Delhi High Court
Ntpc Ltd vs Dcit & Others on 10 January, 2013
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.01.2013
+ W.P.(C) 14562/2006
NTPC LTD ... Petitioner
versus
DCIT & OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr S. E. Dastur, Sr Advocate with
Mr Muralidhar, Ms Bindu Saxena, Ms Aparajita
Swarup, Ms Neha Khattar and Mr K. K. Patra
For the Respondents : Ms Prem Lata Bansal, Sr Advocate with
Mr Ruchir Bhatia
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL
JUDGMENT
BADAR DURREZ AHMED, J
1. By way of this writ petition, the National Thermal Power
Corporation Limited (NTPC Limited), a public sector undertaking, is
seeking the quashing of a notice dated 03.02.2006 issued by the
respondent No.1 (Deputy Commissioner of Income Tax, New Delhi)
issued purportedly under Section 148 of the Income Tax Act, 1961
(hereinafter referred to as 'the said Act'), whereby the said respondent
No.1 has indicated that he has reason to believe that the petitioner's
income chargeable to tax for the assessment year 2000-01 has escaped
assessment within the meaning of the said Section 148 and, therefore, the
respondent No. 1 proposes to re-assess the income for the said assessment
year. By virtue of the said notice, as is the requirement under law, the
petitioner was required to deliver a return in the prescribed form for the
said assessment year within thirty days of the service of the notice. The
said notice was accompanied by a copy of the purported reasons for re-
opening of the case.
2. The reasons are in respect of several assessment years, namely,
1999-2000, 2000-01, 2001-02, 2002-03 and 2003-04. However, we are,
in this petition, concerned only with the assessment year 2000-01. Two
reasons have been set out in the said document. Reason one pertains to
the non-eligibility of deduction under Section 80IA in respect of the steam
turbine of the combined cycle gas power stations belonging to the
petitioner. The second reason pertains to the taxability of income tax
recoverable by NTPC from the State Electricity Boards'. We shall deal
with these purported reasons in greater detail later. For the present, it
would be necessary to set out in brief the challenge of the petitioner to the
impugned notice dated 03.02.2006. According to the petitioner, the notice
is barred by limitation inasmuch as it has been issued beyond four years
from the end of the relevant assessment year. In the present case, 2000-01
is the relevant assessment year. Therefore, the four-year period would
have ended on 31.03.2005. The notice which is impugned in this petition
has been issued on 03.02.2006. This is clearly beyond the period of four
years. The only way in which this notice can be saved is if the factual
position falls within the parameters specified under the proviso to Section
147 of the said Act.
3. It was contended on behalf of the petitioner that before the proviso
to Section 147 of the said Act can be invoked by the revenue, it has to be
shown that there is an escapement of income chargeable to tax from the
assessment done under Section 143(3) of the said Act and that this has
been occasioned by reason of failure on the part of the assessee to make a
return under Section 139 or in response to a notice under Section 142(1)
or Section 148 or a failure on the part of the assessee to disclose fully and
truly all material facts necessary for his assessment for that assessment
year. In the present case, the question of non-filing of a return does not
arise and, therefore, the only two things that need to be seen are whether
any income chargeable to tax has escaped assessment and whether this has
been occasioned by the failure on the part of the assessee to disclose fully
and truly all material facts necessary for assessment in respect of the
assessment year 2000-01.
4. According to the learned counsel for the petitioner, neither of these
two conditions have been satisfied. In other words, there is no income
chargeable to tax which has escaped assessment nor has there been any
failure on the part of the assessee to disclose fully and truly all material
facts necessary for the assessment.
5. It has also been contended that for these reasons the proviso to
Section 147 of the said Act is not triggered and, therefore, the impugned
notice dated 03.02.2006, having been issued beyond the period of four
years from the end of the relevant assessment year, is clearly time barred
and, therefore, ought to be quashed as also all proceedings pursuant
thereto.
6. We shall now set out the sequence of events. On 27.11.1998, the
petitioner filed its income tax return with the respondent No.1 for the
assessment year 1998-99. In the assessment order pertaining to the year
1998-99, the entire manner of functioning of the gas turbine unit and the
steam turbine unit at the four different projects of the petitioner at Anta,
Auraiya, Kawas and Dadri were discussed. The assessee had been asked
to explain as to how the fuel cost in the steam unit was shown as zero by
the petitioner. By a letter dated 10.01.2001, the petitioner replied as
under:-
"CONSUMPTION OF FUEL IN GAS POWER STATION
NTPC has set up Gas Power Station at Anta, Auraiya,
Kawas, Dadri, Jhanor Gandhar and Faridabad as combined
cycle gas power stations. These stations have number of gas
turbines, which independently generate power, by separately
feeding fuel in the form of natural gas/HSD or Naptha. The
natural gas after mixing with the air is burnt in the gas
combustion chamber to produce gases at a very high
temperature. These gases are used to run gas turbines for
generation of electricity. The Gas Turbine exhaust hot air gases,
which otherwise have no commercial value, are then released
into atmosphere. With the advancement in technology the waste
heat recovery boilers have been invented to utilize such hot
exhaust gases.
The exhaust hot gases from gas turbine are routed
through the waste heat recovery boilers to utilize it in heating
water and producing steam. The steam produced in waste heat
recovery boilers is then run to generate electricity in the steam
turbine attached separately with such boilers. The steam turbine
can only be run from hot gases released from the gas turbine. In
case of any failure of the steam turbine the hot gases being
released after generation of power in gas turbine has to be
discharged in the atmosphere since it has no other commercial
value. All gas turbine and steam turbines separately generate
electricity and have separate control system, separate turbines,
separate gas combustion chambers for gas turbines and boiler
for steam turbine for generation.
As explained above the steam turbine does not consume
any fuel except waste hot gases of gas turbine. In view, thereof,
no fuel cost has been indicated in steam turbines."
Thereafter, the petitioner furnished another letter dated 27.02.2001
indicating the working of the steam turbine at the gas power station. The
said working was described as under:-
"WORKING OF STEAM TURBINE AT GAS POWER STATION
NTPC has set up Gas Power Station at Anta, Auraiya,
Kawas, Dadri, Jhanor Gandhar and Faridabad. These power
station have two distinct types of prime movers gas Turbines
and Steam Turbines. The fuel (Natural Gas/KSD/Naptha) is
burnt in the combustion chamber of Gas Turbine and the
product of combustion (hot gases) is expanded in Gas Turbine.
The mechanical power thus developed drives an electric
generator for generating electricity.
Hot gases are exhausted after their expansion in the gas
turbines. As the exhausted gases are no longer required they are
known as waste hot gases and are let out in the atmosphere.
These waste hot gases do not have any combustion properties.
With the availability of technology, steam turbines are installed
at a massive cost, which is higher than the cost of the normal
gas turbine. These waste hot gases are routed through the waste
heat recovery boilers for generation of power. These waste
exhaust hot gases from gas turbines can also be let out to the
atmosphere directly through a by pass stack. If waste hot gases
are exhausted directly to the atmosphere the residual heat
contained in it is totally lost. However, when it is passed
through a Waste Heat Recovery Boiler, it is possible to partly
reclaim the residual heat for generation of power.
No fuel is required to be used for generation of power by
the waste heat recovery boiler (WHRB). In other words, the
steam turbine uses only the waste exhausted heat of such gases
in WHRB for generation of power.
You have desired us to furnish quantity and cost of
exhausted hot gases used in waste heat recovery boiler. On this
point we wish to submit that it is not possible to work out actual
quantity of exhaust hot gases consumed in WHRB. Depending
on grid conditions flow of gases in the waste heat recovery
boiler varies from time to time on continuous basis. At times on
account of technical reasons the gas station is run in an open
cycle and therefore waste hot gases are being discharged into
atmosphere.
In view of above the flow of waste hot gases in waste heat
recovery boilers is neither practicable nor being measured on
actual basis. We reiterate that since no fuel is being consumed in
waste heat recovery boiler there is no fuel cost that can be
allocated to generation of power by steam turbine.
It may be mentioned here that the waste hot gas is not a
commercial commodity and is not brought to the market for sale
and purchase. It is not capable to being transported to a distant
place because it would lose it potential heat. Moreover, because
of huge requirement of compressor power for transportation and
capital cost of equipment like compressor, piping, etc., it is
uneconomical to transport the gases even to a nearby location as
these waste hot gas is of very low pressure and density.
In view of the above, it is submitted that waste hot gases
are not marketable nor are being sold or bought in the market.
They have not market value at all."
7. From the above, it is clear that the petitioner had made it known to
the respondent No.1 that the gas turbine exhausts hot air gases, which
otherwise have no commercial value and would normally be released into
the atmosphere. However, with the advancement of technology, waste
heat recovery boilers have been invented to utilize such hot exhaust gases,
which, in turn, run the steam turbines to generate additional electricity. It
has been clearly pointed out by the petitioner that the power stations of the
petitioner have two distinct types of prime movers, gas turbines and steam
turbines. The fuel which could be naptha, natual gas or HSD is burnt in
the combustion chamber of the gas turbine and the product of combustion
- hot gases, generates mechanical power which drives the electric
generator for generating electricity. These hot gases are exhausted after
their expansion in the gas turbines, as they are no longer required in the
gas turbine unit. However, because of the technology of waste heat
recovery boilers, the exhaust gases from the gas turbine unit are utilized
by the steam turbine unit for further generation of electricity. In this
manner, through the use of the waste heat recovery boiler, it is possible to
partly reclaim the residual heat for generation of additional power. The
steam turbine uses only the waste exhaust heat of such gases generated in
the gas turbine unit through the technology of waste heat recovery boiler.
One of the contentions of the petitioner was that the fuel cost of the steam
turbine unit was zero. We shall deal with this aspect of the matter
subsequently. For the present, it is clear that the waste hot gases produced
in the gas turbine unit in the course of generating electricity are re-utilized
through the waste heat recovery boiler for driving the steam turbine
which, in turn, generates additional electricity. The entire process of
generation of electricity was clearly set out by the petitioner before the
respondent No.1 in respect of the assessment year 1998-99.
8. We may also point out that in the course of finalizing the
assessment for the assessment year 1998-99, the respondent No.1 wrote a
letter to the petitioner to clarify, inter alia, the following:-
"1. Income-tax recoverable from customers - On page 157 of
the Return of Income, it is stated (point no. 13) that as per
Tariff Notification issued by the Govt, of India. The Incidence
of Income tax on the Income from generation of electricity is
recoverable from customers. For the A.Y. 1998-99, this amount
is Rs. 86081 lacs. This has not been taken as part of income or as
part of sales of electricity. Why?"
The said letter was replied to by the petitioner on 05.03.2001, wherein
they enclosed a detailed note regarding the impact of income tax liability
of NTPC with regard to generation of income.
9. On 29.11.2000, the petitioner filed its original return for the
assessment year 2000-01. We may point out that being aggrieved by the
assessment order in respect of the assessment year 1998-99 dated
22.03.2001, the petitioner preferred an appeal being Appeal No. 2/2001-
02 before the Commissioner of Income Tax (Appeals) sometime in April,
2001. During the pendency of the appeal for the assessment year 1998-
99, the assessment in respect of the assessment year 2000-01 was
completed under Section 143(3) on 27.02.2002, whereby the respondent
No.1 followed the orders in respect of the assessment year 1998-99 and
1999-2000 and the deduction under Section 80IA was re-worked by
taking a part of the fuel cost against the profits of the steam undertaking.
The respondent No.1 also noted that the income tax liability on generation
had to be grossed up on account of the State Electricity Boards' liability to
bear the tax.
10. On 28.02.202, the Commissioner of Income Tax dismissed the
appeal in respect of the assessment year 1998-99. Being aggrieved by the
order passed by the Commissioner of Income Tax (Appeals) in respect of
the assessment year 1998-99, the petitioner preferred an appeal before the
Income Tax Appellate Tribunal (ITAT) being ITA 1377/Del/2002,
sometime in April, 2002. A similar appeal was also filed by the petitioner
before the ITAT in respect of the assessment year 1999-2000 being ITA
No. 2188/Del/2002. We may also point out that by virtue of the minutes
of meeting held on 13.09.2002, the Committee on Disputes had permitted
the petitioner to pursue the appeals before the Tribunal. On 26.05.2004,
the Income Tax Appellate Tribunal decided the appeals in favour of the
petitioner and held that there was no basis to apportion the cost of fuel to
the steam turbine undertakings. In the said order, the ITAT noted that it
was the case of the Assessing Officer that the profits of each unit had to
be determined independently as if such units were the only source of
income of the assessee/ petitioner. The Tribunal observed that there was
no dispute to such a submission and that, according to it, profits of the gas
unit as well as the steam unit must be determined independently as the
sole source of income of the assessee and consequently, the expenditure
incurred for the generation of electricity by the gas unit cannot be shifted
to any other unit, even by the logic of the Assessing Officer. The Tribunal
further held that for similar reasons, profit of the steam unit had to be
determined independently on the basis of the expenditure incurred by such
unit. Since the steam unit had not incurred any expenditure for acquiring
the hot gas, the question of reducing the profits of such unit by any
notional figure did not arise. Consequently, the Tribunal accepted the
pleas of the petitioner and rejected those of the revenue.
11. We are not so much concerned about the merits of the decision but
with the fact that the entire process of production of electricity by both the
gas turbine and the steam turbine were examined threadbare at all stages -
before the Assessing Officer, The Commissioner of Income Tax (Appeals)
and the Income Tax Appellate Tribunal. The petitioner had clearly set out
and explained the method of electricity generation by both the units and it
is the Tribunal which held that it should not be regarded as an integrated
unit but as two separate and independent units. This was also the stand
taken by the Assessing Officer with regard to the nature of the two units
being independent and not integrated.
12. Thereafter, on 23.09.2004, the respondent No.1 forwarded a letter
to the Commissioner of Income Tax (Appeals) along with a copy of the
purported inspection report which had been allegedly carried out on
02.09.2004 and to consider the same in the pending appeals of the
petitioner for the assessment years 2000-01, 2001-02, 2002-03 and 2003-
04. In this inspection report, it has been stated that the contention of the
assessee (NTPC), that it has two separate units for generating electricity,
cannot be accepted to be correct as the waste heat utilization plant is
basically a dependent unit of the first plant, that is, the gas turbine plant
and is completely dependent on its working. As per the report, "by no
stretch of imagination, can it be inferred that these are two different units
as the second unit i.e. the waste heat utilization plant is totally dependent
on the first unit." It was further stated in the said report that the second
plant cannot be said to be an identifiable undertaking separate and distinct
from the existing business. The report, therefore, concluded by noting
that it would not be correct to say that the assessee has two different units
for generation of electricity and, therefore, the assessee is not right in
claiming deduction under Section 80IA on two different profits by
showing two different P & L Accounts of these units.
13. The petitioner sent a response on 27.04.2005 to the inspection
report and stated that there are no fresh facts in the report and that, in any
event, the ITAT's order was applicable. The petitioner also submitted that
mere dependence of one unit on the other did not mean that the steam
undertaking was not an industrial undertaking for the purpose of Section
80IA of the said Act.
14. In the meanwhile, on 20.10.2004, the respondent No.1 applied to
the Committee on Disputes for permission to file an appeal from the
Tribunal's said order to this Court under Section 260A of the said Act.
During the pendency of the application for permission to file an appeal,
the respondent No.1 filed an appeal before this Court being
ITA 756/2004. However, by an order dated 03.12.2004, this Court
disposed of that appeal on the ground that since the High Powered
Committee on Disputes had not granted permission till then, this Court
was not inclined to entertain the petition at that stage. This Court,
however, directed that it would be open to the revenue to apply for re-
filing of the appeal after the clearance is given by the High Powered
Committee in favour of the revenue. The clearance was not given
inasmuch as, on 08.06.2005, the Committee on Disputes rejected the
application of the revenue. The relevant portion of the minutes of the
meeting pertaining to the petitioner are as under:-
"Meeting of the Committee on Disputes was held at 1030 hours on
08.05.2005 in the Committee Room, Cabinet Secretariat,
Rashtrapati Bhavan, New Delhi. The items considered and the
minutes thereon are as under:-
a) Item no. a) Appellant Issue (s) Involved a)Appl. Ref. No. Appln against a) Quantum
b)Case b) Respondent b) Date a) auth. Whose Involved
status c) appeal in order is disputed b) period
b) order no. Involved
c) order date
1 Central Board of Assessee has not UO Note No. ITAT ITA No. Amt -
NG Direct Taxes debited the fuel cost 279A/CID/107/ 1377&2188/Del 54575.93
National Thermal utilized for generation 2004 of 2002
Power Corporation of power in 16 units of 13.12.2004 26.05.2004 1998-2000
Limited various projects. High Court
Therefore, the AO
calculated the fuel cost
involved & debited it to
the P&L account and
reduced u/s 801 &
801A for the A.Y.
1998-99 and 1999-
The Committee heard the parties in detail w.r.t. the orders of the
CIT (A), agenda note submitted by CBDT and the orders dated
26.05.2004 of the Delhi Bench of IT AT. The Committee noted
that the contention of the D/o revenue is that the assessee has not
debited the fuel cost utilized for generation of power in the units under
reference and further that AO has appropriately calculated the fuel cost
involved and debited it to the P&L A/c and reduced the deduction u/s 801
and 80-1 A. The Committee expressed the view that the ITAT has very
appropriately observed that if the assessee had not set up the steam units
in their projects, such hot gas would have to be exposed to the open
atmosphere and also that there is no evidence that such hot gas can be
sold in the open market. Advanced technological innovations have
prevented such hot gas going to waste, which can be utilized for
generation of electricity. Since there is no evidence of any market for
sale of such waste hot gas, the Committee did not find any merit in the
contentions of the CBDT. The Committee accordingly decided not to
accept the request of CBDT for giving clearance for filing an appeal in
High Court against the orders of the ITAT."
15. From the above extract, it is apparent that the Committee on
Disputes had agreed with the view taken by the Tribunal that if the
petitioner had not setup the steam units in their projects, such hot gases
would have to be released to the open atmosphere and secondly that there
was no evidence that the hot gases could be sold in the open market.
Since there was no evidence of any market for the sale of such hot gases,
the Committee on Disputes did not find any merit in the contentions of the
revenue. It is on this basis that the permission to file an appeal was
rejected and clearance was not given. The matter, therefore, rested there.
16. It is then that on 03.02.2006, the impugned notice was issued to the
petitioner accompanied by the purported reasons for issuing the same.
17. The petitioner objected to the impugned notice as also the reasons
by virtue of his letter dated 12.06.2006. The objections were rejected by
the respondent No.1 by an order dated 16.06.2006. Thereafter, inter alia,
the present writ petition was filed by the petitioner, whereon, this Court,
on 18.09.2006, issued notice to the respondents and directed that till
further orders, the assessment order be not passed. The writ petition was
ultimately admitted for hearing on 17.05.2007 when Rule DB was issued
and it was directed that no final order shall be passed by the Assessing
Officer till the disposal of the writ petition.
18. The learned counsel for the petitioner submitted that both the
reasons for re-opening the assessment in respect of the assessment year
2000-01 are non-existent. First of all, we shall record his submissions
with regard to the first reason. The learned counsel for the petitioner
submitted that the petitioner had setup gas and steam undertakings from
01.08.1990 onwards. In the assessment proceedings for the assessment
year 1998-99, which we have dealt with in detail above, the Assessing
Officer had, after a detailed discussion, granted deduction under Section
80IA in respect of the separate profits of the gas and steam undertakings,
though on the basis that they were integrated, he adjusted the quantum of
deduction. It was further submitted that this was also followed by the
Assessing Officer in respect of the assessment year 1999-2000 and the
assessment year 2000-01. The Tribunal reversed the findings of the
Assessing Officer in respect of the assessment years 1998-99 and 1999-
2000 and this, according to the learned counsel for the petitioner, had
become final as the Committee on Disputes did not permit the department
to file an appeal against the order passed by the Tribunal. Insofar as the
assessment year 2000-01 is concerned, the Commissioner of Income Tax
(Appeals) followed the Tribunal's order and reversed the findings of the
Assessing Officer. According to the learned counsel for the petitioner this
has also become final as the department had not filed any appeal.
19. It is contended that the Assessing Officer is now seeking to re-open
the assessment for the assessment year 2000-01 on the ground that the
steam undertaking is not a separate undertaking. But, according to the
learned counsel, being aware of the existence of the two undertakings, the
Assessing Officer had drawn the inference in the course of the regular
assessment that the claim for deduction from the profits of the steam
undertakings should be reduced on account of his understanding that the
fuel cost could not have been zero. However, the Assessing Officer now
seeks to draw the inference that the two undertakings should be treated as
one. It was contended that this clearly constituted an entire shift in the
stand of the Assessing Officer from the stand taken by him in the course
of the original assessment proceedings.
20. The learned counsel for the petitioner submitted that, in any event,
the impugned notice was bad in law as there was no failure on the part of
the petitioner to disclose fully and truly all material facts. It was
contended that the reason for re-opening, as mentioned in the purported
reasons, is that the combined cycle gas power stations are integrated
undertakings and the steam turbine unit is completely dependent on the
gas turbine unit. It was contended that these were the very same findings
given by the Assessing Officer in the course of the regular assessment
proceedings for the assessment year 1998-99 and which were followed in
respect of the assessment year 2000-01. This was the very basis for
curtailing the Section 80IA deduction eligible on the steam undertaking.
It was also contended that the so-called reasons places reliance on the said
inspection report but the Commissioner of Income Tax (Appeals), in
respect of the assessment year 2000-01, held that there is nothing new in
the inspection report which differentiates the case from the assessment
years 1998-99 and 1999-2000. Paragraph 3.11 of the order dated
04.05.2006 passed by the Commissioner of Income Tax (Appeals) in
respect of the assessment year 2000-01 is as under:-
"3.11 I have gone through the facts of the case, the
submission made by the appellant and the decision of The ITAT,
Delhi Bench in the case of the appellant for A.Y. 1998-99 &
1999-2000. It is an admitted fact that the facts of the case under
appeal are same as for A.Y. 1998-99 & 1999-2000 for which ITAT
has decided the issue. I have also considered the decision of Delhi
High Court of not entertaining the appeal filed by the Income Tax
Department, as the approval was not granted by the Committee on
disputes. The Inspection Report of Addl CIT, Range 13, New Delhi
dated 23rd September 2004 and the reply filed by the appellant dated
27th April 2005 were also considered. Para 3.7 on page 9 of this
order details the contents of a brief provided by the AO given as
annexure 'A' to letter F.No.CIT/Delhi-v/2004-05/646 dated
20.10.2004. This letter was addressed to the COD in order to obtain
it's approval to file an appeal before the high court. This brief has
discussed all the points that were mentioned in the inspections
report mentioned above. However the COD did not accord approval
to the AO for filing an appeal against the order of the ITAT. I
have found that the facts of the case as mentioned in the
inspection report were also before the COD when they withheld the
approval for further appeal. There is nothing new which
differentiates the facts of the case as such."
21. Thus, according to the learned counsel for the petitioner, the
department had accepted the finding of the Commissioner of Income Tax
(Appeals) as it had not filed any appeal before the Tribunal. Having done
so, there was no occasion for the department to have issued the impugned
notice dated 03.02.2006.
22. The learned counsel for the petitioner referred to the decisions of
this Court in the case of Sarthak Securities Co. Pvt. Ltd. v. Income Tax
Officer : [2010] 329 ITR 110 (Delhi) and Commissioner of Income Tax
v. Simbhaoli Sugar Mills Limited: [2011] 333 ITR 470 (Delhi) in support
of his contention that the recorded reasons must state what material the
assessee had failed to disclose and if there was no failure to disclose the
material facts, re-opening was not justified at all.
23. The learned counsel for the petitioner also submitted that this was a
case of change of opinion which was also not a permissible ground for re-
opening an assessment already completed under Section 143(3) of the said
Act. It was contended that in the course of the regular assessment
proceedings for the assessment years 1998-99 to 2000-01, the Assessing
Officer had taken the view that the undertakings, though separate, were
integrated and that the expenses should be apportioned to the steam
undertaking so as to reduce the Section 80IA deduction. In contrast, it has
now been suggested by the Assessing Officer on the very same basis that
the undertakings are integrated to allow deduction under Section 80IA by
clubbing the profits of steam and gas undertakings. This was clearly,
according to the learned counsel for the petitioner, a case of change of
opinion which is impermissible in law. He placed reliance on the
following decisions:-
(i) CIT v. Kelvinator of India Ltd. : [2002] 256 ITR 1 (Del)
(FB);
(ii) CIT v. Kelvinator of India Limited : [2010] 320 ITR 561
(SC); and
(iii) Ritu Investments Private Limited v. DCIT: (2011) 51 DTR
(Del) 162
24. The next point urged by the learned counsel for the petitioner was
that the Section 80IA deduction cannot be withdrawn mid-term inasmuch
as it is only the first year of the deduction which is relevant. Once it is
allowed in the first year, the subsequent years cannot be interfered with.
As such, there is no escapement of income from assessment. It was
contended by the learned counsel for the petitioner that the steam
undertaking is setup from 01.08.1990 onwards and in the earlier years,
deduction for the steam undertaking had been allowed to the assessee and,
therefore, could not be withdrawn for the subsequent years. Reliance was
placed on the following decisions:-
(i) CIT v. Modi Industries Ltd: [2010] 48 DTR 364 (Del);
(ii) Saurashtra Cement & Chemical Industries Ltd. v. CIT:
[1980] 123 ITR 669 (Guj);
(iii) CIT v. Paul Brothers: [1995] 216 ITR 548 (Bom); and
(iv) CIT v. Bhilai Engineering Corporation Pvt. Ltd: [1982] 133
ITR 687 (M.P)
25. Lastly, it was contended by the learned counsel for the petitioner
that the sanction required for issuance of a notice under Section 147/148
of the said Act after the period of four years was granted by the
Commissioner of Income Tax in a mechanical fashion and without
application of mind. The sanction was, according to the learned counsel,
given in a proforma with the words "I am satisfied". It was contended
that this was not sufficient to show application of mind on the part of the
Commissioner of Income Tax. Reliance was placed on The Central India
Electric Supply Co. Ltd v. ITO: [2011] 333 ITR 237 (Del) and
Chhugamal Rajpal. v. S. P. Chaliha and Ors. (SC): [1971] 79 ITR 603
(SC).
26. Mrs. Prem Lata Bansal, the learned senior counsel appearing on
behalf of the revenue, submitted that this was a case in which the proviso
to Section 147 was attracted. She submitted that insofar as the assessment
order 1998-99 is concerned, the Assessing Officer had considered the
question of the two units, namely, the gas turbine unit and the steam
turbine unit not from the standpoint of whether they were integrated or
they were separate units, but only in the context of the fuel cost argument.
The learned senior counsel submitted that the examination was not
whether the units by themselves or as a whole were entitled to deduction
under Section 80IA or not but from the angle of what would be the fuel
cost of the steam unit, insofar as the hot waste gases were concerned. It
was only the question of allocation of fuel cost which was considered by
the Assessing Officer and the question of units being separate or
integrated was not specifically examined by the Assessing Officer.
Therefore, there is no question of there being any change of opinion. She
also submitted that the impugned notice dated 03.02.2006 was
necessitated because of the inspection report of September, 2004.
According to her, the said inspection report brought out fresh factual
material to indicate that the gas turbine unit and the steam turbine unit
were an integrated whole industrial undertaking and were not separate
industrial undertakings or units. According to her, the inspection report
threw light on the question as to whether the steam unit was merely an
expansion of the gas unit or was an altogether separate unit. According to
her, the report clearly indicated that the steam unit was entirely dependent
on the gas unit and was, therefore, integrated with the gas unit and did not
have an independent existence. According to her, this fact was not known
to the Assessing Officer when he concluded the assessments for the
assessment year 1998-99 or even for the assessment year 2000-01. She
submitted that this was also not disclosed by the petitioner and, therefore,
there was failure on the part of the petitioner to fully and truly disclose the
material facts. As such, one of the conditions of the proviso to Section
147 got triggered. She submitted that the Commissioner of Income Tax
(Appeals)' order in respect of the relevant assessment year as also the
Income Tax Appellate Tribunal's orders in respect of the assessment years
1998-99 and 1999-2000 were before the inspection of September, 2004.
Moreover, insofar as the opinion of the Committee on Disputes is
concerned, the issue before it was only with regard to the allocation of
fuel cost between the two units. She submitted that the issue whether the
two units were separate or integrated was not before the Committee on
Disputes and, therefore, it would be wrong to say that the latter issue had
attained finality. According to her, the only issue that had attained finality
was with regard to the allocation of fuel cost and not the question of
whether the two units were separate or integrated. She also referred to the
assessment order as well as the order of the Commissioner of Income Tax
(Appeals) for the assessment year 2004-05, copies of which were handed
over to us in the course of arguments, to submit that in the earlier round
the issue was with regard to fuel cost, whereas in the assessment year
2004-05, the issue was whether the two units were independent or one
integrated unit. She also referred to the Committee on Disputes' opinion
pertaining to the assessment year 2004-05 which granted permission for
appeal to the Income Tax Appellate Tribunal. Therefore, according to
her, it was an entirely new issue which had not been examined in the
earlier round of assessment and, therefore, there was no question of
change of opinion. She also submitted that the fresh examination was
necessitated because of the new facts which were revealed in the
inspection report of September, 2004 which ought to have been brought to
the notice and disclosed by the petitioner at the time of the original
assessment but the petitioner had failed to disclose the same.
Consequently, she submitted that the ingredients of the proviso to Section
147 of the said Act were clearly satisfied and, therefore, the impugned
notice dated 03.02.2006 was not without jurisdiction and was also within
time.
27. She also submitted that the other condition of income having
escaped assessment has also been satisfied in the present case and she
placed reliance on Explanation 2(c)(i), (iii) and (iv). She also submitted
that Explanation 1 to Section 147 also made it clear that mere production
of books of accounts etc. did not necessarily mean that there was
disclosure on the part of the assessee. She reiterated that it was only on
inspection that it was found that the steam unit and the gas unit were an
integrated whole.
28. She also submitted that at the time of issuance of a notice under
Section 147/148 of the said Act, only a prima facie view has to be taken
and it is obviously not a final view. The final view would only emerge
when the assessment order is passed. Therefore, she submitted that there
was no cause for any interference with the notice under Section 148 which
is impugned in the present petition. She referred to Raymond Woollen
Mills Ltd v. ITO & Ors.: [1999] 236 ITR 34 (SC), wherein it was
observed that it is only to be seen whether there was, prima facie, some
material on the basis of which the department could re-open a case. The
Supreme Court further observed that sufficiency or correctness of the
material is not a thing to be considered at that stage. She then referred to
Ess Ess Kay Engineering Co. P. Ltd v. Commissioner of Income Tax:
(2001) 247 ITR 818 (SC), wherein the Supreme Court observed that the
Income Tax Officer is not precluded from re-opening of the assessment of
an earlier year on the basis of his findings of fact made in respect of fresh
materials in the course of assessment of the next assessment year. The
learned senior counsel then referred to Diwakar Engineers Ltd v. Income
Tax Officer: [2010] 329 ITR 28 (Del), wherein it was observed that at the
stage of issuing notice under Section 148 it was not necessary that the
materials must be extensive and detailed. The court also felt that one of
the methods by which materials could come into the possession of the
Assessing Officer was by the assessment proceedings in subsequent
assessment years. A reference was also made to Phool Chand Bajrang
Lal & Anr. v. ITO & Anr. : [1993] 203 ITR 456 (SC), wherein the
Supreme Court observed as under:-
"Acquiring fresh information, specific in nature and reliable in
character, relating to the concluded assessment which goes to
expose the falsity of the statement made by the assessee at the
time of original assessment is different from drawing a fresh
inference from the some facts and material which was available
which the Income Tax Officer at the time of original
assessment proceedings. The two situations are distinct and
different. Thus, where the transaction itself on the basis of
subsequent information, is found to be a bogus transaction, the
mere disclosure of that transaction at the time of original
assessment proceedings, cannot be said to be disclosure of the
"true" and "full" facts in the case and the Income Tax Officer
would have the jurisdiction to reopen the concluded assessment
in such a case."
29. Mrs. Bansal also placed reliance on Rakesh Agarwal v. ACIT:
[1996] 221 ITR 492 (Del) to submit that embedded material may not be
considered as disclosure. In the said decision, this Court had come to the
conclusion that mere filing of documents in that case cannot be deemed to
be a disclosure of all the material facts particularly on the ground that
what might have been discovered by the Assessing Officer cannot be
construed as a disclosure in terms of Section 147 of the said Act.
Mrs Bansal also referred to a decision of this Court in the case of
Consolidated Photo and Finvest Ltd v. ACIT: [2006] 281 ITR 394 (Del),
wherein this Court observed as under:-
"The principle that a mere change of opinion cannot be a basis
for reopening computed assessments would be applicable only
to situations where the assessing officer has applied his mind
and taken a conscious decision on a particular matter in issue. It
will have no application where the order of assessment does not
address itself to the aspect which is the basis for reopening of
the assessment, as is the position in the present case. It is in that
view inconsequential whether or not the material necessary for
taking a decision was available to the assessing officer either
generally or in the form of a reply to the questionnaire served
upon the assessed. What is important is whether the assessing
officer had based on the material available to him taken a view.
If he had not done so, the proposed reopening cannot be
assailed on the ground that the same is based only on a change
of opinion."
The decision in Honda Siel Power Products Ltd v. DCIT: [2012] 340
ITR 53 was also referred to by Mrs Bansal to explain what is the meaning
of the expression "disclose fully and truly all material facts" appearing in
Section 147 of the said Act. In that decision, this Court observed as
under:-
"12. The law postulates a duty on every assessee to disclose
fully and truly all material facts for its assessment. The
disclosure must be full and true. Material facts are those facts
which if taken into accounts they would have an adverse affect
on assessee by the higher assessment of income than the one
actually made. They should be proximate and not have any
remote bearing on the assessment. Omission to disclose may be
deliberate or inadvertent. This is not relevant, provided there is
omission or failure on the part of assessee. The latter confers
jurisdiction to reopen assessment."
30. Mrs Bansal submitted that the question of change of opinion would
arise only when the Assessing Officer had formed an opinion and was
now trying to alter that opinion. She placed reliance on Dalmia Cement
Pvt. Ltd v. CIT: WP(C) 6205/2010 decided on 26.09.2011 by a Division
Bench of the Delhi High Court. The learned counsel also placed reliance
on the decision in Indian Hume Pipe Co. Ltd v. ACIT: WP No.
1017/2011 decided on 08.11.2011 by a Division Bench of the Bombay
High Court. The Bombay High Court observed that the basic principle
laid down by the Supreme Court was whether the assessee had disclosed
the primary facts which were necessary for assessment, fully and truly.
The court observed that if the assessee had done so, the Assessing Officer
was not entitled to a mere change of opinion to commence proceedings for
re-assessment. However, the court also observed that mere production of
account books or other evidence from which material evidence could with
due diligence have been discovered by the Assessing Officer does not
necessarily amount to disclosure within the meaning of Proviso to Section
147.
31. In rejoinder, the learned counsel for the petitioner submitted that in
the factual backdrop of the present case, there was nothing in the
decisions which were cited by the learned counsel for the revenue which
would militate against the case of the petitioner. It was submitted that in
the present case the facts were the same and it was only that another
inference was being drawn on the basis of the same facts. Such a situation
clearly meant that there was only a change of opinion. Even the so-called
inspection report did not reveal anything new. The facts were the same.
It was only a new way to look at the very same facts.
32. It was submitted by the learned counsel for the petitioner that each
case has to be judged on its own facts. He submitted that even in the
recorded reasons, there is no indication as to what was the failure on the
part of the petitioner and what did the petitioner fail to disclose. Unless
and until it is made clear that there was a failure and what was that failure,
assessment cannot be re-opened with the aid of Section 147/148 of the
said Act. It was contended that the Assessing Officer was fully aware of
the entire facts and methods of production and the manner in which the
two units operated. He drew one set of inferences at the time of the
original assessment and is now seeking to draw another set of inferences
by issuing the impugned notice. This is nothing but a mere change of
opinion based on the very same facts. And, that is impermissible in law.
33. It was contended that the learned counsel for the revenue had cited
some decisions which have been noticed above, wherein facts discovered
in a subsequent assessment year could be the basis in re-opening of an
assessment completed in respect of an earlier assessment year. But,
according to the learned counsel for the petitioner, those decisions are not
at all relevant in the present factual matrix. This is so because the
assessment order in respect of the assessment year 2004-05 was issued on
27.02.2006, whereas the impugned notice had already been issued on
03.02.2006. Therefore, the assessment order for the assessment year
2004-05 could not have been the basis for issuing the notice and that is
why, according to the learned counsel for the petitioner, the assessment
order for the assessment year 2004-05 is not even mentioned in the
recorded reasons. The permission granted by the Committee on Disputes
in respect of the assessment year 2004-05 is, therefore, of no consequence.
The learned counsel for the petitioner submitted that the jurisdictional
question has to be decided and that mere escapement is not sufficient.
The case of Diwakar Engineers Ltd (supra) was distinguished by stating
that in that case, details had not been provided by the assessee despite
enquiry. Therefore, it was not a case of full and true disclosure. Once
again, the learned counsel reiterated that each case has to be decided on its
own facts. With regard to Phool Chand Bajrang Lal (supra), the learned
counsel submitted that the case was entirely distinguishable inasmuch as
in that case there was a cash loan which later turned out to be false and,
therefore, re-opening of the assessment was sustained. He submitted that
the facts are entirely different in the present case. In Raymond Woollen
Mills Ltd (supra) also, there was a clear finding of failure to disclose,
which is not the case in the present petition. As regards Consolidated
Photo and Finvest Ltd (supra), the learned counsel for the petitioner
submitted that that case was also distinguishable on its own facts. In that
case certain expenses had been claimed. Subsequently, it was found that
they were personal expenses and ought to have been disallowed. The
facts in the present case are entirely different. As regards Honda Siel
Power Products Ltd (supra), the learned counsel for the petitioner
submitted that in that case the petitioner had accepted and admitted that he
did not give the details in respect of the tax free income in the context of
Section 14A of the said Act. Therefore, that case is also decided on an
entirely different set of facts.
34. As far as the principles of law set out in the decisions cited by the
learned counsel for the revenue are concerned, it was submitted by the
learned counsel for the petitioner, no exception can be taken in respect of
that. However, what must be seen is whether the factual matrix of the
case fits in within the principles of law indicated therein. He submitted
that the impugned notice was clearly time barred inasmuch as the pre-
conditions for invoking the proviso to Section 147 had not been satisfied.
In the present case, there was no failure on the part of the petitioner to
fully and truly disclose all material facts and there was a clear-cut change
of opinion insofar as the revenue was concerned. Even the escapement of
income from assessment has not been indicated. Thus, according to the
learned counsel for the petitioner, the impugned notice dated 03.02.2006,
insofar as the first reason indicated therein is concerned, is liable to be set
aside.
35. Having considered the factual background and the arguments
advanced by the learned counsel for the parties as also the decisions
referred by them in great detail, we are of the view that the plea advanced
by the learned counsel for the petitioner requires acceptance. This is so
because it is an admitted position that the impugned notice dated
03.02.2006 was issued beyond the period of four years from the end of the
relevant assessment year i.e., from the end of 31.03.2001. In order that
such a notice could be sustained in law, the ingredients and pre-conditions
set out in the proviso to Section 147 have to be satisfied. Section 147, as
it stood at the time of issuance of the impugned notice, is as under:-
"147. If the Assessing Officer has reason to believe that any
income chargeable to tax has escaped assessment for any
assessment year, he may, subject to the provisions of sections
148 to 153, assess or reassess such income and also any other
income chargeable to tax which has escaped assessment and
which comes to his notice subsequently in the course of the
proceedings under this section, or recompute the loss or the
depreciation allowance or any other allowance, as the case may
be, for the assessment year concerned (hereafter in this section
and in sections 148 to 153 referred to as the relevant assessment
year) :
Provided that where an assessment under sub-section (3) of
section 143 or this section has been made for the relevant
assessment year, no action shall be taken under this section
after the expiry of four years from the end of the relevant
assessment year, unless any income chargeable to tax has
escaped assessment for such assessment year by reason of the
failure on the part of the assessee to make a return under section
139 or in response to a notice issued under sub-section (1) of
section 142 or section 148 or to disclose fully and truly all
material facts necessary for his assessment, for that assessment
year.
Explanation 1.--Production before the Assessing Officer of
account books or other evidence from which material evidence
could with due diligence have been discovered by the Assessing
Officer will not necessarily amount to disclosure within the
meaning of the foregoing proviso.
Explanation 2.--For the purposes of this section, the following
shall also be deemed to be cases where income chargeable to
tax has escaped assessment, namely:--
(a) where no return of income has been furnished by the
assessee although his total income or the total income of any
other person in respect of which he is assessable under this Act
during the previous year exceeded the maximum amount which
is not chargeable to income-tax ;
(b) where a return of income has been furnished by the
assessee but no assessment has been made and it is noticed by
the Assessing Officer that the assessee has understated the
income or has claimed excessive loss, deduction, allowance or
relief in the return;
(c) where an assessment has been made, but--
(i) income chargeable to tax has been under-assessed; or
(ii) such income has been assessed at too low a rate; or
(iii) such income has been made the subject of excessive
relief under this Act; or
(iv) excessive loss or depreciation allowance or any other
allowance under this Act has been computed.]"
The proviso is couched in negative terms. It states that where an
assessment, inter alia, under Section 143(3) has been made for the
relevant assessment year "no action shall be taken under this section after
the expiry of four years from the end of the relevant assessment year."
There is, however, an exception and that begins with the words "unless
any income chargeable to tax has escaped assessment for such assessment
year by reason of the failure on the part of the assessee to make a return
under section 139 or in response to a notice issued under sub-section (1)
of section 142 or section 148 or to disclose fully and truly all material
facts necessary for his assessment, for that assessment year." Therefore,
no action under Section 147 can be taken beyond the said period of four
years unless and until the conditions precedent mentioned in the proviso
are satisfied. The first condition is that income chargeable to tax must
have escaped assessment. The second condition is that such escapement
from assessment must be by reason of failure on the part of the assessee
to, inter alia, disclose fully and truly all material facts necessary for his
assessment for that assessment year. If either of these two conditions is
missing, the exception to the bar setup in the proviso, does not get
triggered. The consequence being that the assessment cannot be re-
opened.
36. In the present case, we find that the whole issue is with regard to
the method of production and the manner in which electricity is generated.
The entire process of generation of electricity, both by the gas turbine unit
and the steam turbine unit, has been explained by the petitioner in great
detail in the assessment proceedings for the assessment year 1998-99
which has been taken notice of by the Assessing Officer. He was fully
aware that there is a gas turbine unit which generates electricity and which
has a waste product which is in the form of hot waste gases. It is through
the technology of the waste heat recovery boiler that these hot waste gases
are utilized for driving the steam turbine which, in turn, generates
additional electricity. So both the gas turbine as well as the steam turbine
generate electricity independently. It is another matter that the waste
product of the gas turbine is utilized as the only input for driving the
steam turbine.
37. Although the learned counsel for the revenue was at pains to try to
explain that the focus of the Assessing Officer was on the fuel cost issue
and not on the issue of whether the two units were separate or integrated,
we are not impressed by that argument. This is so because whatever may
have been the focus of the Assessing Officer, the matter has to be looked
at from the standpoint of the assessee/ petitioner. The petitioner had
disclosed fully and truly the entire process of manufacture and generation
of electricity by the gas turbine unit as well as by the steam turbine unit.
It was not as if it was a fact or a figure hidden in some books of accounts
which the Assessing Officer could have, with due diligence, discovered
but had not done so. The Assessing Officer had asked specific queries
with regard to the manner of functioning of the two units and the
petitioner had provided detailed answers. All facts were staring the
Assessing Officer at his face. He could have drawn his own inferences
and, in fact, he did by treating them as separate units. On the very same
facts, he is now trying to draw a different set of inferences which is
nothing but a mere change of opinion. The inspection report of
September, 2004 does not indicate anything new. While considering the
fuel cost argument in the earlier assessment year, when the matter
travelled right up to the Tribunal, the entire factual position was examined
by the Assessing Officer, the Commissioner of Income Tax (Appeals) as
well as by the Tribunal and also by the Committee on Disputes and the
two units were treated as separate units. We have already extracted the
relevant portion of the Tribunal's order which notices the same.
Therefore, in our view, this is not a case where the assessee/ petitioner can
be said to have failed to disclose fully and truly all material facts
necessary for assessment in respect of the assessment year 2000-01.
Thus, this by itself, is sufficient for us to conclude that the exception
carved out in the proviso to Section 147 is not attracted and, therefore,
there is a bar from taking action under Section 147 inasmuch as the period
of four years has expired. The impugned notice dated 03.02.2006 is,
therefore, liable to be quashed on this ground.
38. We now come to the second purported reason for re-opening the
assessment which pertains to taxability of income tax recoverable by the
petitioner from the State Electricity Boards. It is stated in the recorded
reasons that as per tariff notification issued by the Government of India
the incidence of Income Tax on Income from generation of electricity is
recoverable from the customers of NTPC, who are the State Electricity
Boards. According to the recorded reasons, the amount of income tax
recoverable by NTPC from the State Electricity Boards, inter alia for the
assessment year 2000-01, have not been fully reported by NTPC Limited
as revenue receipts and instead major portions of such amounts had been
kept out of the credit side of the Profit & Loss Account. This, according
to the respondent No.1, resulted in the income tax recoverable from the
customers of NTPC escaping assessment due to the reason of the failure
on the part of the assessee to disclose fully and truly all material facts
necessary for its assessment for the assessment year in question.
39. The learned counsel for the petitioner submitted that, first of all, no
income had escaped assessment. It was contended that the petitioner had
paid tax on the generation income by grossing up the rate of tax instead of
grossing up the income. The rate of grossed up tax is 62.60162% as
against the normal rate of 38.50% [35% tax + 10% surcharge]. It was also
contended that there was no failure to disclose material facts inasmuch as
the figures which have been referred to by the respondent No.1 in the
recorded reasons were all taken from the audited accounts and, in any
event, the respondent No.1 has not alleged as to which material fact was
omitted to be disclosed. It was also contended that there was due
application of mind on this issue at the stage of the original assessment
itself. In fact, there was a reference to the assessment order for the
assessment year 2000-01, wherein the Assessing Officer observed as
under:-
"Out of this ` 670,67,20,000/- is non-generation income as
shown in the return. Hence, ` 3163,97,88,398 -
` 670,67,20,000/- i.e. ` 2493,30,68,398/- represents the
generation profit which has to be grossed up to account for
tax on tax on this profit."
40. Thus, the issue of grossing up was also considered by the Assessing
Officer at the time of the original assessment. It was contended that for
all these reasons, there was no occasion for re-opening of the assessment.
On the other hand, the learned counsel for the revenue supported the
recorded reasons and submitted that the manner in which the figures have
been displayed is not correct and that by itself would lead to a wrong
conclusion.
41. Having considered the arguments advanced by the counsel for the
parties, we are of the view that here, too, the submissions of the petitioner
need to be accepted. The learned counsel for the petitioner, in the course
of arguments, submitted the actual figures with regard to the assessee's
method of grossing up the rate of tax and the department's proposed
method of grossing up of income. The same are as under:-
"(Assessee's method - Grossing up of rate of tax (38.50%)
(` in crores)
Generation income as assessed by 2493.31
the AO
Normal rate of tax 38.50%
As the tax has to be borne by the 62.60162%
customer, it has to be "grossed up"
on tax on tax basis
(38.50 x 100/61.50)
Grossed up tax payable by NTPC on 1,560.85
the generation income
The said grossed up tax of `
1,560.85 crores is recoverable from
the customer. (What is shown as
recoverable from the customer in the
balance sheet is a lesser figure of `
1345.50 crores worked out on a
provisional basis at the time of
finalizing the accounts)
Add: Tax on non-generation income 258.20
of ` 670.67 crores at the normal rate
of tax of 38.50%
Total tax payable by NTPC as per 1819.05
the assessment order
(Department's method - Grossing up of income):
(` in crores)
Generation income as assessed by the AO 2493.31
Add: Amount of tax on generation income 1,560.85
recoverable from the customer (the
amount shown as recoverable in the
balance sheet is lesser figure of ` 1345.50
crores worked out on a provisional basis at
the time of finalizing the accounts)
Generation income to be taxed 4054.16
Normal rate of tax 38.50%
Tax payable by NTPC on the generation 1,560.85
income
Add: Tax on non-generation income of 258.20
` 670.67 crores at the normal rate of tax of
38.50%
Total tax payable by NTPC as per the 1819.05"
assessment order
It is clear that by virtue of either method, the total tax payable by NTPC,
as per the assessment order would come to ` 1819.05 crores. Therefore,
this is a clear case where no income has escaped assessment. As such, the
pre-conditions for triggering the exception in the proviso to Section 147
are not satisfied. Thus, on this ground also, the impugned order is liable
to be set aside.
42. No other reasons have been indicated in the recorded reasons. As
such, the writ petition is allowed and the impugned notice dated
03.02.2006 is quashed and so also all proceedings pursuant thereto. The
parties shall bear their own costs.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
JANUARY 10, 2013
SR
