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2014 (4) TMI 663 - ITAT MUMBAIAllowability of deduction u/s. 80IA of the Act - Captive power generating DG sets – Rail systems - Nature of benefit – Capital OR not - Sales tax exemption benefit - Held that:- As decided in assessee’s own case for the previous assessment years, it has been held that the claim u/s 80IA in respect of captive power generating DG sets and rail systems is allowed – also it has been held that sales tax exemption benefit is on account of capital receipt not liable to tax Decided against Revenue. Deletion made u/s. 14A of the Act r.w. Rule 8D of the Rules – Held that:- The decision in Godrej & Boyce Manufacturing Co. Ltd. Vs DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT] followed - Rule 8D cannot be applied during the assessment year - the assessee has purchased units out of its own funds – thus, the matter is remitted back to the AO for fresh adjudication to verify the cash flow statement to see whether the assessee has purchased units from its own funds - the disallowance appears to be reasonable considering the nature of disallowance as computed by the assessee - the interest part shall be considered by the AO after verification and the addition of other expenses set aside – Decided partly in favour of Revenue. Exclusion of taxable investment in unit of growth fund – Held that:- The AO himself has excluded the investment in units of growth fund while calculating the disallowance u/s. 14A of the Act - The CIT(A) seems to have given this direction without appreciating the fact of the case - general observations made by the CIT(A) need not be interfered – Decided against Revenue. Disallowance in respect of Employee stock option expenses – Held that:- Relying upon Biocon Ltd. VS DCIT [2013 (8) TMI 629 - ITAT BANGALORE] - the expenditure in respect of ESOP is allowed after considering the SEBI guidelines - the allowability of the claim of the assessee has to be considered afresh – thus, the matter is remitted back to the AO to consider the claim of the assessee – Decided in favour of Assessee. Nature of Receipts – Capital or not - Proceeds from certified emission reduction – Receipts generated out of capital projects – Held that:- The assessee has shown the sale consideration out of sale proceeds of Carbon Credit under the head’ other income’ as revenue receipts which now it wants to claim as capital receipts - no new facts have to be verified so far as the claim is concerned realization of Carbon Credit are already shown under the head’ other income’ – the decision in My Home Power Ltd. Vs DCIT [2012 (11) TMI 288 - ITAT HYDERABAD] followed - the AO is directed to treat the Proceeds realized from sale of Certified Emission Reduction (CERs) generated out of Capital Projects registered with UNFCCC as capital receipts – Decided in favour of Assessee. Deduction u/s 80IA(2) of the Act – Held that:- The decision in National Thermal Power Company Limited Versus Commissioner of Income-Tax [1996 (12) TMI 7 - SUPREME Court] followed - the facts on ‘record’ mean the ‘record’ for the year under consideration - It is a legal claim which involves question of law but at the same time facts relating to the claim have not at all been considered at the assessment stage except that the assessee is having a jetty, nothing more is considered at the assessment stage - the claim u/s. 80IA has to be tested on many factors - Having an infrastructure facility is only one of them - other factors have not been considered and need to be verified by bringing cogent evidences on record – the additional ground cannot be admitted – Decided against Assessee.
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