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2021 (5) TMI 255 - AT - Income TaxReopening of assessment u/s 147 - carbon credits sales addition and Section 43B disallowance of provisions of gratuity and leave encashment payments - HELD THAT:- This tribunal’s first round order dealing with the Revenue’s appeal in Section 143(3) proceedings [2015 (9) TMI 642 - ITAT HYDERABAD] has already decided the issue in Revenue’s favour holding that such receipt is capital in nature as As legislature has inserted Section 115BBG in the Act vide Finance Act, 2017 w.e.f.01-04-2018 treating the said carbon credits as taxable income. We make it clear that we are in AY.2008-09 only. This is not in Revenue’s case that the said statutory provision carries any retrospective effect. We thus hold that both the lower authorities have erred in law and on facts in treating the assessee’s carbon credits’ receipts as taxable income. The impugned addition is directed to be deleted therefore. Whether the impugned re-opening is liable to be sustained in the facts of the instant case or not? - Assessing Officer’s sole re-opening reason recorded to this effect dt.30-03-2013 goes contrary to the tribunal’s landmark decision in My Home Power Ltd., Vs. DCIT [2012 (11) TMI 288 - ITAT HYDERABAD] deciding the issue in assessee’s favour as upheld in hon’ble jurisdictional high court in CIT Vs. My Home Power Ltd.,[2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT]. The assessee’s case in the light of hon’ble apex court’s landmark decision in GKN Driveshafts (India) Ltd., Vs. ITO, [2002 (11) TMI 7 - SUPREME COURT] that all the facts invalidate the impugned re-opening as well since their lordships have made it clear that there are twin stages of posing challenge to correctness thereof i.e., by filing objections before the Assessing Officer at the threshold stage as well as during the course of scrutiny assessment’s appeals. We follow the foregoing reason mutatis mutandis and hold that the impugned reasoning is also not sustainable as per law. The same stands quashed therefore. The assessee’s third substantive ground raising the issue of correctness of 43B disallowance is rendered infructuous in above terms.
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