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2024 (3) TMI 1255 - AT - Income TaxDeduction u/s 80IA(4) on wind mills and solar power plants - AO disallowed assessee’s claim of deduction on the ground that all wind mills and solar power plants shall be considered as “one undertaking”, whereas assessee had considered each wind mill as separate undertaking for deduction u/s 80IA(4) - HELD THAT:- As in earlier years [2019 (8) TMI 1900 - ITAT PUNE] A.Y. 2012-13, 2013-14 and 2014-15 ITAT has allowed assessee’s claim of deduction u/s 80IA(4) treating each wind mill as a separate undertaking and treating solar power plant as a separate undertaking. Accordingly, we hold that each wind mill and solar power plant is a separate undertaking for the purpose of calculation of 80IA(4) deduction - Decided against revenue. Profit from eligible business for purpose of deduction u/s 80IA need not be computed after deduction of the notional brought forward losses and depreciation of eligible business even when the same had been set off against income from non-eligible business in earlier years - HELD THAT:- As can be seen from the above grounds of appeal raised by the Revenue for A.Y. 2012-13, A.Y. 2013-14 the Revenue has not raised any ground related to set-off of losses of earlier years of eligible undertaking and applicability of section 80IA(5) of the Act, though in the assessment orders for A.Y. 2012-13 & A.Y. 2013-14, the AO had discussed 80IA(5) and set-off of losses of earlier years of the eligible undertaking. It means Revenue has accepted the decision of ld.CIT(A) and preferred not to file an appeal on the impugned issued before ITAT. Once Revenue has not preferred an appeal on the impugned issue before ITAT for A.Y. 2012-13, A.Y. 2013-14 & A.Y. 2014-15, means the impugned issue has attained finality. In these facts and circumstances of the case, Revenue cannot raise the impugned issue for A.Y. 2020-21 as Revenue has accepted the decision of ld.CIT(A) for earlier years as discussed above. Therefore, Revenue’s Ground No.3 is not maintainable. As deciding on merits once the earlier years losses of eligible undertakings have been set-off against the profit from another business, then those losses will not be carry forwarded notionally to set-off against the profits of eligible undertakings for the purpose of section 80IA(4) of the Act - Thus respectfully following the case of PCIT Vs. Sterling Agro Industries Limited,[2023 (8) TMI 768 - DELHI HIGH COURT] it is held that since there were no actual losses for the eligible undertakings during the year i.e.A.Y.2020-21, there was no question of notional set-off. Accordingly, assessee is eligible for deduction under section 80IA(4) on the profit earned by each undertaking separately. Accordingly, Revenue’s Ground No.3 is dismissed.
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