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2015 (5) TMI 825 - BOMBAY HIGH COURT

2015 (5) TMI 825 - BOMBAY HIGH COURT - [2016] 386 ITR 698 - Loss incurred in business of power generation entitled to deduction u/s 80 IA - whether can be set off against business income from manufacturing unit ignoring the provision of section 80-IA(5)? - Held that:- No reason in our referring to the legislative background and these provisions in further details or considering and interpreting them for the present appeals. Once the statement of facts about which there can be no dispute show tha .....

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80- IA for eligible unit, then, it would be open for the Revenue to project all questions and propose them as substantial questions of law. In that event, they can raise all contentions and equally pertaining to the setting off of the said losses and in relation to the eligible section 80- IA unit from the income of the non section 80-IA ineligible unit. NO substantial questions of law - Decided against revenue. - ITA No. 2485/2013, ITA No. 2492/2013, ITA No. 2498/2013, ITA No. 2510/2013 - Dated .....

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order. The appeals before the Tribunal arise from the order passed by the Commissioner of Income Tax (Appeals) dated 7th September, 2010, 21st December, 2010 and 13th September, 2011 for four consecutive years. The Commissioner partly allowed the assessee's appeals against the assessment under section 143(3) of the Income Tax Act, 1961 for relevant years but the assessee was not satisfied with such relief. It, therefore, carried the matter to the Tribunal in further appeal. 2. The Revenue pr .....

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a far reaching impact and effect. He relied upon the Tribunal's conclusions whereunder ground No.1 of the assessee's appeal was referred and the preceding paragraphs prior to such conclusion dealt with that ground. That ground was in respect of determination of business income for the relevant years without allowing the assessee set off of depreciation / loss of its two units viz. Windmill 1 and 2, income from which was otherwise eligible for deduction under section 80-IA. 4. Though Mr. .....

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loss on account of the 80-IA unit for all these assessment years viz. 2005-06 to 2008-09. These losses incurred in the eligible unit have been adjusted against profits of ineligible unit viz. the manufacturing unit in the respective years. After adjusting these losses, positive income has been determined and tax has been paid. For these years where the 80-IA unit incurred losses, there was no claim for deduction under section 80-IA by the assessee. The grievance is that the assessee by filing re .....

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ded in the income of the assessee. The Assessing Officer relied upon the decision of the special bench of the Tribunal at Ahmedabad in the case of Goldmine Shares and Finance Pvt. Ltd. However, the Commissioner (Appeals) in the appeal by the assessee partly granted relief. That partial relief and the Tribunal's order, according to Mr. Tejveer Singh, would raise substantial questions of law. 5. We find that the ground No.1 in the assessee's appeal before the Tribunal and referred in detai .....

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ed and/or not applied or incorrectly applied. This is not a case where the losses incurred by the section 80-IA unit having been set off against the income from the non section 80-IA unit that course was impermissible. The Tribunal's conclusion in paragraph 5 at running pages 4.0 and 4.1 is thus not made subject matter of challenge in this appeal by the Revenue. The Revenue question projects the applicability of section 80-IA(5). Section 80-IA, to the extent relevant, reads as under: "8 .....

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tive assessment years. (2) The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any ten consecutive asessment years out of fifteen years beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops an industrial part or develops a special economic zone referred to in clause (iii) of sub-section (4) or generates power or commenc .....

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