 4745/M/2007, Ors ing part of Amount ks 10,077.98 orporate 267.46 225.12 222.63 9,312.97 694.82 20,800.98 ht to have nextricably power and siness of the above profits in 115JA (2). s) erred in ncurred by 20,800.98 ppellant. s) erred in cts for the ssessment funds from ank fixed red in not ear under 16 above, erred in mmissioner ss account mmissioner that no and Loss xplanation 18. withou 20.

The additional are reproduced as un 1.

The le erred 143(3) procee Comm bad in jurisdi Comm 3.

Your a vary, appea any tim as the 20.1 The identical ad been admitted in discussion and follow Traders P Ltd (sup following our finding appeal for year under 21.

Now, we take up The ground Nos.

1 commissioning levy M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 18.

Each one of the above grounds of ut prejudice to the other. grounds filed by the assessee nder: ground of appeal is independent an dice to other grounds of appeal file ng disposal. earned Assistant Commissioner of In in passing assessment order und ) dated 11th March 2002 where the as edings were initiated by the missioner of Income Tax.

Such order n law, in the absence of an order tra iction under section 127 to the missioner of Income Tax. ncome Tax. appellants crave leave to add, alte omit or substitute the aforesaid al or add a new ground or grounds of me before or at the time of hearing of ey may be advised dditional grounds raised by the appeal for AY 1998-99, but wing finding of the Tribunal in pra), same have been dismisse g in AY 1998-99, the additional r consideration are accordingly d p the regular grounds of appeal and 2 of the appeal relate to y by the assessee and the intere Corporation of India Ltd..

83 4413/M/2004, 43 to 4745/M/2007, Ors f appeal is on 18.07.2018, nd without ed earlier, ncome Tax der section ssessment e Deputy passed is ansferring, Assistant er, amend, ground of f appeal at the appeal e assessee have t after detailed the case Stock ed.

Accordingly, l grounds of the dismissed. of the assessee. receipt of de- est credited on the de-commission being identical to gro 1998-99, therefore, fo for assessment year whereas the ground N 22.

The ground Nos amount of receipt o and modernization credited to the reno In ground no.

5, the a Rs.

4965.52 lakhs levy as capital rece grounds have alread assessment year 199 the appeal for assess decided mutatis muta 23.

The ground Nos amount of Rs.

2979 development levy, research and develop being in the nature o been decided by us w appeal of the asses M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ing fund respectively.

The iss ound Nos.

5 and 6 raised in a ollowing our finding in ITA No.

2 r 1998-99, the ground No.

1 No.

2 is allowed for statistical pu s.

3 and 4 of the appeal of the as of Rs.

4965.52 lakhs by way n levy and interest of Rs. ovation and modernization fu assessee has prayed for treating by way of renovation and eipt.

The issues in dispute r dy been adjudicated by us in 98-99 ,therefore, following our fin sment year 1998-99, the issues andis. s.

6 to 8 of the appeal of the as 9.31 lakhs collected by way of interest of Rs.

206.57 lak pment fund and research and d of capital receipt. l receipt.

The identica while adjudicating ground Nos. ssee for assessment year 1998 Corporation of India Ltd..

84 4413/M/2004, 43 to 4745/M/2007, Ors sues in dispute assessment year 202/Mum/2004 1 is dismissed, urposes,. ssessee relate to y of renovation 322.09 lakhs und respectively. g the receipt of modernization raised in above the appeal for nding in ground s in dispute are ssessee relate to f research and khs credited to development levy al grounds have .

3 and 4 of the 8-99 ,therefore, respectfully following of the assessee are de 24.

The ground No assessing of ‘consu interest income amo ‘income from other s by us while adjudica for assessment year assessment year 199 mutandis.

25.

The ground No prejudice to ground depreciation allowanc during construction o project eligible for de ld CIT(A) has already “12.1.

With re submitted as u "The learned A Rs.7 lacs as p expenditure ha assessment ye deduction.

The appellant i "The prior perio the audited An M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O g the same, the ground Nos.

6 to ecided mutatis mutandis. o.

9 of the appeal of the asse ltancy receipt’ and ‘other inc ounting to Rs.702.41 lakhs u sources’.

The identical issue ha ating ground no.

7 of the appeal r 1998-99.

Therefore, following 98-99 the ground no.

8 is adju .

10 of the appeal has been No.9 of the appeal and rela ce consequent to treatment of i of the projects.

As far as deprec epreciation in the year under co directed the Assessing Officer a eference to this ground of appeal, the Ld. under: Additional Commissioner erred in disallowing prior period expenditure.

The appellant subm ad crystallized during the previous year r ear 1998-99, the said expenditure was fully in the return of income at Note 4 had submitte od expenses (other than depreciation) as per nnual Accounts are Rs.2782.25 lacs prior t Corporation of India Ltd.. ndia Ltd..

85 4413/M/2004, 43 to 4745/M/2007, Ors o 8 of the appeal essee relates to come’ including under the head as been decided l of the assessee g our finding in udicated mutatis raised without ates to claim of income incurred iation on cost of nsideration, the as under: A.R. inter-alia g an amount of mits that as the relevant to the allowable as a ed as under: Schedule 13 to to netting off of prior period inc period expens accordingly to off date for acc expenditure is adjustments a allowable expe The details of Report at Sche as a deduction The learned A requested the a also requeste disallowances appellant subm 27, 2000, Dece furnished in re also provided expenses aggre the same coul proceedings.

The learned A the legal expen The appellant have apprecia expenditure is The appellant f the previous ye ought to have b The appellant s that obtaining there are at t various expend appellant bein otherwise allow In view of the Commissioner aggregating to learned Additio the expenditure of giving effect M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O come of Rs.1155.11 lacs.

The liability in respe ses have arisen during the current ye the method of accounting followed by the as counting liabilities for the year is 30th June. accounted for in the subsequent year.

The s arise on this account from year to year an enditure for the Assessment Year 1998-99." the prior period adjustments were provided edule 13.

The net amount of Rs.2,583.13 lac n by the appellant. dditional Commissioner vide letter dated Au appellant to submit details of the prior period ed the appellant to make submissions should not be made in respect of the said ex mitted the information requested vide letters d ember 12, 2000 and January 12, 2001.

The in espect of each item of expenditure and exp in that respect.

However, information in r egating to Rs. ing to Rs.7 lakhs was not received by the ld not be furnished during the course of t dditional Commissioner in the assessment o nses incurred are not deductible in the absenc submits that the learned Additional Commis ated that producing evidence in respect of not possible for an organisation of the size of further submits that the expenditure had crys ear relevant to the assessment year 1998-99 been allowed by the Additional Commissioner submits considering the size of the organisati information from various stations located at times instances where there is a delay in diture.

Such delays in accounting should no ng denied a deduction for expenditure wh wable above, the appellant submits that the lear may be directed to allow deduction for the o Rs.7 lacs.

Alternatively, the appellant su onal Commissioner may be directed to allow e after verifying the details that may be produ to the appellate order." Corporation of India Ltd..

86 4413/M/2004, 43 to 4745/M/2007, Ors ect of such prior ear.

Secondly, ssessee the cut- .

Thereafter the said prior year's nd hence is an d in the Annual cs was claimed ugust 16, 2000 d expenses and s as to why xpenditure.

The dated November nformation was planations were respect of legal e appellant and the assessment order held that ce of details. ssioner ought to f every item of f the appellant. stallized during 9 and therefore r. ion and the fact t remote places n accounting of ot result in the hich has been rned Additional legal expenses ubmits that the w deduction for uced at the time 25.1 Since the grou dismissed, therefore allowance in subseq Assessing Officer, th assessee should hav income-tax authority the matter to the file consider the request ground is accordingly 26.

The Ground No towards contribution as allowable under th before due date of fili the decision of Hon’b services p ltd CIVIL contribution to provi act is not allowable. clear by way of ev employee’s contributi the interest of justi Officer for verificatio ground No. ground No.

11 of the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O und no.

9 of the appeal ha e, the consequent claim o quent assessment years, if not en it is a matter of rectification ve sought proper remedy befo y.

However, in the interest of jus e of the Assessing officer for ex t of the assessee in accordance y allowed for statistical purpose o.

11 relates to disallowance of n to provident fund and claimed he provisions of section 43B of ing of return of income.

We find ble Supreme Court in the case L APPEAL NO.

2833 OF 2016 ident fund paid after due date In the case , before us ,it has vidences that the payment re ion or to employer’s contributio ice, we restore this matter to on and decide in accordance appeal is allowed for statistical Corporation of India Ltd..

87 4413/M/2004, 43 to 4745/M/2007, Ors s already been of depreciation allowed by the n, for which the ore the relevant stice, we restore xamination and e with law.

The .

Rs 87.74 lakhs by the assessee the Act as paid d that in view of e of Checkmate , the employee’s under relevant not been made elates either to on , therefore, in o the Assessing with law.

The purpose.

27.

1 of section 115JA are identical ground has 1998-99 and therefo 1998-99, the ground mutandis.

28.

The ground Nos alternatively to groun has been already adj these grounds are re dismissed as infructu 29.

In ground No. issue of adjustments have already held th assessee; therefore, t as infructuous.

AY 2000-01 30.

Now we take up 2000-01.

The ground 05/05/2004 are repr “The appellant 2004 passed b M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 12, the assessee has challenged not applicable in the case of th s been adjudicated by us in a ore following our finding in a d No.

12 of the appeal is adju s.

13 to 16 have been raised b nd No.

12 of the appeal.

Since djudicated in favour of the asse endered academic only.

Accord uous. cord uous.

17 of the appeal, the assessee to book profit u/s 115JA of th hat section 115JA is not appl this issue is merely academic h p the appeal of the assessee for a ds raised by the assessee in form roduced as under: t company objects to the appellate order da by the Commissioner of Income-tax (Appeals)- Corporation of India Ltd..

88 4413/M/2004, 43 to 4745/M/2007, Ors d that provisions he assessee.

The assessment year assessment year dicated mutatis by the assessee e ground No.

12 essee, therefore, dingly, same are e has raised the he Act.

Since, we licable over the hence dismissed assessment year m No.

36 filed on ated 15 March - III, Mumbai [ CIT (A)] under following groun Decommission 1.

The learned amount of by the appe 2.

The learned amount o Decommiss Renovation & 3.

The learned amount of R collected by 4.

The learned amount of and Modern 5.

Without pre in holding Modernisat accordingly Research & D 6.

The learned amount of collected by 7.

The learned amount of Developmen 8.

Without pre in holding t Developmen accordingly Income arisin 9.

The learne Commission been reduc construction Sr.

Par Sta Inte Con M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O section 250 of the Income Tax Act, 1961 ('th nds: ning charges d CIT(A) erred in confirming as income of the Rs.

2,198.10 lacs, being Decommissioning L ellant. d CIT (A) erred in confirming as income of the of Rs.2,802.93 lacs, being interest sioning Fund. & Modernisation levy d CIT(A) erred in confirming as income of the Rs.

5,495.24 lacs, being Renovation & Mode y the appellant. d CIT(A) erred in confirming as income of the Rs.

1,398.90 lacs, being interest credited nisation fund. ejudice to Grounds 3 and 4 above, the learne g that the amount collected towards R tion levy was not in the nature of a capita y taxable.

Development levy d CIT(A) erred in confirming as income of the Rs.3,297.14 lacs, being Research & Deve y the appellant. appellant. d CIT (A) erred in confirming as income of the Rs.885.08 lacs, being interest credited to R nt fund. ejudice to Grounds 6 and 7 above, the learne that a portion of the amount collected toward nt levy was not in the nature of a capita y taxable. ng from / during construction activities ed CIT(A) erred in confirming the action of ner of taxing as income the following amoun ced by the appellant from the expenditure in n: rticulars Amoun Lacs) aff loan 59.80 erest on others 440.83 nsultancy receipts 64.49 Corporation of India Ltd..

89 4413/M/2004, 43 to 4745/M/2007, Ors he Act) on the e appellant an Levy collected e appellant an credited to e appellant an ernisation levy e appellant an to Renovation d CIT(A) erred Renovation & al receipt and e appellant an elopment levy e appellant an Research and d CIT(A) erred ds Research & al receipt and the Assistant nts which had ncurred during nt (Rs. in 3 Oth inco fun Tot Disallowance 10.

The learne Commission stock of Rs Taxability un 11.

The lea 115JA app 12.

The learne Commission not derived 13.

13.

The lea Commission book profits Sr.

P a.

I b.

I D c.

I d.

I e.

G f.

M g.

I c T The learned were inextr were theref this basis, in accordan 14.

The learne incurred by in computin 15.

15.

The lea facts for th years 1998 which the a CIT(A) erred appeal.

202, 114, 3867/M/2008, 474 2452/M/2011 & O her Income (including interest ome – other than on surplus nds) 1,998. tal 2,563 for provision made for obsolete stock d CIT (A) erred in confirming the action of ner of disallowing the provision made for loss .

36.22 lacs nder section 115JA of the Act amed CIT(A) erred in holding that the provisi ly to the appellant. ed CIT(A) erred in confirming the action of ner in holding that the other income of the a d from the business of generation of power. of power. arned CIT(A) erred in confirming the action of ner in including the following amounts as s under section 115JA: Particulars Interest income on deposits with banks Interest income from Inter Corpor Deposits Interest on staff loan Interest Others Gain on sale of fixed assets Miscellaneous receipts Income on R & M funds and R & D fun credited to the respective funds Total d CIT (A) ought to have appreciated that the a ricably linked to the business of generation fore derived from the business of generation the above amounts were to be excluded from nce with Explanation (iv) to section 115JA(2). d CIT(A) erred in not allowing deduction fo y the appellant in earning the income of Rs.

13 ng the book profits of the appellant. arned CIT(A) erred in holding that there is no he assessment year in appeal vis-à-vis the 8-1999 and 1999-2000 as regards the source amounts were placed in bank fixed deposits d in not verifying the facts for the assessme Corporation of India Ltd..

90 4413/M/2004, 43 to 4745/M/2007, Ors 59 3.71 the Assistant s and obsolete ions of section the Assistant appellant was f the Assistant being part of Amount (Rs.

In Lacs) 10.870.92 rate 184.75 364.37 445.17 10.96 560.24 nds 841.79 13,278.20 above incomes of power and n of power.

On m book profits or expenditure 3,278.20 lacs, o difference in e assessment of funds from s.

The learned nt year under 16.

Without pre in confirmi adjustment The learne can be ma specified in 31.

Further, the ass which are reproduced 1.

The ground of app of appeal filed earl 2.

The learned Assi assessment order assessment proce Income Tax.

Such transferring, jurisd Income Tax.

3.

Your appellants cra aforesaid ground o time before or at th 31.1 Before us, the submission for AY additional ground r assessee has challen was issued by the De assessment order ha income-tax.

He refe assessment year 98- department, the sp assessed under tho jurisdiction of norma was transferred to R M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ejudice to Grounds 11 to 15 above, the learne ing the action of the Assistant Commission ts to the Profit and Loss account prepared by d CIT(A) ought to have appreciated that no ade to the Profit and Loss Account, othe n the Explanation to section 115JA(2). sessee filed additional ground o d as under: eal is independent and without prejudice to lier, pending disposal. istant Commissioner of Income Tax erred under section 143(3) dated 26th February 20 eedings were initiated by the Deputy Com order passed is bad in law, in the absenc diction under section 127 to the Assistant Co ave leave to add, alter, amend, vary, omit or of appeal or add a new ground or grounds of he time of hearing of the appeal as they may b Ld Counsel for the assessee 1998-99.

The ld DR submitt raised for the year under con nged that notice under section 1 eputy Commissioner of income-t as been passed by the Asst C erred to his submission in -99 that post restructuring in pecial ranges were abolished ose special ranges were tran al ranges.

Accordingly, the case Range 3(2), Mumbai, under th Corporation of India Ltd..

91 4413/M/2004, 43 to 4745/M/2007, Ors ed CIT(A) erred ner in making the appellant. o adjustments er than those on 18/07/2018, other grounds d in passing 003 where the mmissioner of ce of an order mmissioner of substitute the appeal at any be advised relied upon his ted that in the nsideration, the 143(2) of the Act tax, whereas the Commissioner of the appeal for the Income tax and all cases nsferred to the of the assessee e charge of the same Commissioner The scanned copy o income-tax-III, Mumb alphabet N, under th under: M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O i.e.

Commissioner of income-t of notification issued by the C bai, distributing the case i.e C he range 3(2), filed by the ld DR Corporation of India Ltd..

92 4413/M/2004, 43 to 4745/M/2007, Ors tax-III, Mumbai.

I, Mumbai.

Commissioner of Company having R is extracted as M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Corporation of India Ltd..

93 4413/M/2004, 43 to 4745/M/2007, Ors 31.2 In view of retur consideration being m was transferred to u Range 3(2), Mumbai] Assistant/ Deputy C issue of notice unde officer in the rank o subsequently, he m officer in the rank of been posted, and th the officer in the Therefore there is n M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O rned income of the assessee for more than threshold limit presc unit i.e. circle 3(2) , Mumbai which was headed by the office ommissioner of Income-tax .

At er section 143(2), the unit was f the Deputy Commissioner of ight have been transferred an f Asst Commissioner of income herefore assessment order has rank of Asst Commissioner no change in the jurisdiction o Corporation of India Ltd..

94 4413/M/2004, 43 to 4745/M/2007, Ors r the year under cribed, the case [ falling under er in the rank of t the time of the s headed by the Income-tax but nd in his place -tax, must have been passed by of income-tax. of the assessee, because it remained at the time of initiati time of completion of 31.2 We have heard jurisdiction in passi assessee.

The identic have been admitted discussion and follow Traders P Ltd (sup following our finding appeal for year under 32.

Now we take u The ground No. one a receipts of ₹ 2,198.1 interest of rupees 28 respectively.

The issu and 6 raised in asse finding in ITA No.

2 the issues are decide 33.

The ground Nos amount of receipt o and modernization M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O with the same unit i.e. circle-3( ion of assessment proceeding a f the assessment proceeding. rival submission of the parties ing the assessment order cha cal additional grounds raised b in appeal for AY 1998-99, bu wing finding of the Tribunal in pra), same have been dismisse g in AY 1998-99, the additional r consideration ideration are accordingly d up the regular ground raised b and two of the appeal of the as 10 lakhs by way of decommiss 802.93 credited to decommissio ues in dispute being identical to essment year 1998-99, therefor 202/Mum/2004 for assessment d mutatis mutandis. s.

5495.24 lakhs by way n levy and interest of Rs.

95 4413/M/2004, 43 to 4745/M/2007, Ors 2) or Range-3(2) as well as at the on the issue of allenged by the by the assessee ut after detailed the case Stock ed.

Accordingly, l grounds of the dismissed. by the assessee. sessee, relate to sioning levy and oning levy fund o ground Nos.

5 re, following our t year 1998-99, ssessee relate to y of renovation 1398.90 lakhs credited to the reno In ground no.

5 , the of Rs.

5495.24 lakh levy as capital rece grounds have alread assessment year 199 for assessment year mutatis mutandis.

34.

3297 development levy research and develop being in the nature grounds have been d and 4 of the appeal ,therefore, respectfull the appeal of the asse 35.

The ground No assessing of ‘consu interest income amo other sources.

The i adjudicating ground assessment year 19 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ovation and modernization fu e assessee has prayed for treati hs by way of renovation and eipt.

The issues in dispute r dy been adjudicated by us in 8-99 ,therefore, following our fin r 1998-99, the issues in dispu s.

6 to 8 of the appeal of the as 7.14 lakhs collected by way of , interest of Rs.

885.08 lak pment fund and research and d of capital receipt respectively decided by us while adjudicating of the assessee for assessmen ly following the same the groun essee are decided mutatis muta o.

9 of the appeal of the asse ltancy receipt’ and ‘other inc ounting to Rs.2563.71 lakhs a identical issue has been decid d no.

7 of the appeal of th 998-99.

Therefore, following Corporation of India Ltd.. ndia Ltd..

96 4413/M/2004, 43 to 4745/M/2007, Ors und respectively. ing the receipt modernization raised in above the appeal for nding in appeal ute are decided ssessee relate to f research and khs credited to development levy y.

The identical g ground Nos.

3 nt year 1998-99 nd Nos.

6 to 8 of andis. essee relates to come’ including as income from ded by us while he assessee for our finding in assessment year 19 adjudicated mutatis m 36.

The ground No provision for the loss submitted unit -wise which is reproduced TAPS MApS KAPS Total 36.1 Regarding the u of ₹2,70,754/- repre The Assessing Officer but regarding the oth were provided by th Therefore he disallow computing the ass disallowance observin “15.2.

I have by the learne case.

I am in amount to me opinion there book a loss which are disallowance M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 998-99 the ground no.

8 of mutandis. o.

10 of the appeal relates to /obsolete stock of ₹ 36,22, 537/ e breakup of provision of loss/ as under: Unit Rs.

7,82,025 25,69,758 2,70,754 36,22,527 unit KAPS, the assessee submitt esented actual loss due to fire r accordingly allowed the said c her provisions for slow-moving he assessee as how same be wed the balance amount of ₹ 33 essed income.

CIT( ng as under: considered the foregoing submissions.

Th ed A.R. is not applicable to the facts of agreement with the AO that slow movin ean that the same have become useless.

I is no plausible justification for the app by resorting to the revaluation of stock meant for the appellant's own inte is.

Therefore, confirmed.” Corporation of India Ltd..

97 4413/M/2004, 43 to 4745/M/2007, Ors the appeal is disallowance of /-.

The assessee /obsolete stock, ted that amount in the godown. laim of the loss, stock no details ecame obsolete.

3.52 lakhs while (A) upheld the he case law cited f the appellant's ng spares do not In my considered pellant to seek to k of spare parts ernal use.

The 36. e.

The 36.2 Before us the le provision was made o value of slow-moving said provision was challenged in the pa on following decision a.

CIT v 286)De b.

CIT v 136)De c.

CIT v 636)(D 36.3 We have heard dispute and perused claim has been allow for allowing in the Supreme Court in the 1985 AIR 1585, 19 heroism in continuin pointed out.

Though on various decisions such stock and how before the lower auth been submitted to e Unless properly iden making provision fo M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O earned counsel of the assessee on the basis of a committee set g stock/obsolete stock.

It was being made consistently and st.

The learned counsel for the s in support of its claim: Hotline Teletube & Components Ltd elhi HC) Hughes Communications India Ltd. elhi HC) Becton Dickinson (India (P.) Ltd.

Delhi HC) rival submission of the parties d the relevant material on rec wed in the earlier year same ca year under consideration als e case of Distributor (baroda) P 985 SCR Supl. (1) 778 held t ng the error and it should be the learned counsel of the ass cited, but the factual informati w same became obsolete was horities.

Before us also no such establish that relevant stock be ntified the obsolete stock or a s or such an obsolete stock is Corporation of India Ltd..

98 4413/M/2004, 43 to 4745/M/2007, Ors submitted that t up to ascertain submitted that d has not been e assessee relied d. (175 Taxman . (215 Taxman (214 Taxman on the issue in ord.

If a wrong annot be ground so.

The Hon’ble Private Limited that there is no corrected when essee has relied ion of the list of not submitted h evidences have ecame obsolete. scientific way of produced with documentary evidenc Therefore, we do not the issue in dispute ground No.

10 of the 37.

The ground No applicability of secti identical ground has 1998-99 and therefo 1998-99, the ground assessee.

38.

The ground Nos alternatively to groun has been already adj these grounds are re dismissed as infructu 39. fructu 39.

In ground No. issue of adjustments have already held th assessee, therefore, t as infructuous.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ce, the claim of the assessee can find any error in the order of th e, and accordingly, we uphold appeal of the assessee is dismis o.

11 of the appeal of the asse ion 115JA or the case of the s been adjudicated by us in a ore following our finding in a d No.

11 of the appeal is allow s.

12 to 15 have been raised b nd No.

11 of the appeal.

Accord uous.

16 of the appeal, the assessee to book profit u/s 115JA of th hat section 115JA is not appl this issue is merely academic h Corporation of India Ltd..

99 4413/M/2004, 43 to 4745/M/2007, Ors nnot be allowed. he Ld.

CIT(A) on the same.

The ssed. essee relates to e assessee.

The assessment year assessment year wed in favour of by the assessee e ground No.

11 essee, therefore, dingly, same are e has raised the he Act.

Since, we licable over the hence dismissed AY 2001-02 40.

Now we take up 2001-02.

The ground 02/06/2008 are repr The appellan March 2007 p III, Mumbai [ 1961 ('the Act Decommissio 1.

The learne an amoun collected b 2.

The learn appellant to Decomm Renovation & 3.

The learne an amou Modernisa 4.

The learne an amoun Renovation 5.

Without pr erred in ho Modernisa accordingl Research & 6.

The learne an amoun levy collec 7.

The learn appellant to Researc M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O p the appeal of the assessee for a ds raised by the assessee in for roduced as under: nt company objects to the appellate ord passed by the Commissioner of Income- [ CIT (A)'| under section 250 of the Inc t) on the following grounds: oning Levy ed CIT(A) erred in confirming as income of nt of Rs.

2,955.

19 lacs, being Decommi by the appellant. ned CIT (A) erred in confirming as in an amount of Rs.3,292.31 lacs, being int missioning Fund. ning Fund. & Modernisation Levy ed CIT(A) erred in confirming as income of unt of Rs.

7,387.98 lacs, being R ation levy collected by the appellant. ed CIT(A) erred in confirming as income of nt of Rs.2,269.66 lacs, being interes n and Modernisation fund. rejudice to Grounds 3 and 4 above, the l olding that the amount collected towards ation levy was not in the nature of a capit ly taxable.

Development Levy ed CIT(A) erred in confirming as income of nt of Rs.

4,432.79 lacs, being Research & cted by the appellant. ned CIT (A) erred in confirming as in an amount of Rs.

1,336.46 lacs, being int ch and Development fund.

100 4413/M/2004, 43 to 4745/M/2007, Ors assessment year rm No.

36 dated rder dated 30 -lax (Appeals)- come Tax Act, f the appellant issioning Levy ncome of the terest credited f the appellant Renovation & f the appellant st credited to learned CIT(A) Renovation & tal receipt and f the appellant & Development ncome of the terest credited 8.

Without pr erred in h Research receipt and Income arisi 9.

The learn Assessing which had expenditu Sr.

5.

10.

Withou erred in no in respect Prior Period 11.

The Learn period exp 12.

Without p Officer ma expenditu prior perio 13.

Without p CIT(A)/Ass the prior p Extra ordina 14.

The learne ordinary it Provision ma M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O rejudice to Grounds 6 and 7 above, the l holding that a portion of the amount colle & Development levy was not in the natu d accordingly taxable. ing from /during Construction Period ned CIT(A) erred in confirming the a g Officer in taxing as income, the follow d been reduced by the appellant comp re incurred during construction period: Particulars Amoun Lacs) Interest on Staff loan 47.06 Interest on others 591.59 Consultancy receipts 97.48 Infirm Power 1,759.

Other Income 269.69 Total 2,764 ut prejudice to Ground No.

9 above, the l ot directing to allow deduction for expend of the income of Rs. ome of Rs.

2.764.70 lakhs broug Expenses ned CIT(A) erred in confirming the disallow penses to the extent of Rs.

421.04 lakhs rejudice to the above. the learned CIT(A ay be directed to disallow only the ne re after setting off prior period expend od income. rejudice to Ground Nos.

11 & 12 above sessing Officer may be directed to allow period expenses in respective financial yea ary item written off ed CIT(A) erred in confirming the disallow tem written off Rs.

1,038.88 lakhs. ade for Loss and Obsolete Stock Corporation of India Ltd..

101 4413/M/2004, 43 to 4745/M/2007, Ors learned CIT(A) ected towards ure of a capital action of the wing amounts pany from the nt (Rs. in 9 28 9 4.70 learned CIT(A) diture incurred ght to tax. wance of prior A) / Assessing et prior period diture against e. the learned w deduction of ars. wance of extra 15.

The learn respect of 64.08 lakh Taxability u 16.

The le profit by t of the app 1961 Sr.

D b.

I c.

R d.

I M e.

R f.

I D T 17.

17.

The l credited Modernisa amount tr Explanatio 18.

The l amounts c source an company. said amou prepared Schedule could not 115JB 19.

19.

Witho erred in co making ad the appel have appr and Loss A to section M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ned CIT(A) erred in confirming the dis f the provision made for loss and obsolet hs. under section 1153B of the Income Tax arned CIT(A) erred in confirming the incre the following amounts, while computing t pellant under Section 115JB of the Inc Particulars Decommissioning levy Interest credited to Decommissioning Fu Renovation & Modernisation levy Interest credited to Renovation Modernisation Fund Research & Development levy Interest credited to Research Development Fund Total earned CIT(A) erred in confirming that to the Decommissioning fund, R ation fund and Research & Development ransferred to 'reserves as specified in on to Section 115JB learned CIT(A) erred in not confirming credited to the respective funds above nds above a nd do not form part of the turnover of The learned CIT(A) erred in not appreci unts do not form part of the profit and in accordance with the provisions of Par VI to the Companies Act, 1956 and there be included in the book profit computed ut prejudice to Ground 16 above, the l onfirming the action of the Additional Co djustments to the Profit and Loss accoun llant.

The learned Commissioner (Appe reciated that no adiustments can be mad Account, other than those specified in th 115JB(2).

102 4413/M/2004, 43 to 4745/M/2007, Ors sallowance in te stock of Rs. ax Act ease of the net the book profit come Tax Act, Amount (Rs.

In Lacs) 2,955.19 nd 3,292.31 7,387.98 & 2,269.66 4,432.79 & 1,336.46 21,674.39 the amounts Renovation & t fund are the clause (b) of that that the are diverted at the appellant iating that the loss account, rts II and Ill of efore the same under Section learned CIT(A) mmissioner in nt prepared by eals) ought to de to the Profit he Explanation Interest und 20.

The learne Additional lakhs 41.

Further, vide l additional ground, wh 1.

The gr to othe 2.

The le passin having assess Tax la section power 3.

The le passin assess Comm law, i under Tax.

41.1 We have heard jurisdiction in passi assessee.

The identic have been admitted discussion and follow Traders P Ltd (sup following our finding appeal for year under 42.

Now we take up The ground Nos.

1 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O der section 234B ed CIT(A) erred confirming the interest ch l Commissioner under section 234B at letter dated 18/07/2018, the hich are reproduced as under: round of appeal is independent and with er grounds of appeal filed earlier, pending arned Additional Commissioner of Incom ng assessment order under section 1 g legal and valid jurisdiction under the A sment order. ent order.

The Additional Commission acked jurisdiction to pass the assessmen n 143(3) dated 17th February 2004 and t rs of performing the functions of an Asses arned Additional Commissioner of Incom ng assessment order under section 143 sment proceedings were initiated b missioner of Income Tax.

Such order pas in the absence of an order transferrin section 127 to the Additional Commissio rival submission of the parties ing the assessment order cha cal additional grounds raised b in appeal for AY 1998-99, bu wing finding of the Tribunal in pra), same have been dismisse g in AY 1998-99, the additional r consideration are accordingly d p the regular grounds of appeal and 2 of the appeal relate to Corporation of India Ltd..

103 4413/M/2004, 43 to 4745/M/2007, Ors harged by the t Rs.

1078.08 e assessee filed hout prejudice g disposal. me Tax erred in 43(3) without Act to pass the ner of Income nt order under to exercise the sing Officer. me Tax erred in 3(3) where the by the Asst. ssed is bad in ng, jurisdiction oner of Income on the issue of allenged by the by the assessee ut after detailed the case Stock ed.

Accordingly, l grounds of the dismissed. of the assessee. receipt of de- commissioning levy the de-commission being identical to gro 1998-99, therefore, fo for assessment yea mutandis.

43.

The ground N consideration are id 2000-01, accordingly 2000-01, the ground decided mutatis muta 44.

As far as groun deduction for expen 764.70 lakhs, which head “income from o we have already uphe income is liable to be sources”.

We are assessment of the sources’, the assesse such income.

Accord Assessing Officer for decide in accordance the assessee is accord M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O y by the assessee and the intere ing fund respectively.

2 r 1998-99, the issues are d Nos.

3 to 9 of the appeal f dentical to ground raised in a y following our finding in as Nos. in as Nos.

3 to 9 of the year under co andis. d No.

10 of the appeal against n nditure incurred in respect of h has held to be income assess other sources”.

While adjudicatin eld the finding of the lower auth e assessed under head “the inc of opinion that under the income under the head ‘inco ee is eligible for expenses incur dingly, we restore this ground t r verification of the claim of th e with law.

10 dingly allowed for statistical pur Corporation of India Ltd..

104 4413/M/2004, 43 to 4745/M/2007, Ors est credited on sues in dispute assessment year 202/Mum/2004 decided mutatis for year under assessment year ssessment year onsideration are not allowing the income of ₹ 2, sable under the ng round No.

9, horities that said come from other provisions for ome from other rred for earning to the file of the he assessee and of the appeal of rposes.

45.

The ground Nos of prior period expens “1.

Even tho June, every from this da after 3 mon sufficient tim 2.

As it is th account for something le of Income wh 3.

From the expenses re maintenance salaries an provided fo maintenance regularly to period of 3 m for assessee them.

Under m recognised institute of C tax, all exp debited to P& expenses is period othe processing i following th above expen principle.

202, 114, 3867/M/2008, 474 2452/M/2011 & O s.

11 to 13 of the appeal relate nses.

The Assessing Officer disal ses of ₹ 542.02 lakhs observing ugh the accounting of liability is fixed year, return is filed almost after six ate.

The final Balance sheet is signed nths from this date.

The assessee is me to claim its expenses in return of In hree months time i.e.

30th June is suff an outstanding expense, but in e eft out it can be claimed directly in the hich is filed around December every y break up of these expenses filed, th elated to salaries and bonuses, e etc.

It is difficult to believe that nd bonuses could not be calculate or in the book. the book.

Similarly, repai e are on going expenses and ar contractors.

It is difficult to imagine months from the year end was not s e to obtain bills from contractors and mercantile system of accounting, w as proper system of accounting b Chartered Accountants of India and enses related to that year should &L account and claim in respect of on allowable.

Any expenses that pertain er than for which assessment is s to be disallowed.

Though the asse e Mercantile System of Accounting nses were not accounted for as per th Corporation of India Ltd..

105 4413/M/2004, 43 to 4745/M/2007, Ors to disallowance llowed the claim as under: as 30th months d almost s having come. ficient to event of e Return ear. he major repairs, unpaid ed and rs and re paid e that a ufficient account which is by both Income only be nly those ns to the s under essee is yet the he above Hence conten amount of R which pertai 45.1 On further app assessee, wherever th the expenses in the y of the Ld.

CIT(A) is re “9.1 Before reiterated th the assessm letter dated during asses various expe The reasons under consid letter.

Accord expenditure L Alc, the a account of p even 0.3% o organisation very expen Delayed rec Since the ex account of p should have the current y the cut-off da 30th June.

A is accounted the appellan expenses cl lakhs arose these expen income of consideration period expen M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ntions raised by the assessee is rejec Rs.542.02 lakhs claimed during th ins to last year is disallowed.” peal, the Ld.

CIT(A) partly allow he assessee was able to justify c year under consideration.

The eproduced as under: e me, the Ld.

A.R. of the appel he submissions made before the A0 du ment proceedings.

He also filed a cop 10th February 2004 filed before the ssment proceedings giving the detail enses claimed as prior period expen s for claiming these expenses in the y deration have also been given in the ding to the appellant, as against the ainst the of Rs.1,93.709.11 lacs debited in the amount of Rs.

542.02 lacs claimed prior period expenses does not const of the total expenditure.

In such a n, it is not possible to account for each nditure relating to the relevant y eipt of some bills can never be avoid xpenditure claimed by the appellan rior period expenses is quite minuscu e been allowed by the AO as deductio year.

It Prada Bi was firther stated ate for accounting liabilities for the yea Any liability crystallizing after 30th J d for in the succeeding year.

Accordin nt, the liability in respect of prior pe laimed by the appellant at Rs.542 e in the current year and, accordin nses are allowable while compu the appellant for the year un n.

It was further contended that the p nses also include bonus of 82.82 la Corporation of India Ltd..

106 4413/M/2004, 43 to 4745/M/2007, Ors cted and his year wed relief to the crystallisation of relevant finding llant uring py of e 10 ls of nses. year said total P & d on itute a big and year. ded. t on le, it on in that ar is June ng to eriod 2.02 ngly, uting nder prior akhs which is a irrespective expenditure reliance on Cement & C and Nathma cases, it has of the expen which the lia determined a 9.2 I have ca by the appe claim of th 542.02 lakh the ground years.

Altho submissions 100 pages v the AO ha contentions Simply from transaction liability for established crystallized mercantile claimed by i liability had year in wh liability thou earlier yea crystallized allowed as a cannot be d related to a t of Saurashtr CIT 213 ITR "Merel transa liabilit M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O allowable w/s 43B on payment b of the financial year to which pertains.

The appellant also pla the decision in the case of Sauras hemical Industries Ltd.

213 ITR 523 ( al Tolaram 88 IT 234 (Gauhati).

In th s been held that the deduction in res nditure is to be allowed in the yea ability in respect of the expenditure and crystalised. ystalised. arefully considered the submissions m ellant.

The AO has merely rejected he appellant seeking deduction of hs in respect of prior period expenses that these expenses pertained to ca ough the appellant had filed deta s and paper book running into more t vide its letter dated 10th Feb.

2004 as not even summarily discussed made by the appellant in the said le the fact that an expenditure relates to of an earlier year does not make the earlier year unless it can that the liability was determined in that year.

When an assessee foll system of accounting, every liab it has to be examined as to whether s d crystallized and quantified during hich it was claimed as deduction. ugh pertaining to the transaction in r might have been determined in later year.

In that case, it has to a deduction in the relevant later yea disallowed merely on the ground tha transaction of the earlier year.

In the c ra Cement & Chemical Industries Ltd.

523 (Guj), it has been held as under : ly because an expense relates action of an earlier year it does not b ty payable in the earlier year unless i Corporation of India Ltd..

107 4413/M/2004, 43 to 4745/M/2007, Ors basis the aced shtra (Guj) hese spect ar in was made the Rs. s on arlier ailed than 4 but the etter. o the it a be and lows bility such the The n an and o be ar.

It at it case .

Vs. - to a becom a t can be said crysta mainta each c merca of an crysta year s books liabilit depen accept been previo merely on m transa and g compu liabilit income necess not in expens call fo estima expens has co accoun books which adjust accrue 9.2.1 The na by the app consideration M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O that the liability was defermine allized in the year in question on the aining accounts on the mercantile b case where the accounts are mainta antile basis it wowskaswe be found in ny claim, whether such liabilit allized and quantified Felusing the p so as to be required to be adjusted of accounts of th unts of that previous year. ty, though relating to the earlie nds upon making a demand a tance by the assessee and such liabi actually claimed and paid in th us years cannot be disallowed as de y on the basis the accounts are mai ercantile basis and that it relate action of the previous year.

The tru gain of a previous year are require uted for the purpose of determin ty.

The basis of taxing income is ac e as well as actual receipt.

If for w sary material crystallising the expend existence in respect of which such in ses relate, the mercantile system d or the adjustment in the books of acco ate basis.

It is actually known inc ses, right to receive or liability to pay ome to be crystallised, is to be tak nt under mercantile system of main of accounts.

As estimated income or is yet to be crystallised, can o ted as contingency item but not ed income or liability of that year. ature of various prior period expenses pellant as deduction for the year n are as under: Corporation of India Ltd..

108 4413/M/2004, 43 to 4745/M/2007, Ors ed and basis of basis.

In ained on n respect ty was previous d in the If any r year, and its ility has he later eduction intained ed to a ue profit d to be ning tax ccrual of want of diture is ncome or does not ounts on come or y which ken into ntaining liability, only be as an claimed r under Based on t allowability appellant is 9.2.1(a) TAP Neither befo any evidenc expenses h consideration to file eviden has been fil claim of the during the Accordingly, AO is upheld 9.2.1(6) RAP Neither befo any evidenc expenses h consideration M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O the above discussion, the issue reg of various prior period expenses clai discussed hereunder :- PS - Rs.

8.08 lakhs. re the AO nor before me, the appella ce to show that the liability in respe has crystallized during the ye n.

Although the appellant was specifi nce during the hearing of appeal but n led so far. ed so far.

In the absence of any e appellant that these expenses had year under consideration cannot be the disallowance of Rs.

8.08 lakhs m d.

PS - Rs.

130.14 lakhs. re the AO nor before me, the appella ce to show that the liability in respe has crystallized during the ye n.

Although the appellant was specifi Corporation of India Ltd..

109 4413/M/2004, 43 to 4745/M/2007, Ors garding the imed by the ant has filed ect of these ear under ically asked no evidence vidence the crystallized e accepted. made by the ant has filed ect of these ear under ically asked to file eviden has been fil claim of the during the Accordingly, the AO is up 9.2.1(c) MAP (i) Repayme employees - It was subm the clectricity from Novem recovered w 2000 and relevant to A return the employees. paid back to bank payme repayment.

T letter dated during the recovered fro refunded by consideration respect of appellant is account. (ii) Repairs a It has been machinery r in the earlier the same w because of Along with th appellant ha of these expe appellant to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O nce during the hearing of appeal but n led so far.

130.14 lakh held.

25.93 lakhs. ent of electricity charges recovered Rs.6.44 lakhs. mitted that the appellant company had y charges from the employees during mber 1998 to February 2000.

Th was offered to tax as income in the 2000-01.

However, during the pre A.

Y.

2001-02, the appellant company electricity charges thus recovere Accordingly, an amount of Rs.

6.04 o the employees.

The appellant also f ent voucher and other details in res These documents appear at page 78 10.2.2004 filed by the appellant bef assessment proceedings.

Since th om the employees in the earlier year the appellant to the employees in the n, the appellant is entitled to de amount of Rs.

6.44 lakh.

Accord s tled to deduction of Rs.

6. of Rs.

6.44 la and Maintenance expenses - Rs.

17.40 n submitted that the appellant ha epaired from M/s.

Bharat Heavy Elec r years.

The bill for Rs.

17,39,943/- i was received from BHEL during the c which the deduction was claimed in he letter dated 10.2.2004 filed before ad also filed copies of invoices of BHE enses.

I have perused the documents o contend that the liability in respe Corporation of India Ltd..

110 4413/M/2004, 43 to 4745/M/2007, Ors no evidence vidence the crystallized e accepted. hs made by d from the d recovered g the period he amount A.Y.

1999- evious year y decided to ed to the 4 lakh was filed copy of spect of the & 79 of the fore the AO he amount rs has been e year under eduction in dingly, the akh on this 0 lakhs. ad got the ctricals Ltd. n respect of current year n this year. the AO, the EL in respect filed by the ect of these expenses cry received in t the appella whatever ca bills were ra i.e. much bef year comme appellant to previous yea facts and ci that the liab year under 17.40 lakh m (iii) Reconcil earlier years Neither befo explained th evidence to p had crystalli appellant in Accordingly, this count is 9.2.1(d) KAP (I) Trade tax It was subm crane hire ch Ltd. in the A to tax in th Officer, Saha lakhs on the The demand previous ye decided to m Trade Tax submitted th this year.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ystallized in the current year since th the current year.

The copies of the b nt are quite illegible and unclear an be deciphered from the bills, it is se aised in the month of February and M fore the previous year for the current a enced.

No evidence has been fil show that these bills were received ar relevant to A.

2001-02.

In vie ircumstances of the case, it cannot b bility of these expenses had crystall consideration.

Accordingly, the add made by the AO in this regard is uphe ation adjustment entry for material s - Rs.

2.09 lakhs. .09 lakhs. ore the AO nor before me, the app he nature of this entry not to speak o prove that the liability in respect of t ized in this year.

Therefore, the conte n respect of this amount cannot be the addition of Rs.

2.09 lakh made b upheld.

189.69 lakhs. - Rs.

14.02 lakhs. mitted that the appellant company ha harges from M/s.

Oswal Chemical an A.Y.

1994-95 and 1997-98.

The same w e respective assessment years.

The ajahanpur, UP had raised a demand o e crane hire charges received by the d was disputed by the appellant.

How ear relevant to A.Y.

2001-02, the make the payment of Trade Tax.

As th was accrued during the current ye hat the same should be allowed as d Corporation of India Ltd..

111 4413/M/2004, 43 to 4745/M/2007, Ors he bills were bills filed by r.

However, een that the March 2000 assessment led by the d during the ew of these be accepted lized in the dition of Rs. ld. received in pellant has of filing any this amount ention of the e accepted. by the A0 on ad received nd Fertilizer was offered Trade Tax of Rs.

14.02 e appellant. wever, in the e appellant e liability of ear, it was deduction in I have cons payment ma Act.

In resp actual paym 14.01,755/- the appellan w/s 43B in addition of R (ii) Repairs & It was subm paid advanc work.

The am The civil wor the company agencies aft during the re from the C advances to May 19, 2 Corporation filed before submitted th in the A.Y. deduction.

I have cons basis of rep liability in crystallized 2001-02.

S 1.4.2000, th AY.

2001-02 made by the (iii) Bonus - R It was state Factor Awar amounting R was contend on payment M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O sidered the contention of the app ade by the appellant is eovered by sec ect of any tax, deduction is allowab ment.

Since payment of Trade tax am has been made by the appellant on nt is entitled to deduction in respect o n the assessment year 2001-02.

A Rs.

14.02 lakh made by the AO is dele & Maintenance - Rs.

23.37 lakhs. .37 lakhs. mitted by the appellant that the app ces to various state government agenc mount paid was debited to the advan rk was completed in the earlier years y did not receive any bills from the G fter the completion of the work.

Th elevant A.Y.

2001-02, on the basis of Civil Engineer, transferred the am the expense account.

A copy of the 2001 of the Civil Engineer, Nucl was enclosed at pages 102 of the e the AO during asstt. proccoding hat as the status of work completed w 2001-02, the expenses must be sidered the contention of the appella ply of the appellant it cannot be sa respect of the expenses of Rs.

2 during the previous year relevant ince the expenses had crystallize ese expenses cannot be allowed as d 2.

Accordingly, the addition of Rs. e AO in this regard is upheld.

Rs.

82.82 lakhs. ed that the appellant made payment rd Bonus for the period 1998-99 and Rs.

82,82,130/- in the month of Jun ded that the said deduction is allowab basis.

112 4413/M/2004, 43 to 4745/M/2007, Ors pellant.

The c.

43B of IT. ble only on mounting Rs.

14.7.2000, of the same Accordingly, eted. pellant had cies for Civil nce account. s.

However, Government he company certification mount from letter dated lear Power compilation gs.

It was was finalised allowed as ant.

On the aid that the 23.37 lakhs to the A.Y. ed prior to eduction for 23.37 lakh of Capacity 1999-2000 ne 2000.

It ble w/s 43B I have cons appellant ha the F.Y.

19 relevant to A by the appel filed before t deduction in of payment deduction in under consid made by the (iv) Leave Sa According to contribution Department pension fund to the A.Y.

2 for Rs.

3,32, of Rs.

17,68 addressed t Atomic Energ was filed in at page no.

AO.

It was allowed as crystallized 2001-02.

I have consi that the pay and Clause allowable in the addition is deleted.

9.2.1(e) Misc Neither befo any evidenc expenses h consideration M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O sidered the contention of the app as paid the bonus of Rs.

82.82 lakh p 998-99 and 1999-2000 in the pre A.

Evidence in this regar llant at page no.

103 of the paper set the AD.

As per section 43B (6) of the 1 n respect of the bonus is to be allowed t.

Accordingly, the appellant is n respect of the amount of Rs.

82.82 l deration.

Therefore, the addition of Rs e AO is deleted. alary and Pension Contribution - Rs.

1 the appellant, the appellant company of Rs.

17,68,552/- to the Pay & Accou of Atomic Energy on account of leave d of the employees in the previous ye 2001-02.

A copy of the cheque dated ,69,624/- which inter alia includes th 8,552/- and a copy of the letter dated to the Pay & Accounts Officer, Dep gy, Mumbai remitting therewith the s support of the claim.

All these docume 104 and 105 of the paper book filed contended that the said amount req deduction since the liability to pay during the previous year relevant idered the contention of the appellan ment of Rs.

17,68,552/- is covered by e (D of sec.

43B.

Accordingly, th n the A.Y.

2001-02 on payment basis of Rs.

17.69 lakh made by the AO on cellaneous Expenses - Rs.

51.79 lakhs re the AO nor before me, the appella ce to show that the liability in respe has crystallized during the ye n.

113 4413/M/2004, 43 to 4745/M/2007, Ors pellant.

The pertaining to evious year rd was filed out or peak 1.

T.Act, the d in the year eligible for lakh in year s.82.82 lakh 7.69 lakhs. y had made unts Officer, salary and ear relevant d 18.4.2000 he payment d 18.4.2000 partment of said amount ents appear d before the quires to be the amount to the A.Y. t.

It is seen y Clause (b) he same is s.

Therefore, n this count s, ant has filed ect of these ear under ically asked to file eviden has been fil claim of the during the Accordingly, the AO is up 9.2. is up 9.2.1(f) Corp Neither befo any evidenc expenses h consideration to file eviden has been fil awes claim crystallized accepted.

Ac made by the On the basis appellant in worked out a Accordingly, allowed.” 45.2 We have heard dispute and peruse t has given detailed bif assessee.

In case of T M/s Nuclear Power ITA Nos.

51.79 lakh held. porate Office - Rs.

1.51 lakhs. re the AO nor before me, the appella ce to show that the liability in respe has crystallized during the ye n.

Although the appellant was specifi nce during the hearing of appeal but n led so far.

In the absence of any e m of the appellant that these exp during the year under consideration ccordingly, the disallowance of Rs. e AO is upheld. s of the above discussion, the relief all respect of the ground of appeal at S as under: the ground of appeal at S.

1 rival submission of the party the relevant material on record furcations of the such expenses TAPS and RAPS , the assessee f Corporation of India Ltd..

114 4413/M/2004, 43 to 4745/M/2007, Ors no evidence vidence the crystallized e accepted. hs made by ant has filed ect of these ear under ically asked no evidence vidence the penses had n cannot be 1.51 lakhs lowed to the S.

12 is 2 is partly on the issue in .

CIT(A) s claimed by the failed to file any evidence to show tha consideration and disallowance of ₹ 8.0 of the expenses rela repayment of electric upheld the disallowa reconciliation adjustm due to to lack of docu expenses in the yea KAPS, the Ld.

CIT(A bonus, whereas in r salary and pension crystallisation of ex Similarly the Ld.

CIT and corporate office crystallisation of exp opinion, the finding justified and we do n uphold the same.

Fu claimed for setting period Income. od Income.

In ou income are different cannot be allowed t which has been decla M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O at expenses crystallised during therefore the Ld.

CIT(A) ha 08 lakhs and ₹ 130.14 lakhs re ated to MAPS, the learned CIT city charges recovered from the ance of repair and maintenanc ment entry for material received umentary evidence to support c r under consideration.

Similar A) has deleted the addition for respect of repair and mainten contribution, the assessee f xpenses in the year under T(A) has disallowed the miscella expenses due to lack of evide penses in the year under consid of the Ld.

CIT(A) on the issu not find any error in the same, urther, in ground No.

10, th off of prior period expenditur ur opinion, when the items of t than the nature of the exp o be set off against the prior ared by the assessee on accrual Corporation of India Ltd..

115 4413/M/2004, 43 to 4745/M/2007, Ors the year under as upheld the espectively.

Out T(A), deleted the employees, but ce expenses and d in earlier years crystallisation of rly in respect of r trade tax and nance and leave failed to justify consideration. aneous expenses ence supporting deration.

In our ue in dispute is , accordingly we he assessee has re against prior the prior period penditure, same period income, basis.

As far as claim of the assessee respective financial y the assessee to avail the Act for claim of su years.

The ground N dismissed.

46.

The ground No extraordinary items w Ld.

CIT(A) has referr after considering disallowance of the o “10.

The grou in disallowin appellant und assessment o delamination the AO that t of Dome cons was not of re 1038.88 lacs addition of Rs 10.1 Before m was incurred had collapsed said expendit 10.2 I have co the expenditu before me is a before the A incurred on further explan appellant.

In M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O e for allowing the said prior per years, we are of the opinion tha remedy provided under statuto uch expenses in relevant financ Nos.

11 to 13 of the appeal o.14 of the appeal relates to written off amounting to ₹ 1,03 red to the finding of the Assess submission of the assesse bserving as under: und of appeal at Sr.No.13 is against the a ng expenses of Rs.

1038.88 lakhs d der the head "extra ordinary item written order, the appellant had incured this exp of the IC dome.

It was explained by the a this amount represented the expenditure structed in a nuclear power plant.

Since t ecurring nature, the AO treated the exp s in the nature of capital expenditure t s.

1038.88 lacs to the income of the appel me, it was submitted that the amount of R on the construction of the dome of a pow d during construction period.

It was sub ture is allowable as revenue expenditure. onsidered the contention of the appellant ure of Rs.

1038.88 lacs as explained by at variance with the nature of the said exp AO.

Further, except stating that the ex the construction of a dome which had nation or corroborative evidence has be the statement of facts also, not even a s Corporation of India Ltd..

116 4413/M/2004, 43 to 4745/M/2007, Ors riod Expenses in at it is open for ory provisions of cial /assessment are accordingly disallowance of 8.88 lakhs.

The sing Officer and e upheld the action of the AO debited by the n off.

As per the penditure on the appellant before on inner lining this expenditure penditure of Rs. thereby making llant.

1038.88 lacs wer plant which bmitted that the t.

The nature of y the appellant xpenditure given xpenditure was d collapsed, no een filed by the single word has been written said expendit the IT.Act, on repairs to the incurred on th the nature o 1038.88 lacs cannot be allo this regard is Therefore, the 46.1 We have heard dispute and perused Ld. erused Ld.

CIT(A) has obs evidence in respect o the lower authorities amount incurred on be allowed as revenu has been claimed by In our opinion, the fi is well reasoned, and 14 of the appeal of th 47.

The ground N provision for loss / disallowance observin “11.2 I have made the di appellant had by the appell have been file M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O about the nature of this expenditure or ture was revenue expenditure.

As per sec nly an amount incurred on www. acco e premises can be allowed as a deductio he construction of a dome cannot be cons of current repairs.

Therefore, the expe incurred by the appellant on the constr owed as deduction.

Accordingly, the acti upheld. e ground of appeal at Sr.

13 is rejected rival submission of the parties d the relevant material on recor served that no explanation o of the claim of the expenditure s.

CIT(A) has also obs account of current repairs to th ue expenditure whereas the am the assessee for construction of inding of the Ld.

CIT(A) on the i d therefore we uphold the same. he assessee is accordingly dismis o.

15 of appeal relates to d /obsolete stock.

CIT ng as under: considered the contention of the appella isallowance mainly because of the re d not filed the item wise details of obsolet lant at Rs.

64.08 lacs.

Even before me, n ed.

No evidence has been filed before m Corporation of India Ltd..

117 4413/M/2004, 43 to 4745/M/2007, Ors r as to why the ction 30(a) (ii) of ount of current on.

The amount sidered to be in enditure of Rs. ruction of dome ion of the AO in d.” on the issue in rd.

We find that or documentary was filed before served that any he premises can mount incurred f a capital asset. issue in dispute The ground No. ssed. disallowance of T(A) upheld the nt. ld the nt.

The AO has eason that the te stock claimed no such details me to show that these items of appellant wo succeeding y show that an succeeding ye made by the lacs appears the case of th made by the 15th March 2 case, the cl Accordingly, t Therefore, the 47.1 We have heard r relevant material on obsolete stock was fil of those items had be years.

In absence of a before the lower auth the Ld.

The ground accordingly dismissed 48.

As far ground N have already held th not applicable in t consequent adjustme the Act made by the A also cannot be sustai the assessee are acco M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O of stock had really become useless.

Had uld have disposed off these items at lo years.

No evidence has been filed by th y of these items has been disposed of be ears.

In absence of any documentary evid appellant in respect of the obsolete stoc to be adhoc and arbitrary.

It is pertinent he appellant for the A.Y.

2000-01, simila AO has been upheld by the CIT(A) vide h 2004.

In view of these facts and circum laim made by the appellant cannot the addition of Rs.64.08 lacs made by the e ground of appeal at Sr.

14 is rejected rival submission of the parties a record.

We note that neither it led nor any evidence was filed to een disposed off being below cos any documentary evidence filed horities, we do not find any erro e issue in dispute and accordin No.

15 of the appeal of th d.

Nos.

16 to 19 of the appeal are hat provisions of section 115 JB he case of the assessee and ent to book profit invoking sec Assessing Officer and upheld by ined.

The ground Nos.

16 to 19 ordingly allowed.

118 4413/M/2004, 43 to 4745/M/2007, Ors it been so, the ower de in the he appellant to elow cost in the dence, the claim ck at Rs.

64.08 t to note that, in ar disallowance his order dated mstances of the be accepted. e AO is upheld. d. upheld. d.” and perused the temised detail of o show that any st in succeeding by the assessee r in the order of ngly uphold the he assessee is e concerned, we B of the Act are d therefore the ction 115 JB of y the Ld.

CIT(A), of the appeal of 49.

The ground No ground Nos.

21 and as infructuous.

AY 2002-03 50.

Now we take up 2002-03.

The relevan 36 filed on 20/08/20 The appellant 2007 passed Mumbai [ CIT ('the Act) on th Decommissio 1.

The learne an amoun Decommis Renovation & 3.

Without pr erred in h Modernisa accordingl Research & M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O o.

20 of the appeal being con 22 being general in nature sam p the appeal of the assessee for a nt grounds raised by the asses 007 are reproduced as under: t company objects to the appellate order d d by the Commissioner of Income-tax T (A) '] under section 250 of the Income he following grounds: oning Levy ed CIT(A) erred in confirming as income o nt of Rs.

3,449.33 lacs, being Decomm by the appellant. ed CIT (A) erred in confirming as income o nt of Rs.3,652.06 lacs, being intere sioning Fund. & Modernisation Levy ed CIT(A) erred in confirming as income o unt of Rs.

8,623.31 lacs, being ation levy collected by the appellant. ed CIT(A) erred in confirming as income o nt of Rs.2,999.27 lacs, being intere n and Modernisation fund. rejudice to Grounds 3 and 4 above, the olding that the amount collected towards ation levy was not in the nature of a cap ly taxable.

Development Levy Corporation of India Ltd..

119 4413/M/2004, 43 to 4745/M/2007, Ors nsequential, and me are dismissed assessment year ssee in form No. dated 30 March (Appeals)- III, Tax Act, 1961 of the appellant missioning Levy of the appellant est credited to of the appellant Renovation & of the appellant est credited to learned CIT(A) s Renovation & pital receipt and 6.

The learne an amoun levy collec 7. collec 7.

The learne an amoun Research a 8.

Without pr erred in h Research receipt and Deduction un 9.

The learne of interest Rs.

23.93 deduction 10.

Withou confirming "Profits of of the Inco The learne against the Income arisi 11.

The l Assessing which had expenditur Sr.

Withou erred in n in respect 13.

Withou CIT(A) erre the deprec the exclus constructio Prior Period M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ed CIT(A) erred in confirming as income o nt of Rs.5,173.99 lacs, being Research & ted by the appellant. ed CIT (A) erred in confirming as income o nt of Rs.

1,752.77 lacs, being intere and Development fund. rejudice to Grounds 6 and 7 above, the holding that a portion of the amount col & Development levy was not in the natu d accordingly taxable. nder Section 801A ed CIT(A) erred in confirming the exclusion income of Rs.

48.34 lakhs and miscellan 3 lakhs from the "Profit of the busine under Section 80 lA of the Income Tax Ac ut prejudice to Ground No.

9, the learned g the exclusion of the gross interest in the business" eligible for deduction unde ome Tax Act, 1961 instead of the net i ed CIT(A) erred in not netting off the i e interest expenditure. ing from /during Construction Period learned CIT(A) erred in confirming the Officer in taxing as income, the follo d been reduced by the appellant comp re incurred during construction period: Particulars Amount (Rs.

I Interest on Loan 266.76 Other Income 69.26 Total 336.02 ut prejudice to Ground No.

11 above, the ot directing to allow deduction for expen of the income of Rs.

336.02 lakhs brough ut prejudice to Ground 11 and 12 abov ed in not directing the Assessing officer ciation allowable to the appellant compa sion of the income reduced from expe on.

Expenses Corporation of India Ltd.. ndia Ltd..

120 4413/M/2004, 43 to 4745/M/2007, Ors of the appellant & Development of the appellant est credited to learned CIT(A) llected towards ure of a capital n of the amount neous income of ss" eligible for ct, 1961. d CIT(A) erred in ncome from the er Section 80 IA nterest income. interest income e action of the owing amounts mpany from the In lacs) e learned CIT(A) nditure incurred ht to tax. ve, the learned r to re-compute any pursuant to enditure during 14.

The le prior perio 15.

Withou Officer ma expenditur period inco 16.

Withou CIT(A)/Ass prior perio Expenditure 17.

The le expenditur Provision ma 18.

The le respect of lakhs.

Taxability u 19.

The le profit by th the appella Sr.

Pa De In Fu Re In Mo Re In De To 51.

The assessee ha which are reproduced 1.

The groun to other g M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O earned CIT(A) erred in confirming the d d expenses to the extent of Rs.

1,188.41 ut prejudice to the above, the learned CIT ay be directed to disallow only the n re after setting off prior period expenditu ome. ut prejudice to Ground Nos.

14 & 15 abo sessing Officer may be directed to allow d d expenses in respective financial years. e on Research & Development earned CIT(A) erred in confirming the d re on Research & Development levy of Rs ade for Loss and Obsolete Stock earned CIT(A) erred in confirming the d provision made for loss and obsolete sto under section 115JB of the Income Tax arned CIT(A) erred in confirming the incr he following amounts, while computing th ant under Section 115JB of the Income Ta articulars A ecommissioning levy terest credited to Decommissioning und enovation & Modernisation levy terest credited to Renovation & odernisation Fund esearch & Development levy terest credited to Research & evelopment Fund otal as also filed additional ground o d as under: nd of appeal is independent and with rounds of appeal filed earlier, pending Corporation of India Ltd.. ndia Ltd..

121 4413/M/2004, 43 to 4745/M/2007, Ors disallowance of lakhs T(A) / Assessing net prior period re against prior ove, the learned deduction of the disallowance of .

82.50 lakhs. disallowance in ock of Rs.

64.08 x Act rease of the net he book profit of ax Act, 1961. mount (Rs. in lacs) 3,449.33 3,652.06 8,623.31 2,999.27 5,173.99 1,752.77 25,650.73 on 18/07/2018, hout prejudice g disposal.

The learn passing having leg assessme Tax lacke section 1 the powe Officer.

The learn passing a assessme Commissi law, in t under sec Tax.

51.1 We have heard jurisdiction in passi assessee.

The identic have been admitted discussion and follow Traders P Ltd (sup following our finding appeal for year under 52.

Now we take of No.

1 to 8 of the identical to ground N therefore following o ground No.

1 to 8 of t M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ned Additional Commissioner of Incom assessment order under section 1 gal and valid jurisdiction under the A ent order.

The Additional Commissio ed jurisdiction to pass the assessmen 43(3) dated 28th December 2004 an ers of performing the functions of ned Additional Commissioner of Incom assessment order under section 143 ent proceedings were initiated b ioner of Income Tax.

Such order pas the absence of an order transferrin ction 127 to the Additional Commissio rival submission of the parties ing the assessment order cha cal additional grounds raised b in appeal for AY 1998-99, bu wing finding of the Tribunal in pra), same have been dismisse g in AY 1998-99, the additional r consideration are accordingly d the regular grounds of the app appeal for the year under co No.

1 to 8 raised in assessmen our finding in assessment yea the appeal are decided mutasis Corporation of India Ltd..

122 4413/M/2004, 43 to 4745/M/2007, Ors me Tax erred in 43(3) without Act to pass the ner of Income nt order under nd to exercise an Assessing me Tax erred in 3(3) where the by the Asst. the Asst. ssed is bad in ng, jurisdiction oner of Income on the issue of allenged by the by the assessee ut after detailed the case Stock ed.

Accordingly, l grounds of the dismissed. peal.

The ground onsideration are nt year 2001-02, ar 2001-02, the mutandis.

53.

The ground No deduction under sec income of ₹ 48.34 lak 53.1 The facts in b assessee in the comp under section 80 IA atomic Power Statio interest income of ₹ 4 claimed that interest working at KAPS, an income earned from operation of KAPS business income and relied on the decision 60( Mad) and other d under section 80IA 52.22 lakhs.

Howeve assessee observing as 6.3.1 T various examin has cla the staf income nexus b is incid deducti of Mad M/s Nuclear Power ITA Nos.

9 (nine) of the appeal relat ction 80IA of the Act in respect khs and miscellaneous income o brief qua the issue in disput putation of the total income cla A in respect of profit derived on (KAPS).

The profit of the 48.34 lakhs.

Before the Ld.

CIT( t income was earned on loans g nd the staff being integral part such a staff had a nexus wit and accordingly chargeable u d forms part of the profit of KAP n of CIT Vs The Madras Motor decisions.

The assessee also cla of the Act on the miscellaneo er the Ld.

CIT(A) rejected the co s under: The eligibility of deduction us 80-IA in resp s items of income shown by the appell ned in view of the above discussion.

The app aimed deduction u/s 80 IA on interest receive aff loans.

There is no direct nexus of the in with the appellant's industrial undertaking between the income and the industrial under dental.

Therefore, the appellant is not entit ion u/s 80 IA on the said income.

Even in th ras Motors Ltd. (supra) relied upon the app Corporation of India Ltd..

123 4413/M/2004, 43 to 4745/M/2007, Ors tes to denial of t of the interest of ₹ 23.93 lakhs. .93 lakhs. te are that the aimed deduction from Kakrapar KAPS included (A), the assessee given to the staff of the unit, any th the business under the head PS.

The assessee rs Ltd 257 ITR aimed deduction ous income of ₹ ontention of the pect of ant is pellant ed from nterest g.

The rtaking tled to he case pellant, the Cou 80-IA) o were k letter of income only in only in from th busines relied u the dec Pandian 6.3.2 6 52.22 la Sale of scrap Sale of tend Charges - C Refund of LD Reimbursem Security dep Rental from Rental - Con Charges - d Others As rega direct n eligible the cas Nirma I the app respect Rs.1,58 at Rs. appella profits f of these increas appella direct n those r and inc for dedu M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O urt did not allow deduction u/s 80 HH (sim on the interest received on bank deposits kept with the bank in connection with open of credit since the connection of the said in with the industrial undertaking was held ncidental.

The Court allowed deduction u/s respect of interest received on belated pay he customers which were directly relatable ss of the industrial undertaking.

The other dec upon by the appellant have been rendered p cision of Hon'ble Supreme Court in the ca n Chemicals Ltd.

6.3.2 As regards the miscellaneous income acs the said income consists of the following i ap Rs.

18,20,024/- der forms Rs.

3,25,450/- Contractors Rs.

1,58,159/- LD charges Rs.

36,750/- ment of DAE Sports meet Rs.

8,51,462/- posit Rs.

1,47,965/- m staff Rs.

13,59,399/- ntractors Rs.

2,95,849/- emonstration Rs.

1,46,890/- Rs.

1,80,380/- Rs.52,22,328/- ards the sale of scrap is concerned, the sam nexus with the industrial undertaking.

The sa for deduction u/s 80IA in view of the decis se of Fenner (India) Ltd.

CIT 241 ITR 80 Inds Ltd.

ACIT 95 ITD 199 (Ahd) (SB).

Ahd) (SB).

F pellant is also entitled to deduction us 8 of the Charges recovered from the Contrac 8,159/- and the reimbursement of DAE Sport 8,51,462/- because the expenses incurred ant on these items earlier had gone to redu for the purpose of deduction u/s 80IA.

On re e charges, the eligible profits for section 80A e to this extent.

The other receipts shown ant under the head miscellaneous income ha nexus with the industrial undertaking.

The ne receipts with the industrial undertaking is in cidental.

Accordingly, those receipts are not e uction u/s 80IA.” Corporation of India Ltd..

124 4413/M/2004, 43 to 4745/M/2007, Ors milar to which ning of nterest d to be 80 IA yments to the cisions prior to ase of of Rs. items. - - me has ame is sion in 03 and Further, 0IA in tors at ts meet by the uce the ecovery would by the ave no exus of ndirect eligible 53.2 Before us the paperbook page 178 lower authorities and from the undertaking the Act.

Regarding m the assessee submit section 80IA of the ac 53.4 We have heard dispute and perused dispute is regarding from giving loans to under section 80IA providing loans or ad unit, is not part of th be a welfare activity on such loans and ad from the operation of Ld.

CIT(A) on the iss find any error in the Ld.

CIT(A) on the issu 53.5 Regarding the income, no details ha lower authorities, th M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O learned counsel for the asses and relied on the submission m d submitted that interest incom g, is eligible for deduction under miscellaneous income also lear tted that same is eligible for d ct. rival submission of the parties d the relevant material on recor claim of deduction on interest o staff working at undertaking of the Act.

In our opinion, dvances to the employees workin he business activity of the under on the part of the assessee but dvances to a staff cannot be any f the power plant. wer plant.

In our opinio sue in dispute is well reasoned same, accordingly we uphold th ue in dispute. deduction in respect of the ave been submitted by the asse herefore Ld.

CIT(A) is justified Corporation of India Ltd..

125 4413/M/2004, 43 to 4745/M/2007, Ors ssee referred to made before the me being derived r section 80IA of ned counsel for deduction under on the issue in rd.

The issue in t income earned g namely KAPS, the activity of ng at the eligible rtaking.

It might t interest earned y income derived on finding of the d and we do not he finding of the e miscellaneous essee before the in rejecting the claim of deduction u income.

The ground accordingly dismissed 54.

1 interest income from section 80IA of the A the lower authorities 54.1 We have heard dispute and perused income earned from excluded by the low under section 80IA claiming that interes interest income earn the interest expendit borrowings were ma advances to the staf gross interest incom interest expenditure netting off cannot be the assessee is accord M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O under section 80IA in respect o d No. nine of the appeal of t d.

10, the assessee has prayed for m the profit of the business for Act instead of gross interest inco . rival submission of the parties d the relevant material on reco m loans and advances to the wer authorities for the purpos of the Act.

In this ground, st expenditure should be adjus ned.

The assessee has not give ure incurred in respect of the b ade for the purpose of extend ff, then same could be netted me, but in absence of any suc with the interest income ea e allowed.

10 o dingly dismissed.

126 4413/M/2004, 43 to 4745/M/2007, Ors of miscellaneous the assessee is exclusion of net the purpose of ome excluded by on the issue in rd.

The interest staff has been se of deduction the assessee is sted against the n the details of borrowing. borrowing.

If the ding loans and off against the ch nexus of the arned, claim of of the appeal of 55.

The ground No. income from interes assessable under the set off claimed by th during construction p us while adjudicating assessment year 19 assessment year 199 mutandis.

56.

The ground No. for expenditure incur which has been as sources.

The identi adjudicating ground 02 , and issue has be Officer for verificatio However in the insta CIT(A) and therefor assessee.

The releva under : “10.

The grou prejudice to g expenditure i be deducted f brought to tax M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O .

11 of the appeal is in respect st on the staff loan and ot e head ‘income from other sourc he assessee against the expen period.

The identical issue has b g ground no.

7 of the appeal of 998-99.

8 is adju 12 of the appeal relates to cla rred in respect of income of Rs ssessed under the head inco ical issue has been decided No.

10 of the appeal for assessm een restored to the file of the lea n and to be decided in accord ant case no such details are file e the Ld.

CIT(A) rejected the ant finding of the Ld.

CIT(A) is und of appeal at Sr.

13 has been ground no.

11 this ground it has been con ncurred in respect of the income of 336. from the said amount and only the net inc x.

However, neither in the ground of ap Corporation of India Ltd..

127 4413/M/2004, 43 to 4745/M/2007, Ors t of treating the ther income as ces’, rather than nditure incurred been decided by the assessee for our finding in udicated mutatis aim of deduction s.

336.02 lakhs, me from other by us, while ment year 2001- arned Assessing dance with law . d before the Ld. e claim of the s reproduced as taken without ntended that the .02 lacs should come should be ppeal nor in the statement of appellant spe the income documentary incurred for e the appellant Accordingly, t 56. gly, t 56.1 We find that L appeal and stateme opportunity to furnis justice and to provid for deduction of exp income from other s Officer for verificatio ground of the appe purposes.

57.

The ground Nos of prior period expen rival submission of th the relevant materi verification of the pri lakhs out of the disa Ld.

CIT(A) has analy Expenses and consid were crystallised in t the assessee failed to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O facts or during the course of hearing ecified the expenses which have been in of Rs.

336.02 lacs.

In absence of a evidence to prove that any expendi earning the income of Rs.336.02 lacs, the cannot be accepted. the 13th ground is rejected.” Ld.

CIT(A) has only referred to ent of the facts but did no sh such details.

Therefore in th de one more opportunity to the penditure against the income u sources is restored to the file o on and deciding in accordance eal of the assessee is allowed s.

14 to 16 of the appeal relate nses to the extent of ₹ 1181.41 l he parties on the issue in dispu ial on record.

CIT(A ior period Expenses, given the allowance made by the Assess ysed all the expenses under t der the expenses on the basis wh the year under consideration o o file any evidence in support o Corporation of India Ltd..

128 4413/M/2004, 43 to 4745/M/2007, Ors of appeal, the ncurred to earn any details or ture has been claim made by o the ground of ot provide any e interest of the assessee, claim under the head of the Assessing e with law.

The d for statistical to disallowance lakhs.

We heard ute and perused A) after proper relief of ₹ 33.98 ing Officer.

The the prior period hether the same r not.

Wherever of crystallisation of the expenses in disallowance.

Before crystallisation of tho has been filed.

There the Ld.

CIT(A) on th the finding of the Ld accordingly dismissed 58. missed 58.

The ground No Expenditure against relates to prayer for respective financial y in assessment year following our finding also dismissed.

59.

82.50 lakhs out of re 59.1Brief facts qua claimed contribution machine test facility assessee claimed tha and development lev the Assessing Officer M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O the year under consideration, e us no documentary eviden ose expenses in the year unde efore, we do not find any error e issue in dispute and accordi d.

CIT(A).

14 o d. o.

15 relates to setting off th the prior period Income.

The allowing deduction of prior per years.

Identical ground Nos.

12 2001-02 have been rejected b g, the ground Nos.

15 and 16 of 17 relates to disallowance of e search and development levy fu the issue in dispute are tha of ₹ 82.5 lakhs towards settin at Bhaba Atomic Research Cen at since payment has been made vy fund, and such levies have b r as revenue receipts , therefore Corporation of India Ltd..

129 4413/M/2004, 43 to 4745/M/2007, Ors he upheld the nce supporting er consideration r in the order of ingly we uphold of the appeal is he prior period ground No.

16 riod expenses in 2 and 13 raised by us, therefore f the appeal are expenditure of ₹ und. at the assessee ng up of fuelling ntre (BARC).

The e out of research been treated by the expenditure incurred out of suc expenditure.

The Ld as being in the nat finding of the Ld.

CIT “17.2 I have the appellant setting up o Research Cen amount of Rs project which expenditure is appellant has that the said the I.T.Act.

Ac of Rs.

82.50 upheld.

Therefore, the 59.2 We have heard dispute in the light o expenditure was incu BARC, has not bee expenditure is in th allowable as revenu Accordingly, we do n on the issue in dispu of the appeal of the a 60.

The ground No. loss and obsolete sto M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O h R &D fund should be allow d. e allow d.

CIT(A) has rejected the claim ture of the capital expenditur T(A) is reproduced as under: considered the contention of the appellan t has made contribution of Rs.

82.50 la of Fueling Machine Test facility to B ntre.

The total cost of the project is 15 s.

82.50 lacs has been provided in res h has to be treated as capital exp s not allowable as deduction u/s 37 of s not made any argument or filed any ev expenditure is allowable under any othe ccordingly, the appellant is not entitled to lacs.

Therefore, the action of the AO in e ground of appeal at Sr.

21 is rejected rival submission of the parties f the material available on recor urred for capital asset, which w en disputed by the assessee. he nature of the capital expen ue expenditure under section not find any error in the order o ute and we uphold the same.

The assessee is accordingly dismissed 18 of the appeal relates to pro ock amounting to be 64.08 lakh Corporation of India Ltd..

130 4413/M/2004, 43 to 4745/M/2007, Ors wed as revenue m of expenditure re.

The relevant nt.

In this case, acs towards the Bhabha Atomic 50.30 lacs.

The spect of capital enditure.

Such the I.T.Act.

The vidence to claim er provisions of o the deduction n this regard is d.” on the issue in rd.

The fact that was installed at Evidently said nditure and not 37 of the Act. of the Ld.

CIT(A) e ground No.

17 d. ovision made for hs.

This ground of appeal was not dismissed as infructu 61.

As far ground already held that pro applicable in the cas adjustment to book p by the Assessing Offi be sustained.

The gr accordingly allowed.

62.

The ground Nos are dismissed as infru AY 2003-04 63.

Now we take of 2003-04.

The ground are reproduced as un “The appella 30 March 20 (Appeals)- II Income Tax A Decommiss 1.

The learne appellant Decommiss 2.

The learne appellant credited to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O pressed before us and the uous.

No. uous.

19 of the appeal is conc ovisions of section 115 JB of t e of the assessee and therefore profit invoking section 115 JB o ficer and upheld by the Ld.

CIT round No.

19 of the appeal of s.

20 and 21 are being general in uctuous. the appeal of the assessee for a ds raised vide form No.

36 date nder: ant company objects to the appellate o 007 passed by the Commissioner of II, Mumbai ['CIT (A)'] under section Act, 1961 (the Act) on the following gro ioning Levy ed CIT(A) erred in confirming as inc an amount of Rs.

3,470.39 l sioning Levy collected by the appellan ed CIT (A) erred in confirming as inc an amount of Rs.3,615.08 lacs, be Decommissioning Fund.

131 4413/M/2004, 43 to 4745/M/2007, Ors refore same is erned, we have the act are not the consequent of the Act made T(A), also cannot the assessee is n nature, same assessment year ed 28/06/2007, order dated f Income-tax 250 of the ounds: come of the lacs, being nt. come of the ing interest Renovation 3.

The learne appellant Renovation appellant.

The learne appellant credited to 5.

Without pr CIT(A) erre Renovation capital rece Research & 6.

The learne appellant a Developme 7.

The learne appellant credited to 8.

Without pr CIT(A) erre collected to the nature Deduction u 9.

The learned amount of miscellaneou the "Profit of Section 80 10.

Withou erred in conf from the "Pro Section 80 IA interest inco the interest i M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O n & Modernisation Levy ed CIT(A) erred in confirming as inc an amount of Rs.

8,675.97 l n & Modernisation levy collecte ed CIT(A) erred in confirming as inc an amount of Rs.3,417.72 lacs, be Renovation and Modernisation fund. rejudice to Grounds 3 and 4 above, ed in holding that the amount collect n & Modernisation levy was not in the eipt and accordingly taxable. & Development Levy ed CIT(A) erred in confirming as inc an amount of Rs.5,205.

Rs.5,205.58 lacs, being ent levy collected by the appellant ed CIT (A) erred in confirming as inc an amount of Rs.2036.22 lacs, bei Research and Development fund. rejudice to Grounds 6 and 7 above, ed in holding that a portion of t owards Research & Development levy of a capital receipt and accordingly ta under section 80-IA d CIT(A) erred in confirming the exclu interest income of Rs.

128.65 us income to the extent of Rs.477.45 f the business" eligible for deduction un IA of the Income Tax Act.

1961. ut prejudice to Ground No.

9, the lea firming the exclusion of the gross inte ofits of the business" eligible for dedu A of the Income Tax Act, 1961 instea ome.

The learned CIT(A) erred in not income against the interest expenditur Corporation of India Ltd..

132 4413/M/2004, 43 to 4745/M/2007, Ors come of the lacs, being d by the come of the ing interest the learned ted towards e nature of a come of the Research & come of the ing interest the learned the amount y was not in axable. usion of an lakhs and lakhs from nder arned CIT(A) erest income uction under d of the net t netting off re.

The l Research & units that w of the Incom Research an to the "Profi Section 80 IA Income red constructio 12.

The le assessing of which had b expenditure Sr.

Total 13.

Withou CIT(A) ought incurred in brought to ta 14.

Withou learned CI depreciation the exclusion construction.

Withou appellant in erred in not to the appell reduced from assessment Prior Period M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O learned CIT(A) erred in confirming Development expenditure was relat were eligible for the deduction under se me Tax Act, 1961 and consequently a nd Development expenditure of Rs.

74 fit of the business" eligible for dedu A of the Income Tax Act, 1961.

Act, 1961. duced from expenditure incurre on Period earned CIT(A) erred in confirming the a fficer in taxing as income the followin been reduced by the appellant compa incurred during construction period: Particulars Amo Interest on Staff Loan 910.54 Interest on others 67.75 Other Income 176.12 1154.4 ut prejudice to Ground No.

12 above, t to be directed to allow deduction for respect of the income of Rs.

1,15 ax. ut prejudice to Grounds 12 and 13 IT(A) may be directed to re-co allowable to the appellant company p n of the income reduced from expendi . ut prejudice to the appeals) prefer the earlier assessment years, the lea re-computing the depreciation allowa lant company pursuant to the exclusio m expenditure during construction in years. d expenses Corporation of India Ltd..

133 4413/M/2004, 43 to 4745/M/2007, Ors g that the table to the ection 80-IA apportioning 47.48 lakhs ction under ed during action of the ng amounts any from the ount 41 the learned expenditure 54.41 lakhs above, the mpute the pursuant to iture during rred by the arned CIT(A) ance, as due on of income n the earlier 16.

The disallowance 552.41 lakhs 17.

Withou Assessing O prior period expenditure 18.

Withou learned CIT( deduction of years.

Provision m 19.

The disallowance obsolete stoc Computatio 20.

The le assessing of amounts, w under Sectio Sr.

Dec 2.

Ren Res 3.

Res 4.

Inte Total 21.

The le deduction o claimed by t return of inco "Durin expen power been Renov M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O learned CIT(A) erred in confi e of prior period expenses to the ex s. ut prejudice to the above. the learne Officer may be directed to disallow o d expenditure after setting off p against prior period income. ut prejudice to Ground Nos.

16 & 17 (A)/Assessing Officer may be directe f the prior period expenses in respecti made for Obsolete Stock learned CIT(A) erred in confi e in respect of the provision made fo ck of Rs.

10.34 lakhs. .34 lakhs. on of book profits under section 11 earned CIT(A) erred confirming the a fficer in increasing the net profit by th while computing the book profit of th on 115JB of the Income Tax Act, 1961 Particulars Amou lak commissioning Reserve 3,470.3 novation & Modernization serve 8,675.9 search & Development Reserve 5,205.5 erest on above reserves 9,069.0 26,420 earned CIT(A) erred in denying the of Renovation & Modernisation the appellant vide Note No.

7 of the n ome, which reads as under - ng the previous year the asssessee h diture on renovation and moderniza r station at Kalpakkam.

The expen funded from internal accruals and vation & Modernisation Fund.

The Corporation of India Ltd..

134 4413/M/2004, 43 to 4745/M/2007, Ors irming the xtent of Rs. ed CIT(A) / only the net prior period 7 above, the ed to allow ive financial irming the for loss and 15JB action of the he following he appellant unt in khs 39 97 58 02 0.96 e claim for expenditure notes to the has incurred ation of its nditure has d from the e company believe Renov being incurre expen accoun claime year. expen income filed w Withou held deprec allowe 22.

The le deduction m to the return During has b Fund.

It is s debite been compa expen of the section return this cla 64.

The assessee a 18/07/2018, which i 1.

The lea passin having assess Tax lac M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O es that the expenditure incurred vation and Modernisation could be cl revenue in nature as the expenditur ed for an existing asset.

In the ac diture has not been debited to the Pr nt and accordingly no deduction ed in computing the total income of t The company submits that deducti diture ought to be allowed in computi e of the company.

The return of incom without prejudice to this claim. ut prejudice to the above it is submitt that the expenditure is capital ciation on the amounts incurred o ed". earned CIT(A) erred in denying the made by the assessee vide No. e vide No.

Note 8 n of income, which reads as under - g the previous year an amount of Rs. een incurred from the Research & D submitted that as the expenditure ha ed to the Profit & Loss Account, no de claimed. in the computation of in any submits that the amount of Rs.1 ded is deductible in computing the t company in view of the provisions c ns 35 / 37 of the Income-tax Act, n of income has been filed without p aim" also raised additional ground is reproduced as under: round of appeal is independent and with er grounds of appeal filed earlier, pending arned Additional Commissioner of Income ng assessment order under section 1 g legal and valid jurisdiction under the A sment order.

The Additional Commission cked jurisdiction to pass the assessmen Corporation of India Ltd..

135 4413/M/2004, 43 to 4745/M/2007, Ors d towards lassified as re has been ccounts this rofit & Loss has been the previous ion for this ing the total me has been ted that it is in nature, ught to be e claim for of the notes 14.63 lakhs Development as not been duction has ncome.

The 14.63 lakhs total income contained in 1961.

The prejudice to by letter dated hout prejudice g disposal. e Tax erred in 43(3) without Act to pass the ner of Income nt order under section powers 3.

The lea passin assess Commi law, in under Tax.

64.1 We have heard jurisdiction in passi assessee.

The identic have been admitted discussion and follow Traders P Ltd (sup following our finding appeal for year unde dismissed.

65.

Now we take up 66.

The ground Nos identical to ground N 2002-03, and therefo 10 of the appeal fo mutasis mutandis.

67.

The ground No research and develo eligible for deduction M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O n 143(3) dated 14th February 2005 and t s of performing the functions of an Assess arned Additional Commissioner of Income ng assessment order under section 143 sment proceedings were initiated b issioner of Income Tax. ncome Tax.

Such order pas n the absence of an order transferring section 127 to the Additional Commissio rival submission of the parties ing the assessment order cha cal additional grounds raised b in appeal for AY 1998-99, bu wing finding of the Tribunal in pra), same have been dismisse g in AY 1998-99, the additional er consideration are accordingl p regular grounds for adjudicatio s.

1 to 10 of the year under co Nos.

1 to 10 of the appeal for a ore following our finding, the gr or the year under considerati .

11 of the appeal relates to ap opment expenditure to the un n under section 80IA of the Act Corporation of India Ltd..

136 4413/M/2004, 43 to 4745/M/2007, Ors to exercise the sing Officer. e Tax erred in (3) where the by the Asst. sed is bad in g, jurisdiction oner of Income on the issue of allenged by the by the assessee ut after detailed the case Stock ed.

Accordingly, l grounds of the ly admitted and on. onsideration are assessment year round Nos.

1 to on are decided pportionment of nits which were .

CIT(A) upheld the apportion observing as under: “8.2 I have appellant.

Th electricity thro office looks af the units at C from the resea office.

During deny that no related to the Vs.

Eastern M that deduction independently was further h to all the unit unit.

In the research and is no reason including tho discussion, th lacs out of the Accordingly, t account is con Therefore, the 67.1 We have heard r relevant metal on rec and development exp us the assessee has carried out by the he the electricity produc under section 80IA o the action of the low M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O nment of research and developm carefully considered the submissions e appellant is engaged in the business o ough various units located at different pl after the research and development work Central level. ral level.

Various units of the appellan arch and development work carried out b g the assessment proceedings, the appe o part of the research and developme units eligible for deduction us 80IA.

In th Medikit Ltd (2006) 100 TTJ 383 (Del), it n us 80IA of the IT.Act has to be compute y taking into consideration the profit of ea held that the head office expenditure has ts unless there are valid reasons to exclu instant case, all the units have bene development work carried on by the he for not allocating the R & D expenses ose eligible for deduction us 80IA.

In he action of the AO in apportioning a sum e total R & D expenditure of Rs.

13.75 cr the addition of Rs.

747.48 lacs made by nfirmed. e ground of appeal at Sr.

11 is rejected rival submission of the parties a cord.

CIT(A) has observe penses have been incurred by th s not provided details of specif ead office and whether same wa ction activity of the plant eligib of the Act.

In absence of any su wer authorities in allocating t Corporation of India Ltd..

137 4413/M/2004, 43 to 4745/M/2007, Ors ment expenditure made by the of generation of laces.

The head k relating to all nt are benefited by the corporate ellant could not ent expenditure he case of DCIT has been held ed for each unit ach unit only.

It to be allocated ude a particular efited from the ead office, there to all the units n view of this m of Rs 747.48 rores is upheld. the AO on this d.” and perused the ed that research he office.

Before fic R&D activity as not related to le for deduction uch information, he said R & D expenditure towards deduction under sec error in the order of t R&D expenditure to appeal of the assesse 68.

The ground Nos to rejection of redu incurred during cons assessment year 20 relevant ground No. mutatis mutandis.

69.

The ground Nos expenses of ₹ 552. adjudicated by us in 2002-03.

Following ground No.

16 to 18 o 70.

Ground of 19 obsolete stock.

This g and therefore same is 71. ame is 71.

As far ground already held that pro applicable in the cas adjustment to book p M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O s the profit from the undertak ction 80IA is justified and we d the Ld.

CIT(A) in upholding the the eligible units.

The ground ee is accordingly dismissed. s.

12 to 15 of the appeal of the ucing certain incomes from t struction period.

The identical r 001-02 have been decided by 12 to 15 of the present appeal a s.16 to 18 of the appeal relate 41 lakhs.

The identical grou n the appeal for assessment yea our finding on those assessm of the appeal are decided mutat of the appeal relates to prov ground of the appeal was not pr s dismissed as infructuous.

20 of the appeal is conc ovisions of section 115 JB of t e of the assessee and therefore profit invoking section 115 JB o Corporation of India Ltd..

138 4413/M/2004, 43 to 4745/M/2007, Ors king eligible for do not find any allocation of the d No.

11 of the assessee relates the expenditure rounds raised in y us, therefore are also decided to prior period nds have been ar 2001-02 and ment years, the tis mutandis. vision made for ressed before us erned, we have the act are not the consequent of the Act made by the Assessing Offi be sustained.

72.

The ground No. deduction for renovat 72.1 Brief facts qua claimed that said exp account and accordin total income of the separately .

C “17.1 I have c have also per to speak of Renovation a the said fund before the AO claim of the ap Accordingly, t 72.2 We have heard r relevant material on expenditure filed, the the assessee.

No su Accordingly, we upho dispute and dismiss t 73.

The ground No. for deduction of e M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ficer and upheld by the Ld.

20 of the appeal of . ppeal of .

21 of the appeal relates to de tion and modernisation expendi a the issue in dispute are tha penditure was not debited to the ngly no deduction was claimed w e previous year, but same h CIT(A) rejected the claim observi carefully considered the submissions of th rused the note no.

7 given in the return o giving the details of expenditure incur and Modernisation Fund, even the amou d has not been specified by the appellan O.

In absence of any details or other in appellant cannot be accepted. the ground of appeal at Sr.no.

29 is reject rival submission of the parties a n record.

In absence of any e Ld.

CIT(A)is justified in reject uch details have been filed b old the finding of the Ld.

CIT(A) the ground of the appeal of the 22 of the appeal relates to den expenditure incurred out of Corporation of India Ltd..

139 4413/M/2004, 43 to 4745/M/2007, Ors T(A), also cannot the assessee is enial of claim of iture. at the assessee e profit and loss while computing has been claim ing as under: he appellant.

I of income.

Not rred from the unt spent from t before me or nformation the ted.” and perused the details of the ting the claim of before us also. on the issue in assessee. nial of the claim research and development fund. expenditure had not therefore no deductio income.

CIT(A “18.1 I have the appellant out of the Res by the appella on the levelin Board of the building for R 14,63,152/- construction o expenses are not made any expenditures In view of the the appellant amount spent Accordingly, t 73.1 We have peruse submission of the pa expenditure has been building for resear construction of the development is in th the learned counsel h said expenditure was facts and circumstan finding of the Ld.

CIT M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O It was claimed by the asse been debited to the profit and lo on had been claimed in the com A) rejected the claim observing a considered the contention of the appellan has furnished the de hed the details of R & D expe search and Development Fund.

As per th ant, it has incurred an expenditure of Rs ng of R & D site.

As per the resolution p e appellant company, there is proposa R & D at cost of Rs.

2.63 lacs.

The a has also been incurred in connecti of the building which is capital in nature. not allowable w/s 37 of the I.T.Act.

The y argument or filed any evidence to claim is allowable under any other provisions ese facts and circumstances of the case, t is not entitled to deduction of Rs.

14,6 t out of the Research & Development Fund the ground of appeal at Sr.No.

30 is reject ed the finding of the Ld.

CIT(A) arties.

The assessee has not di n incurred in relation with con rch and development.

The building for the purpose of he nature of the capital expend has not submitted any evidence s in the nature of revenue expe nces of the case, we do not find T(A) on the issue in dispute and Corporation of India Ltd..

140 4413/M/2004, 43 to 4745/M/2007, Ors essee that said oss account and mputation of the as under: nt.

Before me, enses incurred he details filed s.

14,63,152/- passed by the l to construct amount of Rs. ion with the Such types of appellant has m that the said of the I.T.Act. it is held that 63,152/- being d. ted.” and heard rival isputed that the nstruction of the expenses and f research and iture.

Before us e to support that enditure.

In the any error in the d we accordingly uphold the same.

The accordingly dismissed 74.

The ground No nature, same dismiss AY 2004-05 75.

Now we take up 2004-05.

The ground 28/06/2007, reprodu “The appellan March 2007 p III, Mumbai [ 1961 ('the Act Decommissio 1.

The learn appellant Decommis 2.

The learn appellant credited to Renovation & 3.

The learn appellant Modernisa 4.

The learn appellant credited to 5.

Without pr erred in h & Modern and accord M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O e ground No.

22 of the appeal of d. o.

23 and 24 of the appeal b sed as infructuous. fructuous. p the appeal of the assessee for a d raised by the assessee wide for uced as under: nt company objects to the appellate ord passed by the Commissioner of Income-ta [*CIT (A) under section 250 of the Inco t) on the following grounds: oning Levy ned CIT(A) erred in confirming as inc an amount of Rs.

3,052.70 ssioning Levy collected by the appellant. ned CIT(A) erred in confirming as inc an amount of Rs.4103.80 lacs, be o Decommissioning Fund & Modernisation Levy ned CIT(A) erred in confirming as inc an amount of Rs.

5361.98 lacs, being R ation levy collected by the appellant. ned CIT(A) erred in confirming as inc an amount of Rs.3,624.04. lacs, be o Renovation and Modernisation fund. rejudice to Grounds 3 and 4 above, the le holding that the amount collected towards isation levy was not in the nature of a ca dingly taxable.

141 4413/M/2004, 43 to 4745/M/2007, Ors f the assessee is being general in assessment year r No.

36 dated der dated 30 ax (Appeals)- me Tax Act. come of the lacs, being come of the eing interest come of the Renovation & come of the eing interest earned CIT(A) s Renovation apital receipt Research & 6.

The leam appellant Developme 7.

The learn appellant credited to 8.

Without pr erred in h Research capital rec Deduction un 9.

The learn amount of income to business" Income Ta 10.

Without pr confirming income fro under Sec net incom interest in expenditu Income red Construction 11.

In 2.

Pe 3.

Sa 4.

Ot To M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Development Levy med CIT(A) erred in confirming as inc an amount of Rs.3,217.19 lacs, being ent levy collected by the appellant. ned CIT (A) erred in confirming as inc an amount of Rs.

1877.47 lacs, be o Research and Development fund. ment fund. rejudice to Grounds 6 and 7 above, the le olding that a portion of the amount collec & Development levy was not in the ceipt and accordingly taxable nder section 80-IA ned CIT(A) erred in confirming the excl of interest income of Rs.

281.63 lakhs the extent of Rs.658.85 lakhs from the eligible for deduction under Section 8 ax Act, 1961 rejudice to Ground No.

9, the learned CI g the exclusion of the gross interest incom om the "Profits of the business" eligible f ction 80 IA of the Income Tax Act 1961 in me.

The learned CIT(A) erred in not ne ncome and other income against the intere re. duced from expenditure incurre n Period ned CIT(A) erred in confirming the ac officer in taxing as income, the follow d been reduced by the appellant compa re incurred during construction period: Particulars terest on Staff Loan enal Interest recovered from employees ale of Power ther income otal Corporation of India Ltd..

142 4413/M/2004, 43 to 4745/M/2007, Ors come of the Research & come of the eing interest earned CIT(A) cted towards nature of a lusion of an s and other "Profit of the 80 IA of the IT(A) erred in me and other for deduction nstead of the etting off the est and other ed during ction of the wing amounts any from the Amount (Rs.

In Lakhs) 215 46 0.87 44.54 766.01 1,007.74 12.

Without p ought to b in respect 13.

Without p CIT(A) m allowable of the inc The learne the depre subsequen 14.

Withou in the earl re-computi appellant reduced f assessme Disallowanc 15.

The le administra 14A of the 16.

Without p be directe disallowed Prior period 17.

The learne period exp 18.

Without pr Officer ma expenditu prior perio 19.

Without p CIT(A)/Ass the prior p Provision ma 20.

The learne provision m Computation M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O rejudice to Ground No.

11 above, the le e directed to allow deduction for expendi of the income of Rs.

1,007.

1,007.74 lakhs broug prejudice to Grounds 11 and 12 above, may be directed to re-compute the to the appellant company pursuant to t come reduced from expenditure during ed CIT(A) may be accordingly directed to eciation for the assessment year 20 nt assessment year. ut prejudice to the appeals) preferred by t lier assessment years, the learned CIT(A) ing the depreciation allowance, as company pursuant to the exclusion from expenditure during construction in nt years. ce under Section 14A earned CIT(A) erred in confirming the dis ative expenses of Rs.

3,191.03 lakhs u e Act. rejudice to Ground No.

15 above. the le ed to reduce the amount of administrati d under Section 14A of the Act.

Expenses ed CIT(A) erred in confirming the disallow penses of Rs.

1,028.89 lakhs. rejudice to the above, the learned CIT(A) ay be directed to disallow only the net re after setting off prior period expendi od income. rejudice to Ground No.

17 & 18 above, sessing Officer may be directed to allow period expenses in respective financial yea ade for Obsolete Stock ed CIT(A) erred in confirming the disallow made for obsolete stock of Rs.

20.66 lakh n of book profits under section 115JB Corporation of India Ltd..

143 4413/M/2004, 43 to 4745/M/2007, Ors arned CIT(A) ture incurred ght to tax. the learned depreciation the exclusion construction. o re-compute 004-05 and the appellant ) erred in not due to the n of income n the earlier allowance of nder Section arned CIT(A) ive expenses wance of prior / Assessing prior period iture against the learned deduction of ars. wance of the hs.

B 21.

The learn assessing amounts, under Sec Sr.

De 2.

Re 3.

Re 4.

In To Renovation a 22.

The le assessing company expenditu 75.

Before us, the raised additional gro raised in assessment admitted additional considering submiss have been dismissed 2002-03 and 2003-0 under consideration a 76.

Now we take adjudication.

77.

The ground Nos commissioning levy the de-commission M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ned CIT(A) erred in confirming the ac officer in increasing the net profit by t while computing the book profit of th ction 115JB of the Income Tax Act; 1961.

Particulars ecommissioning Reserve enovation & Modernization Reserve esearch & Development Reserve terest on above reserves otal and Modernisation Expenditure earned CIT(A) erred in confirming the a officer in disallowing the claim of th to allow the Renovation and M re incurred in Kalpakkam unit as revenue assessee vide letter dated 18 ound, which are identical to ad t year 2002-03 and 2003-04.

W grounds in those assessment sion of the parties, those add d.

Following our finding in a 04, the additional grounds rais are also dismissed. up the regular ground of s.

1 and 2 of the appeal relate to y by the assessee and the intere ing fund respectively.

The iss Corporation of India Ltd..

144 4413/M/2004, 43 to 4745/M/2007, Ors ction of the the following he appellant Amount (Rs.

In Lakhs) 3,052.70 5,361.98 3,217.19 9,605.31 21,237.18 action of the he appellant Modernisation e expenses.

8/07/2018, has dditional ground We have already years and after ditional grounds assessment year sed in the year the appeal for o receipt of de- est credited on sues in dispute being identical to gro 1998-99, therefore, fo for assessment yea mutandis.

78.

5361.98 lakh levy as capital rece grounds have alread assessment year 199 for assessment year mutatis mutandis.

79.

3297 development levy research and develop being in the nature grounds have been d and 4 of the appeal M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ound Nos.

2 r 1998-99, the issues are d s.

5361.98 lakhs by way n levy and interest of Rs. est of Rs. ovation and modernization fu e assessee has prayed for treati hs by way of renovation and eipt.

1877.47 lak pment fund and research and d of capital receipt respectively decided by us while adjudicating of the assessee for assessmen Corporation of India Ltd..

145 4413/M/2004, 43 to 4745/M/2007, Ors assessment year 202/Mum/2004 decided mutatis ssessee relate to y of renovation 3624.04 lakhs und respectively. ing the receipt modernization raised in above the appeal for nding in appeal ute are decided ssessee relate to f research and khs credited to development levy y.

3 nt year 1998-99 ,therefore, respectfull the appeal of the asse 80.

The ground Nos deduction under sec earned from loans an deduction under sect and 10 , raised in as Following our finding 9 in 10 of the app accordingly.

81.

The ground Nos of reduction of certai construction.

Identic year 2002-03 and assessment year 200 appeal are decided m 82.

The ground N disallowance under s 82.1 The brief facts, tax-free exempted disallowance for earn assessee.

Before the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ly following the same the groun essee are decided mutatis muta s.

9 in 10 of the appeal relate to ction 80IA in respect of the nd advances to staff working at tion 80 of the Act.

The identica ssessment year 2002-03, have b g in assessment year 2002-03, t peal under consideration are s.

11 to 14 of the appeal relate in income(s) from expenditure cal grounds have been raised 2003-04, therefore following 02-03 and 2003-04, ground No. mutatis mutandis.

14 and 15 of the ap section 14A of the Act. the issue in dispute that the income from investments, ning such exempted income wa e Assessing Officer assessee Corporation of India Ltd.. ndia Ltd..

146 4413/M/2004, 43 to 4745/M/2007, Ors nd Nos.

6 to 8 of andis. disallowance of interest income unit eligible for al ground nos.

9 been dismissed. the ground Nos. also dismissed to disallowance incurred during in assessment our finding in 10 to 14 of the ppeal relate to assessee shown however no as shown by the submitted that company has made i the recommendation India.

It was submitt by the different Elec investment.

It was e internal funds i.e. de no disallowance of in section 14A of the contention regarding out that assessee administrative expen Assessing Officer ma expenses, computed “9.4 The exp estimated.

A the administr turnover of th Total turnover Income from T Administrativ Rs.

2,11,959.

Less: expense 1.

Fue 2.

Hea 3.

Aux 4.

Sto 5.

Rep 6.

Reb Tota Allo M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O investment of ₹ 2,63,198 lakhs of the ‘Ahluwalia committee’ of ted that those Bonds were comp ctricity Board for converting e explained that investment in B ebt and not from borrowed fund nterest could be made under th e Act.

The Assessing Officer g the interest disallowance, how has not made any disallow nses incurred for earning exemp de disallowance of proportionate as under: enses on the earning of tax-free income fair basis of the estimate would be app rative expenses on the ratio of tax-free he assessee. r as per P &L account 597177.96 la Tax-free bonds 55,759.58 lakhs ve expenses as per P &L account 79 lakhs es relatable only to industrial activity: Rs.

In la el charges 54,179. avy water charges 35,871. xillary consumption of power 47,095. res and spares 1,766.5 pairs to Plant &machinery 7,104.0 bates and discount 31767. al 1,77,78 ocable expenses 2,11,959.79 - 1,77,784.3 Corporation of India Ltd..

147 4413/M/2004, 43 to 4745/M/2007, Ors in bonds as per f Government of pulsorily allotted existing debt as Bond was from ds and therefore he provisions of r accepted the wever he pointed wance towards ted income. ed income.

The e administrative es have to be portionment of income to the akhs akhs .32 .30 .98 52 01 17 84.30 3 = 3 Exp = 3 = In view of th disallowed in of the Assess 82.2 On further app observing as under: “11.2 I have As per section respect of ex income which Therefore, wh relating to exe Vs.

S.G.

Inve held that, in the assessee income" shoul in a narrow o the said exp proximate exp exempt incom in relation to imply both di and the exem Chemical Ind been held tha which top m management the dividend decision has Consolidated JCIT Vs.

Holla Rhythm Expo Dakshesh S.

Exports Pvt.L assessee to a M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 4,175.49 lakhs penses on tax-free interest: 34,175.49 X 55,759.58 597177.96 = Rs.

31,91,02,695 he above, the provision made by Rs.31 n computing the total income of the asses ing Officer” peal, the Ld.

CIT(A) upheld th carefully considered the submissions of n 14A of the I.T.Act, no deduction shall xpenditure incurred by the assessee h does not form part of the total income hile computing income of assessee, all empt income have to be disallowed.

In the stment & Industries Ltd 89 ITD 14 (Cal. section 14A, the expression "expenditur in relation to income which does not form ld be given a wide meaning and it canno or restricted manner.

If such a wider mea pression would encompass not only penditure incurred for the purpose of mak me but would include all other expenses a exempt income.

In other words, it wo irect and indirect relationship between th mpt income.

Further, in the case of S dustries Vs.

DCIT (2005) 3 SOT 157 (Ch at investment decisions are very strategi management is involved and, therefore, expenses are required to be deducted wh income for the purpose of section 1 s been given in the case of ACIT Capital Trust (1) Ltd. (2004) 4 SOT 79 and Equipment Co.

B.V (2005) 3 SOT 810 rts Pvt.Ltd.

ITO 97 TTJ 493 (Mumbai) Shah 90 ITD 519 (Mumbai).

In the ca Ltd. he ca Ltd. (supra), it has been held that it is th allocate the expenditure to exempt income Corporation of India Ltd..

148 4413/M/2004, 43 to 4745/M/2007, Ors 1,91,02,695 is ssee.

Para 9.4 he disallowance the appellant. be allowed in in relation to under I.T.Act. the expenses e case of DCIT .), it has been re incurred by m part of total t be construed aning is given, the direct or king or earning attributable or uld signify or he expenditure Southern Petro hennai), it has ic decisions in proportionate hile computing 0(33).

Similar Vs.

Premier 93 (Mumbai) ; 0 (Mumbai) ; ) and ACIT Vs. ase of Rhythm he duty of the e w/s 14A but in case the as but to disallo Hon.

Bomba Corporation of appellant are of section 80M In view of th expenditure o upheld. (Addi Therefore, gro 82.3 Before us the paperbook page 190 is concerned, the as boards toward intere no other administra earning the exempted 82.4 We have heard dispute and peruse assessment year 200 short the rules) was Assessing Officer to exempted on a reaso has disallowed the ratio of exempted inc as per the submissio interest income on bo efforts except deposit M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ssessee fails to allocate the same, the AO ow the same on proportionate basis.

Th ay High Court in the case of Gener of India supra) and other decisions relied not applicable since the same was rende M and before the introduction of section his discussion, the action of the AO in of Rs.

31,91,02,695/- /s 14A of ition confirmed Rs.

31,91,02,695/-). ounds of appeal at Sr.no.

15 and 16 are r learned counsel for the asses and submitted that as far as ex ssessee received cheques from est, which were deposited in ba ative cost was incurred by th d income. rival submission of the parties d the relevant material on r 08-09, rule 8D of Income-tax R not in operation and it was d disallow expenses correspondin onable basis. ble basis.

In the case, the A administrative expenses in pr come to the total turnover of th on of the assessee, assessee is re onds invested in state electricity ting the cheques of the interest Corporation of India Ltd..

149 4413/M/2004, 43 to 4745/M/2007, Ors O has no option he decision of ral Insurance d upon by the ered in respect 14A in IT.Act. ==disallowing the I.T.Act is rejected.” ssee referred to xempted income state electricity nk account and he assessee for on the issue in record.

Prior to Rules, 1962 ( in discretion of the ng to earning of Assessing Officer roportion to the he assessee.

But eceiving tax-free y board, and no t were deposited in the bank.

In suc disallowance proport At maximum, some salary, office establi cover expenses corr Accordingly, we set a in dispute and restor for making disallowa directed to provid establishment expen related to earning o after verification of quantum of disallowa and 16 of the app statistical purposes.

83.

The ground Nos of prior period expen assessee in assessm following our finding ground No.

17 to mutandis.

84.

The ground No provision made for M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ch circumstances, we are of th tional to the receipt of interest i e percentage of administrativ ishment expenses etc would b responding to earning of exe aside the finding of the Ld.

CIT re the matter to the file of the A nce on some reasonable basis . de details of expenses in nses related to employees en of exempted income so that As the same may be in position ance on reasonable basis.

The peal of assessee are accordin s.

17 to 19 of the appeal relate nses.

Identical grounds have bee ment year 2002-03 and 200 in assessment year 2002-03 an 19 of the appeal are adjud o.

20 of the appeal relates to obsolete stock of ₹ 20.66 lakh Corporation of India Ltd..

150 4413/M/2004, 43 to 4745/M/2007, Ors he opinion that is too excessive. ve expenses on be sufficient to empted income. ed income.

T(A) on the issue Assessing Officer The assessee is ncluding office ngaged in work ssessing Officer n to decide the ground Nos.

15 gly allowed for to disallowance en raised by the 03-04, therefore nd 2003-04, the dicated mutatis disallowance of hs.

The learned counsel of the assess by the assessee an infructuous.

85.

The ground no. while computing boo we have held that p applicable in the case consequently action o for the purpose of sec foreground of the app 86.

The ground No. the claim of the modernisation expen expenditure.

This exp account and therefor return of income file income the assessee rejected this claim ob “18.1 I have c I have also p Not to speak Renovation an the said fund before the AO claim of the a of appeal at S M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O see submitted that this ground w nd therefore accordingly it is 21 of the appeal, relate to incre k profit under section 115 JB o provisions of section 115JB of e of the being a government com of the Assessing Officer for incre ction 115 JB of the act is not su peal of the assessee are accordin 22(sic) of the appeal relates to assessee for considering r nditure incurred in ‘Kalpakkam’ penditure was not debited to the re no deduction for the same wa ed, however by way of a note t e made this claim.

The Ld. bserving as under: carefully considered the submissions of th perused the note no.

6 given in the retur of giving the details of expenditure incur nd Modernisation Fund, even the amoun d has not been specified by the appellant O.

In absence of any details or other inf appellant cannot be accepted.

Accordingly Sr.no.32 is rejected.” Corporation of India Ltd..

151 4413/M/2004, 43 to 4745/M/2007, Ors was not pressed s dismissed as ease in net profit of the Act.

Since the act are not mpany, therefore easing the profit ustainable in the ngly allowed. y allowed. disallowance of renovation and unit as revenue e profit and loss as claimed in the to the return of CIT(A) however he appellant. rn of income. rred from the nt spent from before me or formation the y, the ground 86.1 We have heard dispute and perused before us also no det innovation and mod whether the same we capital expenditure. error in the order o rejecting the claim o appeal of the assesse 87.

The ground Nos No.

29 and 30) b infructuous.

88.

The groun under: 1. "On th law, th receive its cus R.3247 cannot electric 2. "On th law, t doubtfu A.O wh 3. "The ap ground restore M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O rival submission of the parties the material available on recor tails of expenditure claimed to h dernisation have been filed for ere in the nature of the revenue In such circumstances, we d of the Ld.

CIT(A) on the issue of the assessee.

The ground No ee is accordingly dismissed. s.

23 and 24 (wrongly mentione being general in nature are p the appeal of the Revenue for a nds raised by the Revenue are he facts and in the circumstances of the he Ld CIT(A) erred in allowing deductio ed by assessee company on over due p stomer us 80lA on sale of electricity to 74.94 lakhs without appreciating that th t be said to have derived from the busin city. he facts and in the circumstances of the the Ld CIT(A) erred in deleting the p ful debts to the extent of Rs.74.33 lakhs hile working out book profit u/s 115JB". appellant prays that the order of CIT(A) ds be set aside and that of the Assess ed." Corporation of India Ltd..

152 4413/M/2004, 43 to 4745/M/2007, Ors on the issue in rd.

We find that have incurred or r determination e expenditure or do not find any e in dispute in o.

22( sic) of the ed as to ground dismissed as assessment year e reproduced as e case and in on on interest payments from the extent of he said income ness of sale of e case and in provisions for s made by the on the above ing Off ve ing Officer be 89.

In the ground n Ld.

CIT(A) of allowing interest received by from its customers payment charges wer from the debit balanc of the industrial uni delayed payment cha assessee, but are no undertaking.

The Ld. issue in dispute delet CIT(A) is reproduced As regard the is seen that boards.

In ca appellant cha payments.

In appellant dur Industries Ltd I.T.O.

71 TTJ ITD 187(Del), on interest re consideration directed to al the amount of Further, the respect of th provisions we profit and los the profits for the provision section 80A M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O no.1, the Revenue has challenge g deduction under section 80IA i the assessee company on ove .

The Assessing Officer noted re in the nature of interest and ce lying with the debtors, which it directly.

The Assessing Office arges though attributable to the ot derived from the business .

CIT(A) following the judicial pr ted the addition.

The relevant fi as under: e delayed payment charges amounting R t the appellant supplies power to var ase the payment is not made by the boar arges interest at certain rate from the this way interest of Rs.

32433.04 was re ring the year from the trade debtors.

In th d.

DCIT 283 IT 402(Guj), Mayank E J 612(Ahd), JCIT Vs.

Sidheshwari Paper it has been held that deduction w/s 80 eceved from trade debtors for late pay n.

Respectfully following these decision llow deduction w/s 80IA to the appellan f Rs.

32433.04 lakh. appellant is also entitled to deduction he write back of provision no longer r ere created on account of certain expense ss account.

These expenses had earlier r the purpose of deduction w/s 80IA.

On in respect of these expenses, the elig would increase to this extent.

Accordin Corporation of India Ltd..

153 4413/M/2004, 43 to 4745/M/2007, Ors ed finding of the in respect of the erdue payments d that delayed same emanated h are not a profit er held that the business of the of the assessee recedents on the indin the inding of the Ld.

32433.04, it rious electricity rds in time, the em on delayed ecovered by the e case of Nirma Electro Ltd.

Udyog Ltd.

94 IA is allowable yment of sales ns, the AO is nt in respect of n w/s 80IA in required.

These s debited to the gone to reduce n write back of gible profits for ngly, the AO is directed to all amount of Rs.

The other r miscellaneous undertaking. undertaking i not eligible for 89.1 We have heard dispute and perused Hon’ble Gujarat High ITR 402 ), observed t sale of its products i specified rate which w added to the outstan case of delay the pa carry the sale price second month's delay the contention of rev has described the a contract as per illust profits derived from illustration (b) above would be profits deri never be, because in of realizing sale con proceeds at the earli M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O low deduction u/s 80IA to the appellant i .41.90 lakhs. receipts shown by the appellant un s income have no direct nexus with The nexus of those receipts with is indirect and incidental.

Accordingly, tho r deduction us 80IA.” rival submission of the parties d the relevant material on recor h Court in the case of Nirma ind hat when an assessee enters int it could either stipulate (a) that would be charged on the unpaid nding till the time of realization ayment for sale of products wo of Rs.

102 for first month's de y , Rs.

106 for third month's del venue is accepted merely becau additional sale proceeds as inte tration, (a) above, such paymen m industrial undertaking, bu e, if the payment is described ived from the industrial undert sum and substance these are nsideration, the object being iest and without delay.

Purcha Corporation of India Ltd..

154 4413/M/2004, 43 to 4745/M/2007, Ors in respect of the nder the head the industrial the industrial ose receipts are on the issue in rd. sue in rd.

We find that dustries Ltd(283 to a contract for t interest at the d sale price and n, or (b) that in orth Rs.

100 to lay, Rs.

104 for lay and so on.

If use the assessee erest in case of nt would not be ut in case of as sale price it taking.

This can only two modes to realize sale aser pays higher sale price if it delays is a converse situa principle, in reality, t no distinction as to source for interest according to the Gu delayed payment, it converse situation transaction remains source.

Looking from hire sale price and is divorced there from. and the income is undertaking.

89.2 We find that the Gujarat High Court o DR has not brough jurisdiction High Cou order of the Ld.

CIT finding of the Hon’bl one of the appeal of t 90.

CIT(A) of the prov M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O payment of sale proceeds.

In o ation to offering of cash disc the transaction remains the sam the source.

It is incorrect to is the outstanding sale p ujarat High Court, when inter can be treated as higher sale to offering of cash discoun the same and there is no distin m this angle, the interest becom s clearly derived from the sales m It is, thus, the direct result of t s derived from the Business e Ld.

CIT(A) has followed decisio on the issue in dispute.

Before ht on record any contrary d urt and therefore we do not find T(A) on the issue in dispute i le Gujarat High Court (supra). the Revenue is accordingly dism .

2 (two) of the appeal relate to vision for doubtful debts amoun Corporation of India Ltd..

155 4413/M/2004, 43 to 4745/M/2007, Ors ther words, this ount.

Thus, in me and there is o state that the proceeds.

Thus, rest is paid on e price which is nt because the nction as to the mes part of the made and is not he sale of goods s of industrial on of the Hon’ble us, the learned decision of the any error in the in following the The ground No. missed. deletion by the nting to ₹ 74.33 lakhs while working o The Ld. o The Ld.

CIT(A) delete added by the Assess book profit under s precedents mentione 90.1 Before us lear decision of the Tribu that in earlier ass provisions of section of the assessee and book profit is also Accordingly the grou dismissed.

AY 2005-06 91.

Now, we take u year 2005-06.

The gr dated 28/03/2011 ar The appellan 2008 passed Mumbai [ CIT (“the Act") on Decommissio M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O out book profit under section 1 ed the provision for doubtful th sing Officer to the net profit w section 115JB of the Act rely d in impugned order. rned counsel of the assessee nal in ITA no.

4463/Del/2009. sessment years we have alre 115 JB of the act are not applic d therefore the consequent adj not applicable in the case o und No.2 of the appeal raised by up the appeal of the assessee rounds raised by the assessee v re reproduced as under: t company objects to the order dated 1 d by the Commissioner of Income-Tax T(A)] under section 250 of the Income Ta the following among other grounds: oning Levy Corporation of India Ltd..

156 4413/M/2004, 43 to 4745/M/2007, Ors 15JB of the Act. hat in advances while computing ying on judicial relied on the Further we find eady held that cable in the case ustment to the of the assessee. y the revenue is for assessment vide form No.

36 18 November (Appeals)-III, ax Act, 1961 1.

The learn appellant, Decommis Interest on D 2.

The learn appellant, credited to Interest on R 3.

The learn appellant, credited to Research & 4.

The learn appellant, Developme Interest on R 5.

The lea appellant, credited to Research & receipt 6.

Without p CIT(A) err Renovation capital rec Deduction un 7.

7.

The lea amount o Miscellane "Profit of th of the Act.

8.

Without in confirm miscellane M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ned CIT(A) erred in confirming as inc an amount of Rs.

2,956.

2,956.60 la sioning Levy collected by the appellant co Decommissioning Fund ned CIT(A) erred in confirming as inc an amount of Rs.

3,739.48 lakhs be o the Decommissioning Fund.

Renovation & Modernisation Fund ned CIT(A) erred in confirming as inc an amount of Rs.

3,386.77 lakhs be o the Renovation and Modernisation Fund Development Levy ned CIT(A) erred in confirming as inc an amount of Rs.

49.07 lakhs being ent Levy collected by the appellant compa Research & Development Fund arned CIT(A) erred in confirming as in an amount of Rs.

1,676.53 lakhs be o the Research and Development Fund.

Development Levy - portion represe rejudice to Ground Nos.

4 & 5 above, red in holding that the amount collec n & Modernisation Levy was not in the ceipt and accordingly taxable. nder section 80-IA arned CIT(A) erred in confirming the exc of interest income of Rs.

91.74 eous Income to the extent of Rs.398.21 la he business" eligible for deduction under t prejudice to Ground No.

7, the learned ming the exclusion of the gross interest eous income from the "Profits of the busin Corporation of India Ltd..

157 4413/M/2004, 43 to 4745/M/2007, Ors come of the akhs being ompany. come of the eing interest d. come of the Research & any. ncome of the eing interest ents capital the learned ted towards e nature of a clusion of an lakhs and akhs from the Section 80IA CIT(A) erred income and ness" eligible for deduct income.

Th income an other expe Income red construction 9.

The lea Assessing which had expenditur Sr.

Ot To 10.

Withou erred in n ('Addl.

CIT respect of 11.

Witho learned CI the deprec to the excl constructio 12.

Withou in the earl re-computi appellant c from exp assessmen Prior period 13.

The le prior perio 14.

Witho Assessing period ex expenditur M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O tion under Section 80 IA of the Act instea he learned CIT(A) erred in not netting off nd miscellaneous income against the enditure. duced from expenditure incurre n arned CIT(A) erred in confirming the a Officer in taxing as income, the follow d been reduced by the appellant compa re incurred during construction period: Particulars terest on Staff Loan enal Interest recovered from employees ale of Power ther income otal ut prejudice to Ground No.

9 above, the le not directing Additional Commissioner of T*) to allow a deduction for expenditure the income of Rs.

1.818.35 lakhs brought out prejudice to Grounds Nos.

9 & 10 IT(A) erred in not directing the Addl.

CIT t ciation allowable to the appellant compa lusion of the income reduced from expend on period. ut prejudice to the appeals) preferred by t lier assessment years, the learned CIT(A) ing the depreciation allowance, as company pursuant to the exclusion of inc penditure during construction period nt years. expenses earned CIT(A) erred in confirming the dis d expenses of Rs.

1,991.02 lakhs. out prejudice to the above, the learne Officer may be directed to disallow only xpenditure, if any, after setting off p re against prior period income.

158 4413/M/2004, 43 to 4745/M/2007, Ors ad of the net ff the interest interest and ed during action of the wing amounts any from the Amount (Rs.

In Lakhs) 91.29 5.77 49.29 1,672.00 1,818.35 earned CIT(A) of Income-tax e incurred in t to tax.

0 above, the to re-compute any pursuant diture during the appellant ) erred in not due to the come reduced in earlier allowance of ed CIT(A) / the net prior prior period 15.

Witho learned CI period exp Provision ma 16.

The le the provisi 92.

The assessee a 18/07/2018, which a 1.

The groun other grou 2.

The learne passing as legal and assessmen lacked jur 143(3) dat performing 3.

The learne passing a assessmen Commissio in the ab section 12 92. ion 12 92.1 The identical ad assessment year 200 finding in those asse the year under cons submission of the pa under consideration 2004-05, therefore fo M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O out prejudice to Ground Nos.

13 & 14 IT(A) may be directed to allow deduction penses in the respective assessment years ade for Obsolete Stock earned CIT(A) erred in confirming the dis ion, for obsolete stock of Rs.

45.92 lakhs. also raised additional grounds are reproduced as under: nd of appeal is independent and without nds of appeal filed earlier, pending dispo ed Additional Commissioner of Income ssessment order under section 143(3) wi d valid jurisdiction under the Act to nt order.

The Additional Commissioner of risdiction to pass the assessment order u ted 25th January 2007 and to exercise th g the functions of an Assessing Officer. ed Additional Commissioner of Income assessment order under section 143(3) nt proceedings were initiated by oner of Income Tax.

Such order passed is bsence of an order transferring, jurisd 7 to the Additional Commissioner of Incom dditional grounds have been ad 02-03 to AY 2004-05.

Therefor essment years, the additional g sideration is also admitted.

Af arties, the facts and circumstan being identical to assessment y ollowing our finding in those ass Corporation of India Ltd..

159 4413/M/2004, 43 to 4745/M/2007, Ors 4 above, the n of the prior s. allowance of by letter dated t prejudice to osal.

Tax erred in ithout having o pass the f Income Tax under section he powers of Tax erred in ) where the the Asst. s bad in law, diction under me Tax. dmitted by us in re following our ground raised in fter considering nces of the year year 2002-03 to sessment years, the additional groun dismissed.

93.

As far as reg concerned, same are in the earlier years mutandis.

94.

Now we take up 2005-06.

The ground 1. "On fac the Ld Rs.

2 amoun charge Rs.7,7 deduct derived 2. "On fac the Ld lakhs I.T.Act M/s.Da 8057/M 3.

8057/M 3. "The ap ground restore 95.

1 CIT(A) in allowing d interest on delayed provision no longer r sales amounting to ₹ M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O nds for the year under conside gular grounds raised by the covered by the grounds raised s and therefore same are d p the appeal of the Revenue for a ds raised by the Revenue reprodu cts and in the circumstance of the case CIT(A) erred in holding that the receipt am 555.06 lakhs from delayed paymen nt of Rs.60.82 lakhs as provision no longe es of Rs.

1, 11, 124/- from contractor and 76,029/- from sale of scrap shall be tion u/s 80lA without appreciating that sa d from manufacturing activity of the asses cts and in the circumstance of the case d CIT(A) erred in deleting amount of R being addition made by the A.O. us without applying the decision in th aga Capital Management P Ltd.

Mum/2003)." ppellant prays that the order of CIT(A) on ds be set aside and that of the Assessing ed." 1(one) revenue has challenged fi deduction under section 80IA d payments amounting to R required amounting to ₹ 1, 11, 7, 76, 029/-.

160 4413/M/2004, 43 to 4745/M/2007, Ors eration are also e assessee are by the assessee decided mutatis assessment year uced as under: and in law mounting to nt charges, er required, d amount of entitled to ame are not ssee". and in law Rs.

2017.19 14A of the he case of (ITA No. n the above g Officer be nding of the Ld. of the Act on Rs.60.82 lakhs, , 124 and scrap 95.1 The learned As charges emanated fro therefore same is no could be considered assessee but not d Similarly regarding t Officer held that sam consideration.

Simil also disallowed.

The 80 IA in respect of th “2.

Ground business eligi 1.

De 3.

M 4.

Pr 2.1 This issu Appellate Com 2004-05. m 2004-05.

In t details of var has held tha respect of int provision no predecessor i as far as inte required are allow deduct and in respe Assessing Of miscellaneous incomes, det proceedings c activity.

Howe M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ssessing Officer noted that de om the debit balance lying with ot profit of the industrial unit as profit attributable to the b derived from the business of he provision no longer required me are not part of the income of arly the claim of scrap sales for Ld.

CIT(A) allowed the deductio hose receipts observing as under d No.9 is against excluding from the ible for deduction u/s.

80IA the following nterest income Rs.

91.7 elayed payment charges Rs.

255 iscellaneous Income Rs.

407 rovision no longer required Rs.

60.8 ue has been discussed in detail by m mmissioner in appellant's appeal for As that appeal, Appellate Commissioner ha riety of decisions on the issue under con at appellant is not entitled to deductio terest income.

As far as delayed payme longer required are concerned.

The d is in favour of appellant.

There is no chan erest, delayed payment charges and prov concerned.

Therefore, Assessing Officer tion u/s.

80IA in respect of delayed pa ect of provision no longer required.

T Officer in respect of interest is uphel s income is concerned, it is noticed that m tails of which have been filed in cannot be said to be derived from appel ever, two of these incomes, charges from Corporation of India Ltd..

161 4413/M/2004, 43 to 4745/M/2007, Ors elayed payment the debtors and t directly and it business of the f the assessee. d, the Assessing f the year under r deduction was on under section r: profits of the amounts: 74 lakhs 55.06 lakhs 7.08 lakhs 82 lakhs. my predecessor ssessment Year as gone into the nsideration and on us.

80IA in nt charges and decision of my nge in the facts vision no longer r is directed to ayment charges The decision of ld. ion of ld.

As far as majority of these the appellate llant's business m contractors at Rs, 1, 11,12 having nexus Assessing Off two items.

Th income is reje 95.2 We have heard dispute and perused has followed finding charges and provision facts as compared to As well as issue of t have decided issue i 2004-05.

As far as opinion that same a assessee and since t consideration, the Ld deduction under se Regarding charges fr sale of a scrap amo that same are directly of the assessee.

In view of order of the Ld.

CIT(A uphold the same.

Th accordingly dismissed M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 24/- and sale of scrap at Rs.7,76,029 with the manufacturing activity of appel fficer is directed to grant deduction in r he claim of deduction in respect of balance ected.” rival submission of the parties the relevant material on record of his predecessor as far as d n no longer required in view of n o the immediately preceding as he deduction on delayed paym in favour of the assessee in a provision no longer required, are in respect of the business o the said income crystallized in d.

CIT(A) is justified in consideri ction 80IA in the year under om contractors amounting to ₹ unting to Rs.

7,76,029/-, the y having nexus with the manufa learned DR failed to rebut suc f our discussion, we do not find A) on the issue in dispute and he ground No.1 of the appeal of d.

162 4413/M/2004, 43 to 4745/M/2007, Ors 9/- are directly llant.

Therefore, respect of these e miscellaneous on the issue in d.

CIT(A) delayed payment no change of the ssessment year. ent charges, we assessment year we are of the operation of the the year under ing the same for r consideration.

1,11,124/- and Ld.

CIT(A) held acturing activity ch finding of the any error in the accordingly, we f the Revenue is 96.

The ground No. of ₹ 2017.19 lakhs m of the Act.

The asses earned from debts co therefore no borrowe income. we income.

The Assessi regarding interest ex administrative expen for earning exempt Accordingly, the proportionate admini CIT(A) however delete “I have perus 7 Note No.

12 on which tax had to be co recommendat therefore, an any attention regard to cha income from t is not spendi for earning investments u 14A.

The di deleted.” 96.1 We have heard dispute and perused identical issue of the M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 2 (two) of the appeal relate to t made by the Assessing Officer un ssee claimed that tax-free inter onverted by the state Electricity ed funds had been utilised for ng Officer admitted the claim xpenditure, however according nses must have been incurred b ted income but same were Assessing Officer made d istrative expenses of ₹ 2 017.19 ed the same observing as under sed the facts of the case.

I have also ana 2 forming part of the accounts.

It is a fact free fence Tries, Income has been earne ompulsorily acquired by the appellant o tion of Ahluwalia Committee of Govt. investment where appellant does not n or time with regard to either its mainte ange of the investment pattern or with reg these funds.

To my mind, this is a case w ing anything either for maintaining the i tax free income thereon.

Therefore, i under consideration are outside the sc isallowance made by Assessing Office rival submission of the parties d relevant material on record e disallowance under section 14 Corporation of India Ltd..

163 4413/M/2004, 43 to 4745/M/2007, Ors the disallowance nder section 14A rest income was Board as bonds yielding taxable of the assessee to him certain by the assessee not disallowed. isallowance of 9 lakhs.

The Ld. : alyzed Schedule that investment ed by appellant on the basis of . of India. is, have to devote enance or with. gard to earning where appellant investments Or, t is held that cope of Sectior! er is therefore on the issue in d. ssue in d.

We find that 4A in respect of the administrative ex the Assessing Officer of assessee, and ther 2004-05, the issue o earning exempted i Assessing Officer.

Th is accordingly allowed AY 2006-07 97.

Now, we take u year 2006-07.

The gr dated 03/05/2011 ar The appellant passed by th Payer Unit, M Act, 1961 ('the Decommissio 1.

The learn appellant, credited to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O xpenses has been restored by u r in assessment year 2004-05 in refore following our finding in a of disallowance of administrati income is restored back to he ground No.2 two of the appea d for statistical purposes. up the appeal of the assessee rounds raised by the assessee v re reproduced as under: t company objects to the order dated 28 F he Commissioner of Income-Tax (Appeal Mumbai [*CIT(A)] under section 250 of th e Act') on the following among other groun oning Levy ned CIT(A) erred in confirming as in an amount of Rs.

3,021.02 sioning Levy collected by the appellant co Decommissioning Fund ned CIT(A) erred in confirming as in an amount of Rs.

3.594.39 lakhs b o the Decommissioning Fund.

Renovation & Modernisation Fund ned CIT(A) erred in confirming as in an amount of Rs.

3,269.47 lakhs b o the Renovation and Modernisation Fund Corporation of India Ltd..

164 4413/M/2004, 43 to 4745/M/2007, Ors us to the file of n case of appeal assessment year ive expenses for the file of the l of the Revenue for assessment vide form No.

36 February 2011 ls), Large Tax he Income Tax nds: ncome of the lakhs being ompany. ncome of the being interest d.

Interest on R 4.

The learn appellant, credited to DISALLOWAN 5.

The lea expenses u 6.

6.

The lear company h free intere Section 14 7.

The lea determine based on 8D is not a 8.

The lea made by th 9.

The lear the appella lakhs, disa Section 14 the appell 2004-05.

04-05.

The disallowan 11.

Withou under sec reduced co Income re construction 12.

The le Assessing which had expenditur Sr.

Ot M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Research & Development Fund ned CIT(A) erred in confirming as in an amount of Rs.

1,934.30 lakhs b o the Research and Development Fund.

NCE UNDER SECTION 14A arned CIT(A) erred in confirming the dis under Section 14A of the Act of Rs.4.073. rned CIT(A) erred in ignoring the fact that had not incurred any expenditure for ea est income and accordingly, the disallo 4A is not warranted. arned CIT(A) erred in directing the Assess the expenditure incurred for earning e the criteria which is same as Rule 8D, applicable for assessment year 2006-07. arned CIT(A) erred in not considering the he appellant company in its correct persp rned CIT(A) erred in not considering the s ant company to allow the expenditure of allowed by the appellant in the return of 4A of the Act, following the assessment or lant company's own case for the asse appellant company therefore pray nce under section 14A of the Act be delete ut prejudice to the above, the disallowanc tion 14A of the Act is on a higher side onsidering the facts of the appellant comp duced from expenditure incurr n earned CIT(A) erred in confirming the Officer in taxing as income, the follow d been reduced by the appellant comp re incurred during construction period: Particulars terest on Staff Loan enal Interest recovered from employees ale of Power ther income Corporation of India Ltd..

165 4413/M/2004, 43 to 4745/M/2007, Ors ncome of the being interest sallowance of 58 lakhs. t the appellant arning the tax owance under sing Officer to exempt income although Rule e submissions pective. submissions of f Rs.

2,062.97 f income under rder passed in essment year ys that the ed. ce of expenses and must be pany. red during action of the wing amounts pany from the Amount (Rs.

In Lakhs) 98.76 76.

98.76 76.50 1,321.31 1,185.53 To 13.

Withou erred in company t of the inco 14.

Witho learned CI compute t pursuant expenditur 15.

Withou company erred in n the appel reduced fr assessmen Prior period 16.

The le prior perio 17.

The le made by th 18.

The ap should be 19.

Without pr Officer ma expenditur against pr 20.

Without pr not accept deduction assessmen Provision ma 21.

21.

The le the provisi Addition of c 22.

22.

The le relating to M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O otal ut prejudice to Ground No.

12 above, the l not considering the submissions of to allow a deduction for expenditure incur me of Rs.

2,682.10 lakhs brought to tax. out prejudice to Grounds Nos.

12 & 1 IT(A) erred in not directing the Assessing the depreciation allowable to the appel to the exclusion of the income r re during construction period. ut prejudice to the appeals) preferred by in the earlier assessment years, the le ot re-computing the depreciation allowan lant company pursuant to the exclusi rom expenditure during construction per nt years. expenses earned CIT(A) erred in confirming the di d expenses of Rs.

354.04 lakhs arned CIT(A) erred in not considering the he appellant company in correct perspect ppellant company prays that the prior pe allowed as deduction. rejudice to the above, the learned CIT(A ay be directed to disallow only the ne re, if any, after setting off prior period rior period income. rejudice to above grounds, the learned C ting the submission of the appellant comp of the prior period expenses in th nt years, to which it pertains. ade for Obsolete Stock earned CIT(A) erred in confirming the di ion made for obsolete stock of Rs.

300.95 consultancy charges earned CIT(A) erred in not adjudicating addition of the consultancy income of Rs Corporation of India Ltd..

166 4413/M/2004, 43 to 4745/M/2007, Ors 2,682.

Ors 2,682.10 learned CIT(A) the appellant rred in respect 13 above, the g Officer to re- llant company reduced from the appellant earned CIT(A) nce, as due to ion of income riod in earlier isallowance of e submissions tive. eriod expenses A) / Assessing et prior period d expenditure CIT(A) erred in mpany to allow he respective isallowance of 5 lakhs. on the issue .

36.17 lakhs.

23.

The ap directed to Deduction un 24.

24.

The l following deduction Sr.

Mi To 25.

The le made by th 26.

The appel included i under sect 27.

Withou erred in c basis and business" instead of 28.

The appellant miscellane Depreciation 29.

29.

The le relating to Machinery eligible to 30.

30.

The lea verify the verification Computation 31.

31.

The le Assessing company profit unde M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ppellant company requests that the lear o decide the issue relating to consultancy nder section 80-IA learned CIT(A) erred in confirming the income from the "Profit of the busines under Section 80 IA of the Act.

Particulars terest Income iscellaneous income otal arned CIT(A) erred in not considering the he appellant company in correct perspect lant company prays that the above inco in the 'profit of business' while comput tion 80 IA of the Act. ut prejudice to Ground Nos.

24 to 26, the l confirming the exclusion of interest inco d miscellaneous income from the "P eligible for deduction under Section 80 f the net income. learned CIT(A) erred in rejected the company for netting off the interest eous income against the interest and othe n arned CIT(A) erred in not deciding on me o the classification of assets under the y for determining the rate at which d the appellant company. arned CIT(A) erred in directing the Asses supplementary tax audit report and base n, decide on the claim made the appellant n of book profits under section 115JB earned CIT(A) erred in confirming the Officer in increasing the net profit of by the follo the following amounts, while compu er Section 115JB of the Income Tax Act, 1 Corporation of India Ltd..

167 4413/M/2004, 43 to 4745/M/2007, Ors rned CIT(A) be income. e exclusion of ss" eligible for Amount (Rs.

In Lakhs) 121.82 387.49 509.31 e submissions tive. ome should be ting deduction learned CIT(A) ome on gross Profits of the 0IA of the Act claim of the t income and er expenditure. erits, the issue head Plant & depreciation is ssing Officer to ed on the said t company.

B action of the the appellant uting the book 961.

Sr.

In 3.

In Re 4.

In 5.

Di To 98.

The assessee ha 18/07/2018, which a 1.

The learne passing as legal and v order.

Th jurisdiction dated 31s performing 3.

The learne passing a assessmen of Income of an orde Additional 98.1 We have alread in earlier assessment assessment years, th consideration are adm ground raised by t assessment years 2 finding in those asse year under considera M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Particulars ecommissioning Reserve terest on decommissioning Reserve terest on Renovation & Modernization eserve terest on Research & Development Reserve isallowance under section 14A of the Act otal as filed additional ground vide are reproduced as under: nd of appeal is independent and withou nds of appeal filed earlier, pending dispo ed Additional Commissioner of Income ssessment order under section 143(3) w valid jurisdiction under the Act to pass th e Additional Commissioner of Income n to pass the assessment order under s st December 2008 and to exercise th g the functions of an Assessing Officer. ed Additional Commissioner of Income assessment order under section 143(3 nt proceedings were initiated by the Dy.

Tax.

Such order passed is bad in law, i er transferring, jurisdiction under sectio l Commissioner of Income Tax. dy admitted identical additional t years, therefore following our f he additional grounds raised in mitted for adjudication. udication.

The iden the assessee had been dismi 2002-03 to 2004-05, therefore essment years, additional groun ation are also dismissed.

168 4413/M/2004, 43 to 4745/M/2007, Ors Amount (Rs.

In Lakhs) 3,021.02 3,594.39 3,269.47 1,934.30 4.073.58 15,892.76 it’s letter dated ut prejudice to osal.

Tax erred in without having he assessment e Tax lacked section 143(3) he powers of Tax erred in 3) where the Commissioner n the absence on 127 to the grounds raised finding in earlier the year under ntical additional issed by us in e following our nd raised in the 99.

The regular grou to amount collected as income of the decommissioning levy identical to ground N 99, therefore, followi assessment year 199 100.

The ground No credited to renovatio 4(four) of the appeal development fund.

Th covered by our find therefore following ground No.

3( three) accordingly dismissed 101.

The Ground Nos disallowance amount the Act.

101.1 The brief assessee earned tax on tax-free bonds.

Th administrative expen M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O und Nos.

1(one) and 2(two) of th from customers against decom e assessee and interest cr y fund respectively.

The issues i Nos.

5 and 6 raised in assessm ing our finding in ITA No.

202/ 8-99, the issues are decided mu o.

3(three) of the appeal rela on and modernisation fund.

T relates to interest credited to th he issue in dispute involved in t ding in appeal for assessmen our finding in assessment y and 4 (four) of the appeal of t d. s.

5 to 11 of the appeal of the as ting to ₹ 4,073.58 lakhs under facts qua the issue in disput free interest amounting to Rs. he assessee made proportionate nses amounting to ₹ 2062.9 7 Corporation of India Ltd..

169 4413/M/2004, 43 to 4745/M/2007, Ors he appeal relate mmissioning levy redited to the in dispute being ment year 1998- /Mum/2004 for utatis mutandis. ates to interest The ground No. ground No. he research and these grounds is nt year 98-99, year 98-99, the the assessee are ssessee relate to r section 14A of te are that the 22905.68 lakhs disallowance of lakhs.

But the Assessing Officer i disallowance of inter 2544.

42 lakhs [und administrative expen under rule 8D(2)(iii) 4073.58 and after s assessee, made net d 2010.61 lakhs.

The r is reproduced as und 3.5 The work follows: Sr.

No. a.

Op b.

Cl c.

Av d.

To e.

To i) ii) f.

Av g.

Di c/ h.

Di of i.

To 14 101.2 The Ld.

CI of invoking rule 8D o expenditure out of M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O nvoked Rule 8D of Rules rest expenditure amounting to der rule 8D(2)(ii) of rules] and nses amounting to rupees to ₹ @ 0.5 % of average investment subtracting the su-moto disall disallowance under section 14A relevant computation of disallow der: king of disallowance u/s.

14A read with Particulars pening Balance of Investment losing Balance of investment verage Investment (a+b) /2 otal interest debited to P&L A c. otal Asset as per Balance sheet Opening Balance Closing Balance verage total assets i.e. [e (i) and e(ii)]/2 isallowance under Rule 8D(ii) i.e. dx /f isallowance under rule 8D(ii) = 0.5% f the average investment otal disallowance under Rule 8D r.w.s 4A ie. g + h IT(A) upheld the action of the A of the rules, but regarding the c head office expenses reduced Corporation of India Ltd..

170 4413/M/2004, 43 to 4745/M/2007, Ors and computed o rupees to Rs. disallowance of 1529.16 lakhs [ t] totaling to Rs. lowance by the amounting to ₹ wance by the AO h Rule 8D is as Amount (Rs.

In Lakhs) 302291.45 309372.05 305831.75 23549.00 2723628.55 2937416.49 2830522.52 2544.42 1529.16 4073.58 Assessing Officer claim of interest while claiming deduction under sect Assessing Officer to double disallowance.

101.3 We have perused the relevant and 2005-06, the As assessee that no inte investment in tax-fr assessment year 200 section 14A of the Ac in proportion to the assessee. assessee.

In the year the method of disallo the Assessing Officer made su-moto disa administrative expen interest income.

But Officer has rejected t and invoked Rule 8 introduced by the According to the retrospective applicat in the case of CIT V M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O tion 80IA of the Act, the Ld.

CIT verify the claim of the assessee heard rival submission of th material on record.

We find tha ssessing Officer has accepted t erest expenditure has been incu ree bonds, therefore the Asses 04-05 and 2005-06 made disa ct only in respect of the administ exempted income to the total under consideration the assess owance of administrative expen r in assessment year 2004-05 a allowance of ₹ 2,062.97 lakh nses as incurred for earning in the year under consideration the su-moto disallowance made 8D of Income-tax , rules 196 CBDT wide notification dated Assessing Officer said rule tion.

But we find that Hon’ble S Vs Essar Technologies Ltd ( C Corporation of India Ltd..

171 4413/M/2004, 43 to 4745/M/2007, Ors T(A) directed the e so as to avoid he parties and at in AY 2004-05 the claim of the urred for making ssing Officer in allowance under trative expenses turnover of the see has accepted nses adopted by and accordingly hs out of the g the exempted n, the Assessing by the assessee 62 , which was d 04/03/2008. e was having Supreme Court Civil Appeal No.

2165 of 2012) he assessment year 20 assessment years.

Th under section 14A o consideration is rejec 101.4 The fact investment in the bo accepted by the Asse 2005-06, therefore n section 14A of the Ac Rule of consistency expenses, the asses following the metho Officer in assessmen made by the Assessin finding of the Ld.

CIT find that identical is respect of the admin the file of the Asses therefore following o issue of disallowan exempted income is M/s Nuclear Power ITA Nos. r ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O eld that Rule 8D is applic 008-09 onward and can’t be a herefore the computation of dis of the Act following Rule 8D fo cted. that no interest has been onds bearing tax-free interest in essing Officer in assessment ye no disallowance for interest can ct in the year under considerati y.

As far as disallowance for ssee itself has made suo-mot od of disallowance adopted by nt year 2004-05.

Therefore th ng Officer following the rule 8D T(A) on the issue in dispute are ssue of the disallowance under nistrative expenses has been re sing Officer in assessment yea our finding in assessment yea nce of administrative expense s restored back to the file of Corporation of India Ltd..

172 4413/M/2004, 43 to 4745/M/2007, Ors able only from applied for prior allowance made or the AY under n incurred for ncome has been ar 2004-05 and be made under on following the r administrative to disallowance y the Assessing he disallowance is rejected.

The e set aside .

We r section 14A in estored by us to ar 2004-05, and ar 2004-05, the es for earning f the Assessing Officer.

The grounds are accordingly allow 102.

The ground No incomes reduced f construction period a by the Ld.

CIT(A). adjudicated by us in 03 to 2005-06, and t 12 to 15 of the appea 103.

The ground Nos of prior period Expen adjudicated by us in 03 to 2005-06, and t 16 to 20 of the appea 104.

The ground No provision for obsolet the assessee and ther 105.

The ground No consultancy income o from the tax audit 36.17 lakhs were sh profit and loss accou M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O of the appeal of the assessee fr wed for statistical purposes. os.

12 to 15 of the appeal re from the expenditure incurre and this claim of the assessee ha We note that identical groun appeal for earlier assessment y therefore following our finding, t al decided mutasis mutandis. s.

16 to 20 of the appeal relate nses. late nses.

We note that identical gro appeal for earlier assessment y therefore following our finding, t al are decided mutasis mutandis o.

21 of the appeal relates to te stock.

The said ground was refore same is dismissed as infr o.

22 of the appeal relates of ₹ 36.17 lakhs.The Assessing report that consultancy servic hown as receivable but was not unt.

The assessee explained that Corporation of India Ltd..

173 4413/M/2004, 43 to 4745/M/2007, Ors rom Nos.

5 to 11 lates to certain ed during the as been rejected nds have been ears from 2002- the ground Nos. to disallowance unds have been ears from 2002- the ground Nos. . disallowance of not pressed by ructuous. to addition for Officer observed ce charges of ₹ t credited in the t the bill toward consultancy service same were forwarded and therefore same relevant assessment contention of the as following mercantile assessee ought to ha the Ld.

CIT(A) , th computing book profi find that Ld.

CIT(A) h observing as under: “Ground 60 Addition of co I have peruse understand t principles bei year.

As per the rev it recognises the Quality A challenged sa using mercan be said to be p 115JB of the A Accordingly, t for 115JB Rs.

105.1 Accordingl dismissed.

202, 114, 3867/M/2008, 474 2452/M/2011 & O amounting to ₹ 36.17 lakhs d for quality assurance inspectio was not recognised as inco t year.

The Assessing Office ssessee on the ground that th e system of the accounting ave offered this amount for tax p he assessee challenged this fit under section 115 JB of the A has allowed his ground in favour onsultancy service charges ed the nature of the consultancy service c that the case pertain to the revenue ing followed by the appellant company fr venue recognition policies of the appellan the income only after the approval is rec Assurance department.

This principle aying that the books of accounts are ntile system.

Accordingly, the above addi permissible for computing book profits un Act. ts un Act. the above ground no.

60 is allowed. (rel .

36.17 lakh)” ly this ground, being infruct Corporation of India Ltd..

174 4413/M/2004, 43 to 4745/M/2007, Ors was raised but on or test report ome during the er rejected the he assessee was and therefore purposes.

Before addition while Act.

However, we r of the assessee charges and recognition from year to nt company, ceived from cannot be maintained ition cannot nder section lief allowed tuous, same is 106.

The ground no income and miscellan decided by us in ea therefore following o grounds no.

24 to 28 107.

The ground No assessee for deprecia classified as plant an was given that additi ₹ 534,37,04, 104/- Atomic Power Plant (T composite part of p under ‘plant and ma relied on the decisio CIT Vs M/s Anand wherein it is held th machinery even if it i requirements of the a referred to the defini the Act.

He specific Finance Act 2003, wi makes it clear that p Officer also referred M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O os.

24 to 28 of the appeal re neous income.

The identical gro arlier assessment years 2002- our finding in those assessm of the appeal are decided muta o.

29 of the appeal relates t ation on a reactor building at h nd machinery.

In the tax audi on to plant and machinery incl relating to building construct TAPP) unit No.

3 (three) and 4(f plant and machinery and ther chinery’ of block of asset. the A on of Hon’ble Supreme Court theatre in SLP (Civil) Nos.437 hat a building cannot be treate is especially constructed in acco assessee’s business.

The Assess ition of the “plant” provided in cally referred to amendment i ith effect from assessment year plant does not include building to section 43B of the Act, spe Corporation of India Ltd..

175 4413/M/2004, 43 to 4745/M/2007, Ors elate to interest ounds have been 03 to 2005-06, ment years, the asis mutandis. mutandis. to claim of the higher rate being it report, a note ludes amount of ted in Tarapor four), which is a refore classified Assessing Officer in the case of 73-74 of 1999, ed as plant and ordance with the sing Officer also section 43(3) of inserted by the r 2004-05 which g.

The Assessing ecifying as plant does not include ‘te ‘furniture and fittin Assessing Officer res rate of the 10% allow “7.5.

In the whatsoever in ruling of the provisions in within the cla the class of p granted depre 10%.

Since th when the add machinery the less than 18 depreciation record that a claimed depr avoid unwarr abundant pre depreciation Accordingly, (i.e.15% -5% = account work 107.1 Before us the l Ld.

CIT(A) has not d asset under plant and 107.2 We have h issue in dispute and CIT(A) has referred t in dispute, which are M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ea bushes’ or the ‘livestock’ ngs’.

In view of the above d stricted the depreciation on the wable for factory buildings, obser light of aforesaid discussion I have no nferring that the addition is to building b Hon'ble Apex Court and also by virtue o the form of Section 43(3).

The impugned ass of bldg i.e. factory bldg and does not plant and machinery.

Accordingly the a eciation at the rate applicable to the facto he assessee has not provided any data dition on this account is made to class of erefore it is taken of having put into use f 82 days.Consequently assessee has be @5%.

It is not ascertainable form the m t what rate i.e.

15% or 80% or 100% as reciation on account of this addition.

H ranted disallowance on this account, as ecaution it is assumed that the assessee on the impugned assets at the rat excess claim of depreciation at the ra = 10%) stands disallowed.

The disallowa s out to Rs.

53,43,70,410/-.” learned counsel for the assessee decided this issue of the class d machinery. machinery. heard rival submission of the d perused relevant material on to the submission of the assess e reproduced as under: Corporation of India Ltd..

176 4413/M/2004, 43 to 4745/M/2007, Ors or ‘building’ or discussion, the building at the rving as under: o hesitation by virtue of of statutory assets falls t fall within assessee is ory bldg i.e. or material of plant and for a period een granted material on ssessee has However, to a matter of e has claim te of 15%. ate of 10% ance on this e submitted that sification of the parties on the record.

The Ld. see on the issue “The learned submissions perspective.

The appellan Government electricity.

I appellant co Pump house As per Note "Additions t 53,437 lacs 4, which in v Plant & Ma 'Plant & Mac In this conne that "The b simple at req power plant & classif asset allowe The AO has in the case provided in s of the appell "Accor rate a assess the ad machi a perio been g from th M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O d Addl.

Commissioner erred in not co s made by the appellant company nt is a Public Sector Enterprise who of India, engaged in the business of In the process of generating nuclea ompany requires Reactor building, Ser building & Turbine building. e No.

5 of Annexure VI of the Tax to Plant & Machinery includes an a relating to Building constructed in TAP view of the appellant company are com chinery and therefore should be cla chinery' block of asset". ection, it was submitted by the appel building taken as plant & machiner e building but the reactor building.

It is quisite pressure to sustain the chain r generation.

Hence, it has been c & machinery.

In view of above, the sa fied under the head 'Plant & Machi and depreciation in respect of the sa ed as a deduction." relled on the decision of the Hon'ble S of Anand Theatre and the definition section 43(3) of the Act and rejected lant and further stated as under: rdingly, the assessee is granted depre applicable to factory building y building l.e.

10 see has not provided any data or m ddition on this account Is made to clas nery therefore it is taken of having p od less than 182 davs.

Consequently granted depreciation @5%.

It Is not he material on record that at what rat Corporation of India Ltd..

177 4413/M/2004, 43 to 4745/M/2007, Ors onsidering the in its correct olly owned by f generation of ar power, the rvice Building, Audit Report amount of Rs.

PP # units 3 & mposite part of assifled under llant company ry are not the s the structure n reaction for clubbed under ame has been inery block of ame should be Supreme Court of the "Plant" the contention eciation at the 0%.

Since the material when ss of plant and ut into use for assessee has ascertainable te i.e. @15% or 80% o accoun disallo precau deprec Accord 10% (l In this conne the Concise under: "an ap chain Further, the "1. a p provid school 2. the Turbine Bu The Turbine that houses: (1) Turbine, systems, (2) Condens generators (3) Circulatin (4) Electrical plant compon (5} Deminera cooling plant M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O or 100% appellant has claimed de nt of this addition.

However, to avoid owance on this account, as a matter ution it is assumed that appellant ciation on the impugned assets at the dingly, excess claim of depreciation l.e.

15% -5%) =10%) stand disallowed) ection, the appellant company submitt Oxford dictionary the word "Reactor pparatus or structure in which a cont reaction releases energy" word "building" is defined as under: permanent fixed structure forming an ding protection from the elements (e l, factory, or stable). constructing of such structures. ilding Building is an enclosed metal and gi generator and the support lubricatio ate-feedwater systems supply water ng water to and from condenser, l switchgear rooms that supply elect nents, alised water system that supplies cl t components, and Corporation of India Ltd.. ndia Ltd..

178 4413/M/2004, 43 to 4745/M/2007, Ors eprecation on d unwarranted r of abundant has claimed e rate of 15%. at the rate of " ted that as per is defined as trolled nuclear enclosure and (e.g. a house, irder structure on and cooling r to the steam trical power to lean water for (6) Control R either suppl power to the In view of th such nomenc essence of c of the asset 'Bullding' fo considered a The appellan asset one ne CIT v Navod found excep to suit differ that the fun ordinarily u specification sense as n merely hous such buildin business itse In the instan building and On a perus structures a example, Re sustain the c Turbine buil effect of oil a Generator Hy Service build exposure to fuel.

Pump house house, whic M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O Room outside the building are the tran ly power to the plant for start-up o e grid for distribution he above, the appellant company sub clature does not affect the nature of th classification of assets should be bas ts.

One type of assets may be cons or an entity whereas the same as as 'Plant' for another entity. nt submitted that for determining the eeds to examine on the basis of func daya (2004) 271 IT 173(Ker), the Hon' tion for a film studio, because it coul rent settings necessary for productio nctional test cannot be disregarded. understood are buildings according ns, while plant is understood in a necessary for business.

While a bu es the business, cannot be treated as ng is used as a tool of the trade w elf is carried on. it can count as a plan nt case, reactor building, turbine bu d pump house building are classified a sal of the above note, it is observe are designed to support the power ge actor building is a structure at requisi chain reaction for power generation lding, on the other hand, designed and gas fire that can occur from the T Hydrogen Cooling system. ng system. ding is designed for safety against radio activity during handling and sto e building is a Condenser circulating h has been provided for each individ Corporation of India Ltd..

179 4413/M/2004, 43 to 4745/M/2007, Ors nsformers that or that supply mitted that as he assets.

The sed on the use sidered as the ssets can be e nature of an ctional test.

In 'ble High court ld be modified on of films, so Bulldings as to particular more flexible uilding, which s plant, where with which the nt. ullding, service as 'Plant'. ed that these eneration.

For ite pressure to to control the TMOT and the unacceptable orage of spent g water pump dual unit.

The level of the p been optimis forebay, CW House has o etc.

Condens condenser a separate dis discharge of EFFECT OF The appellan has been am 2004.

Effec business is c functional te designed for auditoriums, to such build In the insta power gener building for with a limite have nomen function of a The appella subsequent treated as disallowance In view of th nature of pla CAPITALIZA The AO had or material w made to clas of having p M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O pump house and pumping head of CW sed on the bass of varying water W Pump House and the Main Condense open wet walls and facility for provid ser circulating water is pumped thro and discharge from condenser is scharge channel to the outfall structu f warm water into the sea.

F AMENDMENT IN ACT nt company submitted that the defin mended by Finance Act, 2003 with ef ct of which would be that all buil carried on, could not be treated as pl est was understood to mean that build r special use, as in the case of hospita , were treated as plant entitling highe dings. ant case, the functions of the asset rating plant.

Also the asset cannot multi-purpose utilities.

The asset Is in ed purpose of generating electricity.

T nclature of a building but serves th a plant. h a plant. ant also submitted that in the earl assessment years, the nuclear r machinery by the assessing off e was made by the AO in respect of th he above discussion, I hold that the a ant.

ATION OF TAPS-4 held that the appellant had not provi when the addition on ascount of facto ss of plant and machinery.

Therefore put into use for a period less tha Corporation of India Ltd..

180 4413/M/2004, 43 to 4745/M/2007, Ors W pumps have levels, in the er.

CCW Pump ding stop logs ough the main led through re for suitable nition of Plant ffect from 1-4- ldings, where lant.

However, dings specially als, hotels and er depreciation are akin to a be used as a n the existence The asset may he commercial lier year and reactors were ficer and no he same. asset is in the ided any data ory building is e it was taken an 182 days.

Consequentl @ 5% (50% of In this rega commercial o assets are p use for more 12 Septemb Western Reg course of app In view of ab 180 day, de rate 15% ins order.

I have peru appellant co September 2 Regional Ele be conclude September 2 In view of depreciation 107.3 We agree the assessee that Ld issue of classification and machinery by th issue in dispute as w could be termed as therefore, both parti merit.

In our opinion of the Hon’ble Supre M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ly the appellant company was grante of 10% ie. rate of deprecation applicabl ard, the appellant submitted that operation of TAPS -4 was 12.9.2005 a put into use from this date and therefo e than 180 days.

In this connection, ber 2005 written by the appellant gional Electricity Board was submitt pellate proceedings. bove, since the asset was put into use epreciation on the same should be a stead of 5% as allowed by AO in th used the facts and contentions pro ompany.

I have also perused the le 2005 written by the appellant compan ectricity Board.

Perusing the aforesald ed that the plant was operationa 2005. iona 2005. the above case, the A is directed for the entire year.” with the contention of the lear .

CIT(A) has not given a specific n of the building under the ca he assessee.

But as far as fact whether the building which is pa s ‘plant and machinery’, availa ies argued before us to decid , the ld.

Assessing Officer has fo eme Court in the case of M/s Corporation of India Ltd..

181 4413/M/2004, 43 to 4745/M/2007, Ors ed deprecation le to building). the date of and hence the ore are put into a letter dated t company to ted during the e for more than allowed at the he assessment ovided by the etter dated 12 ny to Western d letter, it can al as on 12 to allow the rned counsel of c finding on the ategory of plant ts related to the art of the reactor able on record, de the issue on ollowed the ratio Anand theatre (supra), and referred find any error on the depreciation at the r building under refere cited by the Assessin therefore, we uphol ground No.

29 of dismissed.

108.

3 given by the Ld.

CIT audit report in respec 108.1 The brief original return of consideration the as amounting to ₹ 74,7 income it claimed de for difference was ex arithmetical error wh the Ld.

CIT(A) the as of plant and machin 80% and 100 % ( h assessee that the ab for assessment year 2 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O to the relevant provisions of th e part of the Assessing Officer in rate of the 10% of written dow ence.

No other decision contrary ng Officer has been brought to ld the finding of the Assessin the appeal of the assessee 30, the assessee is aggrieved wi T(A) for verification of the sup ct of the claim of the additional facts qua the issue in dispu income for the assessmen ssessee claimed depreciation un 750.81 lakhs, however in the re epreciation at ₹ 159,643.98 lak xplained as misclassification o hile computing the written dow ssessee filed ‘engineer’s certifica nery eligible for depreciation at hundred percentile). rcentile).

It was su ove errors were identified durin 2008-09.

A copy of the relevant Corporation of India Ltd..

182 4413/M/2004, 43 to 4745/M/2007, Ors e Act, we do not n restricting the wn value of the y to the decision our knowledge; ng Officer.

The is accordingly ith the direction pplementary tax depreciation. ute that in the nt year under nder section 32 evised return of khs.

The reason f the asset and wn value.

Before ate’ for valuation the rate of the ubmitted by the ng the tax audit annexure to tax audit report for ass during the course o submitted that asses from the tax auditor certified by the aud depreciation were st tax audit report, the verify and allow the no error in the findin accordingly we uphol the assessee is accord 109.

The ground no profit for the purpos the Act.

110.

The ground no dismissed as infructu 111.

Now, we take up year 2006-07.

The g as under: 1.

On the law, th expens deduct M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O sessment year 2008-09 was of the appeal before ld CIT(A). ssee obtained supplementary t in which revised claim of the d ditor and reason for the claim ated.

In view of the additional e Ld.

CIT(A) directed the Asse ground of the appeal.

In our o ng of the Ld.

CIT(A) on the issue ld the same.

30 dingly dismissed. .

31 of the appeal relates to se of computation of book profi os.

31 & 32 being general uous. p the appeal of the Revenue for grounds raised by the Revenue e facts and in the circumstances of the he Ld.

CIT(A) erred in directing A.O not ses from business profits for the purpo tion.

183 4413/M/2004, 43 to 4745/M/2007, Ors also submitted It was further tax audit report depreciation was m of additional supplementary ssing Officer to opinion, there is e in dispute and of the appeal of increase in net it u/s 115JB of in nature, are the assessment are reproduced case and in to reduce of ose of 80-IA 2.

The ap above restore 3.

3 The A or add 111. r add 111.1 The brief f administrative and account of head offi the units eligible for thus the deduction Assessing Officer re identifiable expenses balance expenses h annual net sales of e Assessing Officer co expenses amounting amounting to ₹ 35 15.16%.

Applying th worked out adminis three and four to administrative and o to ₹ 887.51 lakhs, h the amount by which inflated by the asses amount of ₹ 11 557 deleted the disallowa M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O ppellant prays that the order of the Id.

C ground be set aside and that of the Asse ed Appellant craves leave to amend or alter a new ground which may be necessary. facts qua the issue in dispute th other expenses debited to p ice had not been distributed pr deduction under section 80 IA has bee ejected the contention of the have been allocated to the resp ave been allocated in the rat electrical energy and a new cap mputed the ratio of administr to ₹ 54092.94 lakhs to the tota 6706.27 lakhs , which was he said ratio of 15.16%, the A trative and other expenses of ₹ 12 444.55 lakhs and afte ther expenses debited to said u he identified expenses of ₹ 11 5 h deduction under section 80 IA see , accordingly he made disal 7.04 lakhs . on further appeal, ance after accepting the allocatio Corporation of India Ltd..

184 4413/M/2004, 43 to 4745/M/2007, Ors CIT(A) on the essing Officer r any ground hat consolidated profit and loss roportionately to A of the act and en inflated.

The e assessee that pective unit and tio aggregate of pital outlay.

The rative and other al sale of energy worked out to ssessing Officer Rajasthan unit er reducing the units amounting 557.04 lakhs as A of the act was llowance for the , the Ld.

CIT(A) on of identifiable head office expense unidentifiable expens net sale of electrical e finding of Ld. ing of Ld.

CIT(A under: “ALLOCATIO EXPENSES UNDER SECT The appellan passing the proportionate to Profit & Lo section 80lA o administrative not proportion to the admini loss account.

In this conne each unit of relating to eac no unrelated identifiable H respective loc Unidentifiable stations and net sale of Hence, the a the consolidat the expenses therefore, the apportionmen Section 801A.

It was submi expenses are under section M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O es to the respective unit an ses on the basis of ratio of aggr energy and annual capital outla A) qua the issue in dispute is ON OF PROPORTIONATE ADMINISTRAT TO THE UNITS CLAIMING DEDUCT TION 80lA OF THE ACT nt company submitted that the A w e assessment order, has apportio administrative and other expenses deb ss account to units claiming deduction u of the Act of Rs.

11,557.04 lakhs stating e expenses debited to the aforesaid uni nate to and on much lower side as comp istrative & other expenses shown in Prof ction, the appellant company submitted NPCIL is a profit center.

All the expe ch unit is captured at the respective unit expenditure is debited to any site/ unit.

Head office expenses are transferred to cations. e head office expenses are allocated to Po projects in the ratio of aggregate of an electrical energy & annual capital ou administrative and other expenses show ted Profit & Loss Account is a consolidatio of all units including that of 80lA units ere is no unrelated/common expenditure nt to the units eligible for deduction u . itted that all the identifiable & unidentif apportioned to the units claiming dedu n 80lA as mentioned above, no disallow Corporation of India Ltd..

185 4413/M/2004, 43 to 4745/M/2007, Ors d allocation of regate of annual ay .

The relevant reproduced as TIVE TION while oned bited under that its is pared ofit & that enses t and The o the ower nnual utlay. wn in on of and e for under fiable uction wance should be m expenses. expenses.

On the basis computation o administratio the Profit & L submitted by debited in sh do not have under section the said ex computation o I have consid in view of th allowed and A ground of app 111.2 We have h issue in dispute and find that Ld.

CIT(A) c each unit of the ass relating to the unit unidentifiable head o and projects in the r annual capacity outl head office expenses a reasonable allocat that no portion of sai in the computation o In our opinion, there the issue in dispute M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O made in respect of administrative & o s of above, it was submitted that in of deduction under section 80-IA, the ac n and other expenses incurred and debite Loss Account ought to be considered.

It y the appellant that the balance expend it kin dhe consolidated Profit & Loss Acc any bearing to the units claiming dedu n 80-IA of the Act.

Accordingly, no portio xpenditure ought to be deducted in of deduction under section 80-IA of the Ac dered the submissions of the Ld.

Counsel he details brought on record - the sam AO is directed to give relief accordingly. peal is allowed.” heard rival submission of the d perused the relevant material considered the submission of th sessee is a profit centre and a are captured at the respective office expenses are allocated to ratio of annual net sale of electr lay.

In our opinion, the assesse not identified to particular unit tion key.

Accordingly the Ld.

C id administrative expenses ough of the deduction under section e is nowhere in the order of th e and accordingly we uphold Corporation of India Ltd..

186 4413/M/2004, 43 to 4745/M/2007, Ors other n the ctual ed to was diture count uction on of the ct. l and me is This parties on the l on record.

We he assessee that all the expenses e unit and only o power stations rical energy and ee has allocated t on the basis of CIT(A) has held ht to be directed 80IA of the Act. he Ld.

The ground No. ground No. one of dismissed.

113.

The ground No Revenue are general infructuous.

114.

In the result, th in below table: S.

ITA No.

1 202/Mum/20 2 114/Mum/20 3 4413/Mum/2 4 3867/Mum/2 5 4743/Mum/2 6 4744/Mum/2 7 4745/Mum/2 8 4603/Mum/2 9 2452/Mum/2 10 625/Mum/20 11 3553/Mum/2 M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O f the appeal of the revenue os.

2 (two) and 3 (three) of th in nature and therefore same a he appeals are allowed /dismiss AY Assessee/ Revenue Res 004 98-99 Assessee Allo sta 004 99-2000 Assessee Allo sta 2004 2000-01 Assessee Allo sta 2008 2001-02 Assessee Allo sta 2007 2002-03 Assessee Allo sta 2007 2003-04 Assessee Allo sta 2007 2004-05 Revenue Dis 2011 2005-06 Assessee Allo sta 009 2005-06 Revenue Allo sta 2011 2006-07 Assessee Allo sta Corporation of India Ltd..

187 4413/M/2004, 43 to 4745/M/2007, Ors is accordingly e appeal of the are dismissed as sed as indicated sult owed partly for atistical purpose owed partly for atistical purpose smissed. owed partly for atistical purpose 12 3501/Mum/2 Order pronoun Sd (KAVITHA RA JUDICIAL M Mumbai; Dated: 29/11/2023 Rahul Sharma, Sr.

P.S.

Copy of the Order forwa 1.

The Appellant 2.

The Respondent.

CIT 4.

DR, ITAT, Mumbai 5.

Guard file. //True Copy// M/s Nuclear Power ITA Nos.

202, 114, 3867/M/2008, 474 2452/M/2011 & O 2011 2006-07 Revenue Allo sta ced in the open Court on 29/ d/- S AJAGOPAL) (OM PRAK MEMBER ACCOUNTA arded to : BY ORDE (Assistant R ITAT, M Corporation of India Ltd..

188 4413/M/2004, 43 to 4745/M/2007, Ors owed partly for atistical purpose 11/2023.

Sd/- KASH KANT) ANT MEMBER ER, Registrar) Mumbai