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2018 (8) TMI 2088 - ITAT CHENNAIReopening of assessment u/s 147 - denial of deduction u/s 80IA - scope of original order of assessment as merged with the judgment of Madras High Court - Tribunal and Madras High Court allowed the claim of the assessee u/s 80-IA on the very same windmill but AO by referring the amendment made by Finance Act, 1998, claims that windmill cannot be equated with power generating unit and he withdrew the deduction granted when the original order of assessment is merged with the judgment of Madras High Court, can the Assessing Officer reopen the assessment and withdraw the claim of deduction granted under Section 80-IA of the Act? - HELD THAT:- This Tribunal is of the considered opinion that the Assessing Officer has no jurisdiction to overturn the judgment of Madras High Court. The judgment of Madras High Court is binding on all the authorities in the State. Whatever may be the reason, the Assessing Officer has to follow the judgment of Madras High Court. Now the Revenue claims that an SLP was filed before the Apex Court. It is open to the Revenue to pursue remedy before the Apex Court in a manner known to law. However, the Assessing Officer cannot reopen the assessment and withdraw the claim of deduction under Section 80-IA of the Act which was already allowed by the Madras High Court. This Tribunal cannot permit the Assessing Officer to overturn the judgment of Madras High Court merely because an SLP is pending before the Apex Court. After the judgment of Madras High Court confirming the order of this Tribunal, the Assessing Officer cannot reopen the assessment on the ground that windmill cannot be equated to power generating unit. The Assessing Officer ought to have raised this issue before this Tribunal or High Court. Having failed to raise the issue before the Tribunal or before the High Court, the Assessing Officer cannot reopen the assessment. The High Court, being constitutional High Court, its judgment has to be followed by all the authorities in this State. Therefore, reopening of the issue of deduction under Section 80-IA of the Act after the order of this Tribunal and the judgment of the Madras High Court is not justified. Hence, the CIT(Appeals) has rightly allowed the appeal of the assessee. - Decided against revenue.
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