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2015 (6) TMI 316 - ITAT DELHI

2015 (6) TMI 316 - 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. 2157/Del/2012 - Dated:- 13-5-2015 - Shri J. Sudhakar Reddy And Shri C. M. Garg,JJ. For the Appellant : Dr. Rakesh Gupta, Adv. For the Respond .....

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m 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 ₹ 8,16,195/- and delete the entire addition. 2. Facts in brief:- The assessee is a company and filed its return of income on 26.8.2008 declaring nil income after claiming deduction u/s 80 IC at ₹ 8,16,195/- for the AY 2008-09. The Assessing Officer (the AO .....

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l 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 conservati .....

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le 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 Assessee made a writ petition before the Hon'ble High Court of Uttaranchal, Nainital against the assessment proceedings before any assessment order was passed by the A.O. The Hon'ble High Court of Uttaranchal Nainital has dismissed the writ petition of the .....

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rt. 3. The assessee carried the matter in appeal before the First Appellate Authority without success. 4. Further 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 200 .....

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ial 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 mistake can be perpetuated year after year. He relied on the order of the Revenue authorities and submitted that the term echo tourism has to be properly appreciated and as the assessee does not po .....

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s order dt. 27.9.2013 has held as follows. 13. We are not expressing any opinion on the above findings of the Ld. CIT(A) for the reason that it would be an academic exercise in the case of this assesee, as we find that the assesee herein has been claiming deduction u/s 80IC of the Act for the earlier years and that the AO has allowed the same in the first year u/s 143(3) and as it is well settled that if the conditions for allowability of a deduction is examined by the AO in the initial year of .....

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e 23 of paper book) v. 2009-10 72,28,540/- 72,28,540/- Disputed in appeal vi. 2010-11 8,72,235/- 143(1) 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, .....

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s 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 finality on account of the subject matter of dispute having been finally adjudicated, the question of reopening and revisiting the same issue again in subsequent years would not arise. This is based on the principle that there sh .....

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ase, where although the Assessing Officer has allowed the assessee deduction under section 80-1 of the Act in the preceding years, one may still have certain reservations as to whether the issue of eligibility of Unit nos. 2 and 3 fulfilling the conditions has been finally settled, since the question has not been a subject matter of any appellate proceedings in the years preceding the assessment year 1991-92. However, there is yet another aspect which needs to be considered. By virtue of section .....

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ilable for the seven assessment years immediately succeeding the initial assessment year. Surely in cases where an assessee is held to be eligible for deduction in the initial assessment year, the same cannot be denied in the subsequent assessment years on the ground of ineligibility since the set of facts which enable an assessee to claim to be eligible for deduction under section 80-1 of the Act occur in the previous year relevant to the initial assessment year and have to be examined in the i .....

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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 ben .....

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nted to the assessee in the initial assessment year. This in our view would not be permissible unless the past assessments are also disturbed. 77. 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 the Act and it would not be open for the Assessing Officer to deny the deduction under section 80-1 of the Act on the ground of non fulfillment of the condi .....

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