TMI Blog2013 (12) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... D. Karunakara Rao, AM:- This appeal filed by the assessee on 24.5.2011 is against the order of CIT (A)- 23, Mumbai dated 4.2.2011 for the assessment year 2005-2006. 2. Before us, Dr. K. Shivaram, Ld Counsel for the assessee brought our attention to the revised grounds filed before the Tribunal and the same read as under:- "Reopening of assessment bad in law 1. The Ld CIT (A) erred in upholding Assessing Officer reopening the assessment which was completed u/s 143(3) of the Act, dated 20.12.2007 by issue of notice u/s 148 dated 30.3.2009 merely on change of opinion as learned AO had no reason to believe that any income chargeable to tax has escaped assessment, further the learned Assessing Officer failed to appreciate that assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of Windmill installed by it and the unabsorbed depreciation of the earlier years could not be reduced from profits for computing deduction u/s 80-IA. (a) Velayudhaswamy Spinning Mills Pvt. Ltd. vs. ACIT [2012] 340 ITR 477 (Mad) (High Court) (After considering Special Bench decision). (b) CIT vs. Emrald Jewel Industry P. Ltd. [2011] 53 DTR 263 (Mad) (High Court) (After considering the above decision) (c) ACIT vs. Eveready Spinning Mills Ltd. [2012] 14 ITR 491 (Chennai) (Tri) 2. Binding Effect: Non jurisdictional High Court decision after considering the Special Bench decision is binding on Tribunal: Anil H. Lad vs. DCIT [2012] 13 ITR 581 (Bang.)(Trib.) (Considered the above decisions)." 3.1. Referring to the above citatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, it is a settled proposition that assessee-company is eligible for deduction u/s 80-IA in respect of the income from Windmill installed by it and the unabsorbed depreciation set off in earlier years cannot be reduced from the profits for computing the deduction u/s 80-IA of the Act. This is the conclusion in the decision of Hon'ble Madras High Court in the case of CIT vs. Emerald Jewel Industry P. Ltd (supra). Similar views are expressed by the same High Court in the case reported in 231 CTR 368 and another decision reported in 116 TTJ 705. It was argued by the assessee counsel, in principle, the ground no.2 has to be decided in favour of the assessee subject to the finding that the claim of the assessee that the losses were already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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