LexA.P. POWER COORDINATION COMMITTEE & ORS. versus MIS. LANCO KONDAPALLI POWER LTD. & ORS.
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[2015] 12 S.C.R. 447 A.P. POWER COORDINATION COMMITTEE & ORS. A v. MIS. LANCO KONDAPALLI POWER LTD. & ORS. (Civil Appeal No. 6036 of 2012) OCTOBER 16, 2015 [VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.] B Electricity Act, 2003 - s. 86(1 )(f), 17 4 - Limitation Act, 1963 - ss. 3, 14, Schedule - Disputes between /icencees c and power generating company- Bill for capacity charges- Claim for reimbursement of minimum alternate Tax (MAT) - Whether the Limitation Act, s. 3 and the Schedule would apply to any action instituted before the Commission uls. 86(1)(f) - Whether the impugned order passed by APTEL D permitting application of principles emerging from s. 14, is against law - Whether the claim for reimbursement of MAT is in contravention of relevant terms and conditions of the Power Purchase Agreement (PPA) - Held: A claim coming before the Commission cannot be entertained or allowed if it E is barred by limitation prescribed for an ordinary suit before the civil court - However, in appropriate case, a specified period may be excluded on account of principle underlying salutary provisions like s. 5 or 14 - Further, such limitation upon the Commission would be only in respect of its judicial F power uls. 86(1 )(f) and not in respect of its other powers or functions which may be administrative or regulatory - As regards order passed by APTEL, in law, the APTEL could grant exclusion of certain period on the basis of principles ul G s. 14 - On facts, AP TEL adopted a just and lawful approach in examining the relevant facts and in excluding the entire. period claimed by respondent which starts from the notice for arbitration dated 8.9.2003 given by the respondent, till the application of the respondent u/s. 11 of the Arbitration H 448 SUPREME COURT REPORTS [2015] 12 S.C.R. A Act before the High Court was finally disposed of on 18. 3. 2009 - Challenge to impugned order in respect of views taken on the issue of limitation in the light of principles of s. 14 fails - As regards the claim for reimbursement, entire phraseology used in Article 3.8 of the PPA clarifies that B parties were aware that tax regime keeps changing and therefore any advance income tax payable for the income from the project only had to be reimbursed by the Board - As a successor of the Board the appeliant cannot avoid the liability to reimburse advance income tax paid by_ the C respondent, on the ground that MAT was a new variety of tax concept introduced subsequently in which minimum tax became payable on the basis of mere book profits of even power generating companies - It cannot be said that such, 0 tax is not on income from the project and thus, not covered by Article 3.8- Taxable income became amenable to MAT on account of s. 115JB - Claim for MAT covered by Article 3. 8 and payable as such when requisite conditions stand E ~~~d . Dismissing the appeals, the Court HELD: 1.1 There is no possibility of any difference of opinion in accepting that on account of judgment of this Court in Gujarat Urja the Commission has been F elevated to the status of a substitute for the Civil Court in respect of all disputes between the licencees and generating companies. Such dispute need not arise from the exercise of powers under the Electricity Act. Even claims or disputes arising purely out of contract like in G the instant case have to be either adjudicated by the Commission or the Commission itself has the discretion to refer the dispute for arbitration after exercising its power to nominate the arbitrator. A statutory authority H like the Commission is also required to determine or A.P. POWER COORDINATION COMMITTEE v. LANCO 449 KONDAPALLI POWER LTD. decide a claim or dispute either by itself or by referring it A to arbitration only in accordance with law and thus Section 174 and 175 of the Electricity Act assume relevance. Since no separate limitation has been prescribed for exercise of power under Section 86(1)f) nor this adjudicatory power of the Commission has been B enlarged to entertain even the time barred claims, there is no conflict between the provisions of the Electricity Act and Limitation Act to attract the provisions of Section 17 4 of the Electricity Act. In such a situation on account of provisions in Section 175 of the Act or even otherwise C the power of adjudication and determination or even the power of deciding whether a case requires reference to arbitration
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