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2015 (10) TMI 1600 - ITAT MUMBAI

2015 (10) TMI 1600 - ITAT MUMBAI - TMI - Disallowance of deduction claimed u/s 80IA - reducing the eligible profit by the amount of losses and depreciation pertaining to earlier year already been set off against the profit of non-eligible unit - Held that:- Since the assessee has exercised the option of choosing the asst. yr. 2008-09 as initial assessment year as per sub-section (2) of S. 80-IA, only the losses of the years starting from that initial assessment year alone are to be brought forwa .....

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is to be determined accordingly. This is the true import of section 80-IA(5). Therefore the losses of assessment year prior to the A.Y. 2008-09 which has already been set off against income of non-eligible unit could not be notionally carried forward in accordance with section 80IA for setting off against the income of eligible unit for the assessment years 2008-09 & 2009-10 under consideration.

Thus we do not find any merit in the action of the lower authorities for allowing the cla .....

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r which have already been set off against the profit of non-eligible unit. - Decided in favour of assessee. - ITA Nos. 4219 & 4220/Mum/2013 - Dated:- 3-6-2015 - D. Manmohan, VP And R. C. Sharma, AM,JJ. For the Appellant : Shri Hiro Rai For the Respondent : Shri Premanand J & Ms Parminder Kaur ORDER Per R C Sharma, AM. These are the appeals filed by the assessee against the order passed by the ld. CIT-3, Mumbai dated 21-03-2013 for the assessment year 2008-09 in the matter of order passed u/s .....

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-09 the assessee's claim for deduction u/s 80IA amounting to ₹ 38,30,569/- was allowed in respect of Wind Farm Division while framing assessment u/s 143(3) of the Act. Thereafter, the CIT initiated action u/s 263 of the Act wherein A.O. was directed to examine the assessee's claim of eligibility for deduction u/s 80IA(5) of the Act after reducing losses in the form of unabsorbed depreciation which have already been set off in earlier years against profit of ineligible units of asse .....

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the orders of authorities below. The only controversy relates to allowing of claim of deduction u/s 80IA of the Act without reducing the losses of depreciation pertaining to the year prior to the initial assessment year. From the record we found that the assessee has put up a wind mill unit qualifying for deduction u/s 80IA of Income-Tax Act, 1961. The said unit commenced production in AY 2006-07. As per option provided by Section 80IA (2) of Income-Tax Act, 1961 the assessee opted to claim dedu .....

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sessment year for which the determination is to be made. Section 80IA (2) grants option to the assessee to claim deduction for any ten consecutive assessment years out of fifteen years beginning from the year in which the unit generates power. Exercising option granted u/s 80IA(2), the assessee chose to claim deduction u/s 80IA from AY 2008-09. Once the option is exercised, the wind mill unit will be treated as if it is only source of income from year of exercise of option. Hence there does not .....

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Millis (P) Ltd. vs. ACIT(2012 340 ITR 477) (Mad.), (ii) Mohan Breweries v. ACIT, 116 ITD 241 (Chennai), (iii) Shri Anil Lad v. DCIT (ITA No.1262/Bang. 2010), (iv) M Pallonji v. JCIT(2006) (105 TTJ 136)(Mum.), (v) Rangamma Steels & Malleables [2010] 6 taxmann. Com 47 (Chennai-ITAT), (vi) Poonawala Estate stud & Agro farm (p) Ltd. v. ACIT [2012](20 Taxmann. Com 309)(Pune)], (vii) ACIT v. Eveready Spinning Mills Ltd. [2012] 014 ITR (Trib) 0491- [Chennai ITAT-B Bench], Pondichery chlorate, G .....

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provision looks forward to a period of ten years from the initial assessment year (year of option). The fiction does not look backwards to the year beginning referred to in sub-section (2). Sub-section (2) of Section 80IA as substituted w.e.f. Ist April, 2000, gives an option to the assessee for choosing any 10 consecutive assessment years out of 15 years beginning from the year in which the undertaking of the enterprise develops and begins to operate for claiming the deduction. As per sub-so (5 .....

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