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2015 (6) TMI 281 - ITAT DELHI

2015 (6) TMI 281 - ITAT DELHI - TMI - Exemption claimed u/s 80 IC denied - Held that:- The assessee has been granted deduction u/s 80 IC for the AY 2005- 06, 2006-07 and 2007-08. The first year of claim was the A.Y. 2005-06. The impugned AY i.e. AY 2008-09 is the fourth year of the claim.

The Assessing Officers over a period of three years being assessment years 1988-89, 1989-1990 and 1990-1991 have consistently accepted the claim of the assessee for deduction under section 80-I of th .....

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l of relief in the subsequent years would not be permissible without disturbing the assessment in the initial assessment year. See CIT vs. Delhi Patra Prakashan Ltd.[2013 (6) TMI 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 .....

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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 company and filed its return of income on 28.9.2008 declaring nil income after claiming deduction u/s 80 IC at ₹ 11,31,194/- for the AY 2008-09. The Assessing Officer (the AO .....

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el is neither a part of any eco-tourism unit promoting/managing Ecotourism NOR doing any activities to promote eco-tourism. It is also noted that assessee is neither making any investment for conserving the environment or natural resources nor making any contribution in any such project/ program. 4. Hotel is using CFL along with normal tube-lights in rooms, televisions, small refrigerators, ceiling fan, exhaust fan, normal table lamps using bulbs, having their negative impact on energy conservat .....

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ble materials, plastic materials. 10. No solar system is found to be used for lighting and other purpose. 11. The ITI of this office has visited the hotel and found that no measures for promoting ecotourism are adopted by the hotel. 3.9 None of the conditions as discussed above are fulfilled by the assessee, therefore, claim of deduction u/s 80 IC of the Act is rejected. Penalty proceedings have been initiated separately for furnishing inaccurate particulars and thereby concealing income. (Addit .....

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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 .....

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the assessee does not possess any clearance from Pollution Control Board of Uttarakhand Govt., the exemption cannot be granted. 7. After hearing rival contentions, perusing papers on record, orders of authorities below, we hold as follows. 8. The assessee has been granted deduction u/s 80 IC for the AY 2005- 06, 2006-07 and 2007-08. The first year of claim was the A.Y. 2005-06. The impugned AY i.e. AY 2008-09 is the fourth year of the claim. This Bench of the Tribunal in the case of ITO vs. M/s .....

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the initial year of claim then, in the subsequent year, this aspect cannot be reviewed by the AO and a contrary view taken. The particulars of the assessments where the claim has been made and allowed in the earlier years is given in the table below. Sl.No. A.Y. Deductions claimed u/s 80 IC (Rs.) Disallowance 80 IC (Rs.) Assessmentu/s i. 2005-06 31,069/- 143(3) (page 18 of paper book) ii. 2006-07 23,25,655/- 143(3) (pages 19, 20 of paper book) iii. 2007-08 67,18,255/- 143(1) iv. 2008-09 1,06,03, .....

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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- .....

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ple that there should be finality in all legal proceedings. The Supreme Court in the case of Parashuram Pottery Works Co. that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. 75. In the facts of the present case, where although the Assessing .....

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o an assessee in respect of the assessment year (referred to as the initial assessment year) relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles or things, or to operate its cold storage plant or plants or the ship is first brought into use or the business of the hotel starts functioning or the company commences work by way of repairs to ocean-going vessels or other powered craft. Such deduction is also available for the seven assessment ye .....

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ses where the facts on the basis of which the deductions are claimed are subject matter of an earlier assessment year and do not arise in the current assessment year, it would not 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 sect .....

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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 in Section 80- 1(2) of the Act, without undermining the basis on which the deduction was granted to the assessee in the initia .....

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e Act without disturbing the assessment for the assessment years relevant to the previous year in which the Unit Nos. 2 & 3 were established. 78. This view has also been accepted by a Division Bench of Gujarat High Court in the case of Saurashtra Cement & Chemical Industries (supra). In that case, the Gujarat High Court held that where relief of a tax holiday had been granted to an assessee in an initial assessment year in which the conditions for grant of tax holiday had tobe examined, .....

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