RAKESH NATH, J. - (1.)THIS Review Petition has been filed by Gujrat Electricity Regulatory Commission against the judgment of this Tribunal dated 23.03.2010 in Appeal No. 68 of 2010. This judgment was rendered by this Tribunal in the Appeal filed by Torrent Power Limited against order dated 17.1.2009 passed by the State Commission determining the Annual Revenue Requirement for the control period FY 2008 -09 to FY 2010 -11 and truing up for the FY 2007 -08. In this judgment, the Tribunal had allowed the Appeal in part and had directed the State Commission to reconsider the claims of Torrent Power Limited, the Appellant, in view of the findings of the Tribunal during the process of truing up.
(2.)THE State Commission has preferred this Review Petition in respect of the following issues: -
A) Coal Transit Losses: i) The main plea of Torrent Power Limited in the Appeal was that the coal transit loss of 1.4% for the generating stations at Gandhinagar and Wanakbori power stations, owned by state generating company can not be basis of comparison with the transit losses in respect of the Appellant because it procures coal directly from mines unlike in case of Gandhinagar and Wanakbori which are procuring washed coal. The Tribunal found force in the plea of the Appellant and held that in view of ground reality, some consideration in coal transit loss for washed and unwashed coal was to be given and therefore, directed the State Commission to decide increased percentage of allowable coal transit losses for the Appellant.

ii) According to the Petitioner State Commission, the above directions of the Tribunal are based on erroneous facts and constitute an error apparent on the face of the record. The State Commission in its written submissions, earlier filed in the Appeal before the Tribunal on 12.1.2010 had clarified that in respect of GSECL, the state owned generating company, for washed coal no transit loss had been allowed and for raw coal transit loss of 1.4% had been allowed. To substantiate its claim, the State Commission had enclosed a copy of its order in case No. 943 of 2009 which was annexed with the written submission filed by the State Commission. It is stated that the Tribunal has passed para 43 of the judgment without considering these facts.

iii) According to the State Commission, GSECL units utilize both washed coal and raw coal at their Wanakbori and Gandhinagar stations and the State Commission had not allowed any transit loss for the washed coal. For imported coal also no transit loss had been allowed for these plants. For raw coal, the Commission had allowed only 1.4% transit loss for Gandhinagar and Wanakbori Thermal Power Stations.

(B) Disallowance of Income Tax to earn ROE as post Tax: i) The Tribunal had set aside the order of the State Commission in respect of Income Tax and directed the State Commission to allow the Income tax by grossing up to ensure the stipulated post tax return to the Appellant, Torrent Power Limited. ii) The Petitioner State Commission has stated that it had vide its written submissions before the Tribunal on 16.11.2009 had submitted that the Appellant for the Assessment Year 2009 - 10 (FY 2008 -09) had paid total income tax of

Rs. 56.65 crores. However, the State Commission on the basis of the existing Regulations had approved income tax of Rs. 76.69 crores which is much more than the actual tax payment. Thus it may not be proper for the State Commission to allow any further claim on account of income tax, which had not been paid at all.

iii) Allowing excess income tax than what had been paid by the Appellant will burden the consumers. The State Commission as per Regulation 66 (20) of its Regulations 2005 had allowed income tax on approved return at 33.99%. Regulation 7 alone can not be interpreted in a manner that defeats Regulation 66 (20). Principle of harmonious construction has to be adopted so as to ensure that both the Regulations survive.

(3.)
(I) This apart, Shri Sanjay Sen, the Learned Counsel for the Petitioner State Commission further pointed out that certain factual inaccuracies existed in relation to the transit loss for coal. The Tribunal in its judgment dated 23.3.2010 had held that the percentage of allowable transit loss should be increased without any direction on what should be the nature of increase keeping in view the fact that the State Commission's Regulations provided for 0.85% transit loss against which it allowed 1.4%.

(II) Regarding income tax he, stated that the State Commission Regulations provide that income tax can be allowed as a pass through on actual basis. The Tribunal had not dealt with Regulation 66(20). Further, this Regulation is different and distinct from the Central Commission's Regulations and therefore requires to be specifically dealt with.

According to Ms. Deepa Chawan, Learned Counsel for Torrent Power Limited (the Appellant), the Respondent herein, the plea of the Respondent/Appellant related to lack of uniformity in the principles adopted by the State Commission in not incentivising for achieving better distribution loss but penalizing for not achieving target transit loss which is an uncontrollable factor. Coal procured by Torrent Power Limited is of higher grade as compared to that procured by the State Generation company and therefore more vulnerable to pilferage. Moreover, contrary to the claim of the State Commission, it had allowed 1.4% transit loss to State Generation Company for both raw and washed coal. Regarding income tax, she argued that the judgment dated 23.3.2010 had thereafter been relied upon and affirmed by this Tribunal in subsequent decisions reported in 2010 ELR (APTEL) 1073 TNEB Vs. NLC and judgment dated 19.11.2010 in Appeal No. 134 of 2010 in the matter of TNEB Vs. NTPC. According to her, the Review Petition is not maintainable as the Petitioner has failed to make out a case of the existence of error apparent on the face of the record.