9911796707
TMI Blog2015 (12) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... l. It filed the return of income on 31-10-2004 declaring total income of Rs. 26,22,35,980/-. A search action u/s.132 of the Act was conducted in the Malpani group of cases on 06-10-2009. In response to notice u/s.153A, the assessee filed the return of income on 24-06-2010 disclosing total income of Rs. 23,95,15,482/- after claiming deduction of Rs. 2,27,20,498 u/s.80IA(4) of the Act. During the course of assessment proceedings, the AO noted that the assessee has claimed deduction of Rs. 2,27,20,498/- u/s.80IA(4)(iv)(a) towards profit earned from wind power generation from its windmill. However, no such claim was made by the assessee in its original return. The assessee has claimed the benefit of deduction of Rs. 2,27,20,498/- by way of claiming deduction u/s.80IA(4) in the return filed in response to notice u/s.153A. He, therefore, asked the assessee to explain as to why such allowance should be given to the assessee especially when there was no claim in the original return of income filed on 31-10-2004. Rejecting the various explanations given by the assessee and relying on various decisions the AO disallowed the claim of deduction u/s.80IA(4) of the Act. 3. In appeal the Ld.CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst other income in earlier years. 7.1] The learned CIT(A) failed to appreciate that the provisions of section 80IA(5) were applicable only from the initial asst. year i.e. the asst. year in which deduction u/s. 80IA was first claimed by the assessee and only for the years starting from the initial asst. year and thereafter, the provisions of section 80IA(5) were applicable and hence, there was no reason to set off the notional brought forward losses/depreciation while computing the deduction u/s. 80IA for the present asst. year. 8] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal." 4. The Ld. Counsel for the assessee at the outset submitted that the issue stands decided against the assessee by the decision of the Pune Bench of the Tribunal in the case of B.G. Shirke Construction Technology Pvt. Vs. ACIT vide ITA Nos.727 to 730/PN/2012 order dated 31-10-2013 for A.Yrs. 2003-04 and 2006-07 to 2008-09 respectively. It has been held in the said decision that in respect of the assessments which are completed prior to the date of search, no fresh claim of deduction can be made by the assessee. In view of the above submission by the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. and Rs. 58,33,332/- from M/s. Vanaz Engineering Ltd. with liability to return these amounts to the said parties after 10 years in 5 equal annual instalments. As per the terms agreed between the parties the assessee was to treat the amount received from the purchaser as loan which was to be repaid as per the terms mentioned above without any interest. Further, the agreement shows that in case there was delay in payment within a given time the assessee was entitled to receive interest @14% per annum and 18% per annum respectively from Kopargaon SSK Ltd. and M/s. Vanaz Engg. Ltd. As per clause 1.11.1 the assessee was to treat the amount as loan and accordingly showed the amount in the balance sheet as unsecured loan. Since the assessee has paid interest @12.5% to Kopargaon SSK Ltd. and @9% to M/s. Vanaz Engg. Ltd. as discount amounting to Rs. 32,50,743/- and claimed the same as finance charge in the profit and loss account, the AO asked the assessee to explain as to why disallowance u/s.40(a)(ia) shall not be applied for failure to deduct TDS on interest as per the requirement of section 194A. Rejecting the various explanations given by the assessee and applying the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 order dated 21-04-2015 has held that the AO while passing the assessment order u/s.153A r.w.s. 143(3) cannot disturb the assessment order which has been finalized earlier in absence of any incriminating material unearthed during the search or during 153A proceedings. Respectfully following the decisions of Hon'ble jurisdictional High Court cited (Supra) and in absence of any contrary material brought to our notice, we do not find any infirmity in the order of the CIT(A). The ground raised by the Revenue is accordingly dismissed. 14. So far as ground of appeal No.2 by the Revenue is concerned, the Pune Benches of the Tribunal are consistently taking the view that provisions of section 40(a)(ia) of the I.T. Act are applicable even when no amount is payable at the end of the year. Therefore, ground of appeal No.2 by the Revenue has to be allowed. However, in view of the Ist ground being dismissed, the 2nd ground become only academic in nature. ITA No.1150/PN/2013 (A.Y. 2006-07) (By Assessee) : 15. Grounds of appeal Nos. 1 to 8.1 by the assessee relates to denial of deduction claimed u/s.80IA(4) of the Act amounting to Rs. 4,70,07,435/-. 16. After hearing both the sides, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of windmill is entitled to depreciation @80%. 21. However, the AO did not accept the same on the ground that in the provisions of I.T. Rules, 1962 for allowing depreciation different types of assets have been found specified thereby giving different rates of depreciation. According to him windmill and any special designed types which run on windmills has been allowed depreciation @80% and the block of assets which constitutes building has been allowed depreciation @10%. From the details furnished by the assessee he noted that cost of electrical yard fencing and cost of preparation of temporary approach road totaling to Rs. 29,06,008/- has been included in the cost of windmills. According to him electrical yard fencing and preparation of approach road cannot be considered as part of windmills because they are nothing but building. Their use is not depending on windmill. Relying on the decision of the Pune Bench of the Tribunal in the case of Poonawala Finvest Agro Pvt. Ltd. Vs. ACIT reported in 118 TTJ 68 the AO disallowed excess claim of depreciation of Rs. 10,17,103/-. 22. In appeal the Ld.CIT(A) upheld the action of the AO by observing as under : "9.2. It is thus seen th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok filed on behalf of the assessee. We have also considered the various decisions cited before us. Admittedly, in the instant case the assessment was completed u/s.143(3) on 29-12-2008. No incriminating material was found during the course of search for the impugned assessment year. However, during proceedings u/s.153A it was found that assessee has claimed higher depreciation on electrical fencing and temporary approach road. Therefore, in view of the decision of the Pune Bench of the Tribunal in the case of Poonawala Finvest & Agro Pvt. Ltd. reported in 118 TTJ 68, we are of the considered opinion that the Ld.CIT(A) is justified in sustaining the addition made by the AO. Accordingly, the disallowance of depreciation amounting to Rs. 10,17,103/- is upheld. Grounds raised by the assessee are accordingly dismissed. ITA No.1184/PN/2013 (A.Y. 2006-07) (By Revenue) : 27. Grounds of appeal No.1 & 2 by the Revenue are as under : "1. The Ld.CIT(A) erred in deciding that no addition can be made u/s.153A, if the same is not made in assessment u/s.143(3) of the Act and if it is not based on any incriminating seized materials pertains to such A.Y. 2. The Ld.CIT(A) erred in deciding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Hon'ble Bombay High Court in the case of Murali Agro Products (Supra) no disallowance is called for. 32. Aggrieved with such order of the CIT(A) the revenue is in appeal before us. 33. After hearing both the sides, we find the claim of the assessee regarding additional depreciation was allowed by the AO in the assessment made u/s.143(3) on 29-12-2008 which is prior to the date of search on 06-10-2009. The disallowance of additional depreciation by the AO is not based on any incriminating material found during the course of search or post search enquiry. Therefore, in view of the decision of Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Supra) the Ld.CIT(A) was justified in deleting the disallowance made by the AO. We accordingly uphold the order of the CIT(A) and the grounds raised by the revenue are dismissed. 34. Even on merit also we find the issue stands decided in favour of the assessee by the decision of the Hon'ble Madras High Court in the case of CIT Vs. VTM Ltd. reported in 319 ITR 336 has held that assessee which was manufacturing textile goods and had set up a windmill after 31-03-2002 was entitled to additional depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 31-10-2008 held that on power evacuation, infrastructure, transformer, erection and commissioning of the structures, line work, electrical items will qualify for depreciation @80% whereas MEDA charges, site development expenses, cost of construction of controlled beam, civil work, internal road, development application charges, professional fees and bank charges will not qualify for higher rate of depreciation. She accordingly directed the AO to verify these expenses and allow depreciation on above items accordingly. 39. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 40. After hearing both the sides, we find no infirmity in the order of the CIT(A) who has directed the AO to allow the depreciation in the light of the decision of the Tribunal in the case of Poonawala Finvest Agro Pvt. Ltd. (Supra) and Vanaz Engineering Ltd. (Supra). Nothing contrary was brought to our notice by the Ld. Departmental Representative against the above 2 decisions of the Tribunal. We accordingly uphold the order of the CIT(A) on this issue and the grounds raised by the revenue is dismissed. ITA No.1151/PN/2013 (A.Y. 2007-08) (By Assessee) : 41. Grounds raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income tax Act, 1961 the profit from the eligible business for the purpose of deduction u/s 80IA of the Act need not be computed after deduction of the notional brought forward losses and depreciation of eligible business which have been set off against other income in earlier years. 8.1] The learned CIT(A) failed to appreciate that the provisions of section 80IA(5) were applicable only from the initial asst. year i.e. the asst. year in which deduction u/s. 80IA was first claimed by the assessee and only for the years starting from the initial asst. year and thereafter, the provisions of section 80IA(5) were applicable and hence, there was no reason to set off the notional brought forward losses /depreciation while computing the deduction u/s. 80IA for the present asst. year. 9] The learned CIT(A) erred in holding that the expenditure on electrical yard fencing and cost of preparation of temporary approach road was not part of, actual cost of the wind mill and hence, the depreciation at a higher rate of 80% was not allowable in respect of such items. 9.1] The learned CIT(A) failed to appreciate that the above items were part and parcel of the wind mill purchased by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee furnishes a return of his income on or before the due dates specified u/s.139(1). The AO further referred to the specific provisions of section 80IA(5) according to which in order to determine the quantum of deduction u/s.80IA(4) the income of the assessee has to be computed as if such eligible business was only source of income of the assessee during the previous year relevant to initial assessment year and to every subsequent assessment year upto and including the assessment year for which such deduction is claimed. The AO computed the income of the year by considering both the scenarios, i.e. in a consolidated manner, by considering all windmill undertakings as a single unit of an eligible business and also by considering each windmill undertaking as a single unit of eligible business. From such calculations he came to the conclusion that there are losses both on consolidated basis as well as on individual basis and therefore the question of allowing deduction u/s.80IA(4) of the Act does not arise. He also placed reliance on the decision of the Special Bench of the Tribunal in the case of Goldmine Shares and Finance Pvt. Ltd. reported in 113 ITR 209 according to which for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 153A. Relying on the decision of the Pune Bench of the Tribunal in the case of B.G. Shirke Construction Technology Pvt. Ltd. (Supra) he submitted that the Tribunal in the said decision has held that the assessee can make a new claim for the assessment years which have abated since the AO retains the original jurisdiction. Accordingly, the assessee is entitled to make a fresh claim. 49. So far as the second objection of the CIT(A) that in view of the provisions of section 80AC the assessee can claim the deduction u/s.80IA(4) only if the same has been claimed in the return filed within the due dates stipulated u/s.139(1), the Ld. Counsel for the assessee submitted that the only condition of section 80AC is that the assessee must have filed its return u/s.139(1). Since the assessee has filed the return of income on 31-12-2007 (page 49 of the paper book) within the due date stipulated u/s.139(1) this condition is fulfilled. 50. As regards the contention of the Revenue that the assessee should have also made the claim in the return filed u/s.139(1) is concerned he submitted that the same is not correct. Referring to provisions of section 80IA(5) he submitted that the above provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of the Tribunal from para 9 onwards read as under : "9. We have carefully considered the rival submissions. In this case, search u/s 132(1) of the Act was carried out on 18.12.2008. On the basis of the second proviso to section 153A(1) of the Act, which reads as under :- "Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this [sub-section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate." In the present case, the assessments which are pending on the date of initiation of search are for assessment years 2007-08 and 2008-09, and thus such assessments abate. Before us, the Ld. Counsel for the assessee conceded that assessments for assessment years 2003-04 and 2006-07 were not pending on the date of initiation of search and thus the same do not abate as per the aforesaid proviso to section 153A(1) of the Act. The aforesaid position is not disputed by the Revenue also. 10. In the above undisputed fact situation, now we may examine the scope of assessments to be made u/s 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 153A(1) of the Act. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra), in so far as assessment years 2007-08 and 2008-09 are concerned, the Assessing officer retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A of the Act. In this context, the preliminary issue is as to whether the scope of assessments u/s 153A(1)(b) of the Act for assessment years 2007-08 and 2008-09 can include consideration of assessee's plea to exclude income on account of retention money, considering the fact the returns of income filed by the assessee for assessment years 2007-08 and 2008-09 u/s 139(1) of the Act did not contain any such claim. In the assessments u/s 153A(1)(b) of the Act, assessee claimed that income on account of retention money be excluded in the years when the customers had withheld the retention money and instead tax it in the year of its actual receipt. No doubt, the said claim does not pertain to any incriminating material found in the course of search, so however, on account of the fact that the Assessing Officer retains his original jurisdiction as well in the assessments for the years 2007-08 and 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made in the return of income filed in response to notice issued u/s 153A(1)(a) of the Act, but was submitted by way of a letter during the assessment proceedings and therefore following the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, (2006) 284 ITR 323 (SC), the Assessing Officer was justified in not entertaining such a claim. 15. On this aspect, the learned counsel for the assessee pointed out that in the return of income submitted in response to notice u/s 153A(1)(a) of the Act, assessee had enclosed a Note dated 14.09.2009, a copy of which has been placed in the Paper Book at page 1 to 2, putting-forth its claim for excluding income on account of retention money, but in the computation of income no specific claim was made because the quantification of the claim could not be made in the limited time period allowed to file a return in response to notice u/s 153A(1)(a) of the Act. In the course of the subsequent assessment proceedings, assessee quantified the claim for the respective assessment years and also filed copies of the agreements with the customers which contained the relevant clauses permitting retention of a portion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m made only during the assessment proceedings and not in the return of income. 18. We have carefully considered the rival submissions. The Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) opined that a fresh claim of the assessee can be entertained at the time of assessment only if it is made by way of a revised return of income; and, the aforesaid proposition has been invoked by the income-tax authorities in the present case to deny assessee's claim for exclusion of income on account of retention money, a claim which was made during the assessment proceedings. 19. Factually speaking, we find that in terms of a communication dated 14.09.2009 filed along with the return of income filed in response to notice issued u/s 153A(1)(a) of the Act, assessee inter-alia, stated as under :- "The business of our company is to execute construction contracts. In respect of some of the contracts executed by the company there is a clause in the contract which entitles the customer to retain between 5% to 10% of contract value till the completion of defect liability period contained in the contract which is generally between 12 to 24 months after the completion of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim for excluding income on account of retention money in the return of income itself, though the quantification was absent, and the actual quantification of such claim was made during the assessment proceedings; thus, substantively speaking it cannot be said that assessee made a new claim during assessment proceedings which was not made in the return of income. Considering the above fact situation, in our view, the CIT(A) erred in upholding the action of the Assessing Officer in refusing to entertain the impugned claim based on the judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra). 21. In any case, the judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) does not impinge on the powers of appellate authorities to entertain a fresh claim which was hitherto not preferred by the assessee in the return of income, as explained by the Hon'ble Delhi High Court in the case of Jai Parabolic Springs Ltd. (supra). Accordingly, there was no impediment for the CIT(A) to have entertained the impugned claim especially when the required facts to adjudicate the controversy were already on record. 22. Thus, considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of J-Sons Foundry Pvt. Ltd. Vs. DCIT and vice versa vide consolidated order dated 30-01-2013 for A.Y. 2007-08 and 2008-09 he submitted that the Tribunal in the said decision held that each windmill is to be considerate as a separate undertaking. 56. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). 57. After hearing both the sides, we find the Coordinate Bench of the Tribunal in the case of J-Sons Foundry Pvt. Ltd. (Supra) while dismissing the grounds raised by the Revenue on this issue has observed as under : "15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations i.e. in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses. Though the first wind mill was erected and commissioned in the A.Y. 2002-03, there were consistent losses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (Supra) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.80IA and therefore deduction u/s.80IA(4) should have been computed independently for each phase and not on consolidated basis. The grounds raised by the assessee on this issue is accordingly allowed. 59. Grounds of appeal No.8 to 8.1 relates to whether initial assessment year u/s.80IA(5) means year of installation of windmill or year in which the claim of deduction u/s.80IA is first made. 60. After hearing both the sides, we find the AO at para 4.8.1 of the order held that as per the provisions of section 80IA(5) for determining the quantum of eligible deduction under sub-section 80IA(4) of the I.T. Act, the income of such assessee is to be computed as if such eligible business was the only source of income of the assessee during the previous year relating to initial assessment year and to every subsequent assessment year upto and including the assessment year for which the determination is to be made. Considering all windmill undertakings as one single unit of eligible business of the assessee the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Stud & Agro Farm Pvt. Ltd. following the decision of Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills Pvt. Ltd. has observed as under : "13. We have heard both the parties and perused the factual matrix of the case and orders of the Revenue and the paper book. We have also examined the legal position on the matter. Before adjudicating the issue in question, it is necessary to examine the scope of the provisions relating to the initial assessment year : "80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc.- (1) Where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking or an enterprise referred to in sub-s. (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to hundred per cent of profits and gains derived from such business for the first five assessment years commencing at any time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, as seen from the schedule of details available in the learned CIT(A)'s order the assessee has incurred losses in the asst. yrs. 1997-98 and 1998-99 only. Subsequently in all the years there were profits till asst. yr. 2004-05. It is not clear whether the assessee has claimed any deduction in earlier years under s. 80-IA. This being the 8th year of starting the project, assessee would be left with only another 7 years of claim out of the 10 years available to the assessee. Considering this we are of the opinion that the initial assessment year is to be determined on the basis of the year the assessee choose to claim the deduction for the first time........" 15. When the statute have granted the option to choose the initial assessment year and when the assessee has so chosen the current assessment year as the initial assessment year and when the assessee accordingly paid the taxes on the profits of the windmill activity in the earlier years as per the statute, the AO's decision to thrust the initial assessment year on the assessee is not in tune with the provisions of s. 80- IA(2) of the Act. Accordingly, we are of the opinion, the learned CIT(A) erred in holding that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if assessee is engaged in manufacturing activities, although windmill has no connection with its manufacturing business. 4. The Ld.CIT(A) erred in deciding that assessee is eligible to claim depreciation @80% on electrical fittings used for windmill, although depreciation on electrical fittings is @10% only as per I.T. Rules, 1962. 5. The appellant craves to add, alter or amend any or all the grounds of appeal." 70. So far as ground of appeal No.1 is concerned we find no assessment order was passed u/s.143(3) of the I.T. Act. The Ld.CIT(A) has also not deleted any addition made for this year on the ground that no addition can be made without any incriminating evidence. In view of the above, we are of the considered opinion that this ground raised by the Revenue is devoid of any merit. Accordingly, the above ground is dismissed. 71. Grounds of appeal No.2 and 3 by the Revenue relates to additional depreciation on the cost of windmills installed. 72. Facts of the case, in brief, are that the AO during the course of assessment proceedings held that additional depreciation is available only to an assessee engaged in manufacture of production of article or thing. Since the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of V.T.M. Ltd. (Supra) . Further, we have already decided this issue in favour of the assessee in ITA No.1184/PN/2013 for A.Y. 2006- 07 and the ground raised by the Revenue on this issue has been dismissed. Accordingly, the grounds raised by the Revenue are dismissed. 76. In ground of appeal No.4 the Revenue has challenged the order of the CIT(A) in allowing depreciation @80% on electrical fittings used for windmills. 77. After hearing both the sides, we find the AO allowed depreciation @10% as per I.T. Rules on electrical fittings used for windmills. In appeal the Ld.CIT(A) held that the assessee is eligible to claim depreciation @80% on electrical fittings used for windmills. While doing so, he relied on the decision of the Pune Bench of the Tribunal in the case of Poonawalla Finvest & Agro Pvt. Ltd. (Supra). 78. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 79. After hearing both the sides, we find no infirmity in the order of the CIT(A). We find the Ld.CIT(A) at para 6.3 in the order for A.Y. 10- 11 which has been followed in this year has observed as under : "6.3 On careful consideration, I find that the above issue has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81. Grounds of appeal No. 1to 6 by the assessee read as under : "The following grounds are taken without prejudice to each other - On facts and in law, 1] The learned CIT(A) erred in denying the deduction claimed u/s 80IA(4) of Rs. 5,49,98,855/-. 2] The learned CIT(A) erred in holding that in view of the provisions of section 80AC, the assessee can claim the deduction u/s 80IA( 4) only if the same has been claimed in the return filed within the due date stipulated u/s.139(1) and since the said claim was not made in the original return filed u/s 139(1), the same could not be allowed in the asst. u/s 153A. 3] The learned CIT(A) erred in holding that the assessee was not entitled to make a fresh claim in the return filed u/s 153A on the ground that in the asst. u/s 153A, only income which had escaped asst. could be taxed and the assessee could not be placed in a better position vis-a-vis the income declared in the original return. 4] The learned CIT(A) erred in holding that in the asst. u/s 153A, the issues which have already attained finality in the original asst. cannot be disturbed unless any incriminating evidence is found in respect of the same and since no such materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and depreciation of eligible business which have been set off against other income in earlier years. 8.1] The learned CIT(A) failed to appreciate that the provisions of section 80IA(5) were applicable only from the initial asst. year i.e. the asst. year in which deduction u/s. 80IA was first claimed by the assessee and only for the years starting from the initial asst. year and thereafter, the provisions of section 80IA(5) were applicable and hence, there was no reason to set off the notional brought forward losses /depreciation while computing the deduction u/s. 80IA for the present asst. year." 87. After hearing both the sides, we find the above grounds by the assessee are identical to grounds of appeal No.8 to 8.1 in ITA No.1151/PN/2013. We have already decided the issue and the grounds raised by the assessee have been allowed. Following similar reasonings, the above grounds raised by the assessee are allowed. 88. Ground of appeal No.9 by the assessee reads as under : "9] Without prejudice to the above grounds, assuming without admitting that the assessee is not eligible to make fresh claims in the asst. u/s.153A, the assessee submits that the assessee had already claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% only as per I.T. Rules, 1962." 96. After hearing both the sides, we find the above ground is identical to ground of appeal No.4 in ITA No.1185/PN/2013. We have already decided the issue and the ground raised by the Revenue has been dismissed. Following the same reasonings this ground by the Revenue is dismissed. ITA No.1153/PN/2013 (By Assessee) (A.Y. 2009-10) : 97. Grounds of appeal No. 1to 6 by the assessee read as under : "The following grounds are taken without prejudice to each other - On facts and in law, 1] The learned CIT(A) erred in denying the deduction claimed u/s 80IA(4) of Rs. 7,75,08,855/-. 2] The learned CIT(A) erred in holding that in view of the provisions of section 80AC, the assessee can claim the deduction u/s 80IA( 4) only if the same has been claimed in the return filed within the due date stipulated u/s.139(1) and since the said claim was not made in the original return filed u/s 139(1), the same could not be allowed in the asst. u/s 153A. 3] The learned CIT(A) erred in holding that the assessee was not entitled to make a fresh claim in the return filed u/s 153A on the ground that in the asst. u/s 153A, only income which had escaped asst. could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is allowed. 102. Grounds of appeal No.8 to 8.1 by the assessee read as under : "8] The learned CIT(A) erred in not appreciating that in view of the provisions of section 80IA( 5) of the Income tax Act, 1961 the profit from the eligible business for the purpose of deduction u/s 80IA of the Act need not be computed after deduction of the notional brought forward losses and depreciation of eligible business which have been set off against other income in earlier years. 8.1] The learned CIT(A) failed to appreciate that the provisions of section 80IA(5) were applicable only from the initial asst. year i.e. the asst. year in which deduction u/s. 80IA was first claimed by the assessee and only for the years starting from the initial asst. year and thereafter, the provisions of section 80IA(5) were applicable and hence, there was no reason to set off the notional brought forward losses /depreciation while computing the deduction u/s. 80IA for the present asst. year." 103. After hearing both the sides, we find the above grounds by the assessee are identical to grounds of appeal No.8 to 8.1 in ITA No.1151/PN/2013. We have already decided the issue and the grounds raised by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and the grounds raised by the Revenue have been dismissed. Following the same reasonings the above grounds by the Revenue are dismissed. 111. Ground of appeal No.3 by the Revenue reads as under : "3. The Ld.CIT(A) erred in deciding that assessee is eligible to claim depreciation @80% on electrical fittings used for windmill, although depreciation on electrical fittings is @10% only as per I.T. Rules, 1962." 112. After hearing both the sides, we find the above ground is identical to ground of appeal No.4 in ITA No.1186/PN/2013. We have already decided the issue and the ground raised by the Revenue has been dismissed. Following the same reasonings this ground by the Revenue is dismissed ITA No.1154/PN/2013 (By Assessee) (A.Y. 2010-11) 113. Grounds of appeal No. 1 to 3 by the assessee read as under : "1. The Ld.CIT(A) erred in holding that for the purposes of section 80IA(4), all the windmills purchased by the assessee were to be considered as one consolidated eligible undertaking and the deduction u/s.80IA(4) was to be computed on consolidated basis only. 2. The learned CIT(A) erred in not appreciating that each phase of wind mills was to be considered as a separate und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 120. Ground of appeal No.3 by the Revenue reads as under : "3. The Ld.CIT(A) erred in deciding that assessee is eligible to claim depreciation @80% on electrical fittings used for windmill, although depreciation on electrical fittings is @10% only as per I.T. Rules, 1962." 121. After hearing both the sides, we find the above ground is identical to ground of appeal No.3 in ITA No.1186/PN/2013 for A.Y. 2008-09. We have already decided the issue and the ground raised by the Revenue has been dismissed. Following the same reasonings this ground by the Revenue is dismissed. 122. Grounds of appeal No.4 and 5 by the Revenue read as under : "4. The Ld.CIT(A) erred in deciding that selection of initial assessment year for computing exemption u/s.80IA is at the option of the assessee and not the year in which year business activity of eligible undertaking/unit starts? 5. The Ld.CIT(A) erred in deciding that if brought forward loss of eligible unit u/s.80IA, is already set off with non-eligible business undertaking then there is no need of notionally brought forward such loss and set off with income of eligible unit/undertaking before arriving quantum of exempt income of such eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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