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2. The respondent craves leave to add, amend, alter or delete the said ground of appeal."

3. Rival submissions of both the parties have been heard and record perused. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that all the grounds of appeal raised by Revenue in its appeal is covered by various decisions either in assessees own case or by latest decision of Special Bench in Aditya Birla Nuvo Limited Vs Dy CIT in ITA No. 563/M/2018 dated 18.09.2025. Ground no. 1 to 8 in Revenue's appeal relates to deleting the addition of adjustment on inter-unit transfer of power from captive power plant. The ld. AR of the assessee submits that all these grounds of appeal is covered by the recent decision of third member in Aditya Birla Nuvo Ltd. (supra), wherein all the objections of revenue which has been raised in various grounds of appeal has been considered by Special Bench of Tribunal,copy of decision of third member is placed on record. The ld AR of the assessee submits that all earlier decision on the issue has been considered by ld CIT(A) while allowing relief to the assessee and held that price at which assessee purchased power from distribution license from a Govt. Company (JUBNL in said case) can be applied as a valid CUP for determining Arm's Length Price (ALP) of sale / supply of power by captive power plant to its other ITA Nos. 5142 & 5143/Mum/2024 And CO Nos. 257 & 258 /Mum/2024 M/s. JSW Steel Coated Products Limited unit. The ld. AR of the assessee submits that decision of Special Bench is squarely applicable on the facts of the present case.

33. Keeping in perspective the aforesaid stand taken by the Revenue, it is necessary to look into the position of a power generating company which sells supply to a distribution licensee and that of a CPP under the Indian Electricity Act, 2003. As per section 2(28) of Electricity Act,2003, "generating company" means any company or body corporate or association or body of individuals, which owns or operates or maintains a generating station. Section 2(30) of the Electricity Act defines "generating station" or "station" to mean any station for generating electricity, including any building and plant with step-up transformer, switchgear, switch yard, cables or other appurtenant equipment, if any, used for that purpose and the site thereof; a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is generated by water-power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any sub-station. Whereas, "Captive generating plant" has been defined u/s. 2(8) of the Electricity Act to mean a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any co-operative society or association of persons for generating electricity primarily for use of members of such cooperative society or association. Section 2(17) defines "distribution licensee" to mean a licensee authorised to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply. "Distribution system" has been defined u/s.2(19) ITA Nos. 5142 & 5143/Mum/2024 And CO Nos. 257 & 258 /Mum/2024 M/s. JSW Steel Coated Products Limited of Electricity Act to mean the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers. Section 7 of the Electricity Act provides that any generating company may establish, operate and maintain a generating station without obtaining a licence under this Act if it complies with the technical standards relating to connectivity with the grid referred to in clause (b) of section 73. Whereas, section 8 of Electricity Act provides for Hydro-electric generation which can only be set up with concurrence of the competent authority and must involve capital expenditure exceeding the limit as may be fixed by the Central Government through Notification. Section 9 of the Electricity Act provides that notwithstanding anything contained in the Act, a person may construct, maintain or operate a captive generating plant and dedicated transmission lines. The said provision provides that where the supply of electricity from the captive generating plant is through the grid, it shall be regulated in the same manner as the generating station of a generating company. However, no licence shall be required for supply of electricity generated from a captive generating plant to any licencee or a consumer, subject to the regulations made under sub section (2) of section 40. Further, subsection (2) of section 9 provides that every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use, subject to the availability of adequate transfer facility. Section 10 of Electricity Act prescribes the duties of generating companies other than captive power plants. Whereas, section 11 empowers the appropriate Government to issue direction to generating companies in the matter of generation and supply of electricity. Section 14 empowers the regulatory commission to grant license for transmission of electricity or to distribute electricity or to undertake trading in electricity. Section 42 of the Electricity Act prescribes the duties of distribution licensee and open access. As per the said provision, while it is the duty of a distribution licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in the Act, a captive power generating plant shall have open access only on payment of wheeling charge and surcharge. Sections 61 and 62 of the Electricity Act empowers the Regulatory Commission to determine and prescribe tariff both in case of supply of power by generating company to distribution licensee and in case of a distribution licensee to the consumers. However, the captive power generating units have been kept out of all such control and regulation under the Electricity Act. Section 86 of the Electricity Act empowers the State Commission to determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State.

34. The purpose of dealing in detail with the various provisions under the Electricity Act is to demonstrate that while the power generating companies, who have to sale/supply power to the distribution licensees, are fettered with various ITA Nos. 5142 & 5143/Mum/2024 And CO Nos. 257 & 258 /Mum/2024 M/s. JSW Steel Coated Products Limited rules/regulations/control under the provisions of the Electricity Act, the captive power generation plants have been purposefully kept out of all such control and regulatory measures. In terms with section 9 of the Electricity Act, 2003, the captive power plants have been given the right of open access for carrying electricity from the captive generating plant to the destination for own use, of course, only on payment of wheeling charge. In other words, the provisions under the Electricity Act make it clear that the similarity between a power generating plant and captive power plant is only to the limited extent of generation of power and the similarity ends there. Under the Electricity Act itself captive power generating plant is treated differently than a generating company. That being the position under the Electricity Act, by no stretch of imagination functions performed, assets employed and risk undertaken by a power generating company which sales/supplies power to a distribution licensee for ultimate supply/sale of power to the consumers cannot be equated with a small captive generation plant. Rule 10B(2) prescribes the factors for comparability analysis of either goods or services in relation to an international transaction or SDT with an uncontrolled transaction. The factors which needs to be considered are :

35. If we apply the parameters of Rule 10B(2), it can be seen that setting up of a power generation plant for bulk supply of electricity is capital intensive and requires huge investment. Whereas, the investment made by a captive power generating plant is minuscule in comparison. While the power generating company is subject to all regulatory measures under the Electricity Act, the captive power generating plant has not been put under such restrictions. Thus, in my opinion, a captive power plant cannot be equated with a bulk power generating company, either in functionality or in employment of assets or even on account of risk undertaken, as the power generated by a captive power plant is for own captive consumption, hence, with minimal risk. In such a scenario, what can be considered for comparability, analysis is a transaction with sufficient degree of similarity.