TMI Blog2015 (6) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... I 70 - DELHI HIGH COURT], Saurashtra Cement [1979 (2) TMI 21 - GUJARAT High Court] and Paul Brothers [1992 (10) TMI 5 - BOMBAY High Court] - Decided in favour of assessee. - ITA No.2156/Del/2012. - - - Dated:- 13-5-2015 - Shri J. Sudhakar Reddy and Shri C.M. Garg,JJ For the Petitioner: Dr.Rakesh Gupta, Adv. For the Respondent : Sh. P.Dam Kanunjna, Sr.D.R. ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER This is an appeal filed by the assessee and is directed against the order of the Ld.CIT(A)-II, Dehradun dated 14.02.2012 pertaining to the Assessment Year ( AY ) 2008-09 on the following grounds. 1. The authorities below has erred in law and on facts in disallowing ₹ 11,31,190/- claimed by the assessee u/s 80 IC of the Act. 2. The authorities below has not bring HOTEL in the ambit of ECO-TOURISM and deviated from the main section 80IC of the Act. 3. The item no. 15 of PART-C of XIV schedule includes hotels under ECOTOURISM which is grossly mistaken by both the authorities below. 4. It is prayed to allow the claim of deduction u/s 80IC of ₹ 11,31,190/- and delete the entire addition. 2. Facts in brief:- The assessee is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved the assessee filed appeal before us. 5. The Ld.Counsel for the assessee Dr.Rakesh Gupta submitted that the AO has granted deduction u/s 80 IC to the assessee for the AY 2005-06 in an order dt. 27.3.2006 passed u/s 154 of the Act. Further he submitted that for the AY 2006-07 the claim of the assessee has not been disturbed by the Revenue authorities. Similarly for the AY 2007-08 the AO reopened the assessments by issue of notice u/s 148 on the ground that the assessee is not eligible for deduction u/s 80 IC and thereafter accepted the claim of the assessee. Under these circumstances he relied on the decision in ITA 764/Del/2013 for the AY 2009-10 in the case of ITO vs. M/s Ganga Beach Restorts order dt. 27.9.2013 and submitted that the AO is not entitled to reexamine the claim of the assessee for deduction u/s 80 IC, without disturbing the claim allowed in the initial AYs. He submitted that the case of the assessee has to be allowed. 6. The Ld.Sr.D.R. Mr.P.Damkanunjna, on the other hand opposed the contentions of the assessee and submitted that it is not proper to argue that once a mistake has been committed in a particular AY by the revenue authorities, such a mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.1. The assessments of the earlier years or the later years are not disturbed and the assessee was allowed the claims u/s 80IC. 14. The Hon ble Delhi High Court in the case of CIT vs. Delhi Patra Prakashan Ltd. 355 ITR 14 considered the question as to whether the ITAT was right and holding that requisite conditions to be fulfilled for allowability of deduction u/s 80 I ought to be satisfied, not only in the first or the initial year, but in all the assessment years in which the deduction u/s 80I is claimed by the assessee. The Hon ble High Court at Para 74 to Para 80 held as follows :- 74. In the present case, the claim of the assessee u/s 80-I of the Act was examined and allowed by the Assessing Officer for three years preceding the assessment year 1991-92. It is relevant to note that assessments in the earlier years i.e relating to assessment years 1988-89, 1989-90 and 1990-91 has not been disturbed by the Assessing Officer and there has been no change that could justify the Assessing Officer adopting a different view in the assessment years 1991-92 and thereafter. As stated hereinbefore, in certain cases where the issues involved have attained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be possible for an Assessing Officer to take a different view in the current assessment year without altering or reopening the assessment proceedings in which the eligibility to claim the deduction has been established. 76. In cases where deduction is granted under section 80-1 of the Act, the applicability of the section is determined in the year in which the new industrial undertaking is established. The qualification as to whether any industrial undertaking fulfills the condition as specified under section 80-1 of the Act has to be determined in the year in which the new industrial undertaking is established. Although the deduction under section 80-1 of the Act is available for the assessment years succeeding the initial assessment year, the conditions for availing the benefit are inextricably linked with the previous year relevant to the assessment year in which the new undertaking was formed. In such circumstances, it would not be possible for an Assessing Officer to reject the claim of an assesese for deduction under section 80-1 of the Act on the ground that the industrial undertaking in respect of which deduction is claimed did not fulfill the conditions as specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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