TMI Blog2013 (7) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... o find out the claim of the assessee that the losses were already adjusted against the profits of ineligible units of the assessee in earlier years and directed the ld. CIT(A) for adjudicating the issue afresh accordingly - Decided in favor of Assessee. - I.T.A. No. 4093/Mum/2012 - - - Dated:- 9-7-2013 - Shri B. R. Mittal, JM And Shri Rajendra, AM,JJ. For the Appellant : Ms. Toral Jitesh Shah For the Respondent : Ms. C Tripura Sundari ORDER Per B. R. Mittal JM:- The assessee has filed this appeal for the assessment year 2007-08 against the order of ld. CIT(A) dated 1.3.2012 on following grounds : "1. The ld. CIT(A) has erred in confirming the disallowance made by the ld. AO of your appellant's claim of deduction u/s 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars (out of 15 years) beginning from year ending in which the undertaking begins to operate. During the assessment proceedings, the assessee placed reliance on the decision of Chennai Bench of the Tribunal in the case of Mohan Breweries and Distilleries Ltd reported in 24 SOT 170 wherein it has been held : "Since assessee had adopted to claim deduction u/s 80IA only in AY 2005-06 in lieu of section 80IA(5). There was no question of setting of notionally carried forward unabsorbed depreciation or loss of earlier years against profits of units and the assessee was entitled to claim deduction u/s 80IA(iv) on current assessment profits" The AO considering the decision of the Chennai Bench of the Tribunal in the case of Prasad Productions Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has claimed deduction u/s.80IA of the Act on the profits earned on generation of power generated by wind mill amounting to Rs.11,39,374/-. This wind mill was installed/set up/commenced in A.Y.2002-03. In A.Y.2002-03, 2003-04 and 2004- 05, there were no profits from the wind mill activity. Therefore, the depreciation and losses on wind mill were adjusted by appellant in those years against the income of hotel income. In A.Y.2005-06, the appellant first time earned profit on wind mill. In A.Y.2005-06, the appellant first time claimed deduction u/s.80-IA of the Act. In A.Y.2006-07 also the appellant earned income from wind mill activity. As explained, the depreciation and losses of wind mill for A.Y.2002-03 to 2004- 05 were adjusted by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2005-06. She submitted that the assessee filed appeal against the order of the ld. CIT(A) for the first time for assessment year 2005-06 before the Mumbai Bench of the Tribunal and the Tribunal in ITA No.4226/Mum/2011 vide its order dated 6.2.2013 by following the decision of the Hon'ble Madras High Court in the cases of CIT V/s Emrald Jewel Industry P.Ltd (2011) 53 DTR 263 (Mad) and Velyudhaswamy Spinning Mills (P) Ltd 231 CTR 268 (Mad); 340 ITR 477 (Mad) decided the issue in favour of the assessee subject to the finding that the claim of the assessee that the losses were already adjusted against the ineligible profits of the assessee be verified. The ld. AR filed a copy of the said order (supra) to substantiate her submissions. She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the profits of ineligible units of the assessee in earlier years and directed the ld. CIT(A) for adjudicating the issue afresh accordingly. Respectfully following the earlier orders of the Tribunal in assessee's own case (supra), we set aside the impugned order of the ld. CIT(A) and restore the issue to the ld. CIT(A) to adjudicate the same by following the earlier orders of the Tribunal after giving due opportunity of hearing to the parties. Hence Grounds of appeal taken by the assessee are allowed for statistical purpose. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced after hearing ld. Representative of the parties in the open court on 9th July, 2013. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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