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2015 (12) TMI 896 - ITAT PUNE

2015 (12) TMI 896 - ITAT PUNE - TMI - Assessment u/s.153A - Held that:- In absence of any incriminating material, no addition can be made in the assessment u/s.153A

Disallowance of additional depreciation - Held that:- Generation of electricity is a manufacturing activity and the assessee is eligible for additional depreciation u/s.32(1)(iia).

Depreciation on electrical fittings used for mindmill - Held that:- CIT(A) correctly following the decision of the Tribunal in the c .....

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ly directed the AO to verify these expenses and allow depreciation on above items accordingly.

Non making a claim u/s.80IA(4) in the original return of income filed u/s.139(1) - Held that:- CIT(A) was not justified in rejecting the claim made u/s.80IA(4) of the I.T Act merely because the assessee had not made the claim in the original return.

Methodology of computation of deduction u/s.80IA(4) - Held that:- Each phase of windmill has to be considered as separate undertakin .....

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ar, i.e. the assessment year in which deduction u/s.80IA was first claimed by the assessee after exercising his option as per the provisions of section 80IA(2) of the Act. - Decided in favour of assessee. - ITA Nos.1148 to 1154/PN/2013 - Dated:- 30-10-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Nikhil Pathak For The Department : Smt. Harshavardhini Buty ORDER PER R.K. PANDA, AM: ITA No.1148/PN/2013 filed by the assessee is directed against the order dated 18-03- .....

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sessee) : 2. Facts of the case, in brief, are that the assessee is a partnership firm engaged in the business of manufacturing, packing and selling of Tobacco Jarda, allied by-products, Lime and Generation of power through windmill. It filed the return of income on 31-10-2004 declaring total income of ₹ 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 24-0 .....

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ming 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(A) upheld the action of the AO. Aggrieved with such .....

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sessee could not be placed in a better position vis-a-vis the income declared in the original return. 3] 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 material was found in respect of the deduction u/s. 80IA(4) claimed in respect of windmills, the said claim of the assessee made in the asst. u/s. 153A was .....

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issues in respect of which no incriminating evidence was found during search should have been considered in the asst. u/s. 153A and thus, the deduction claimed by the assessee should have been allowed. 6] The learned CIT(A) erred in not appreciating that each phase of wind mills was to be considered as a separate undertaking eligible for deduction u/s.80IA and hence, the deduction u/s.80IA(4) should have been computed independently for each phases and not on consolidated basis. 7] The learned CI .....

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. 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 a .....

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he above submission by the Ld. Counsel for the assessee and in absence of any objection from the Ld. Departmental Representative, the order of the CIT(A) holding that assessee is not entitled to make a fresh claim in the return filed u/s.153A when no such claim was made in the original return of income has to be upheld. The grounds raised by the assessee are accordingly dismissed. ITA No.1149/PN/2013 (A.Y. 2005-06) (By Assessee) : 5. Grounds of appeal No.1 to 8 by the assessee relate to denial o .....

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re identical to grounds of appeal in ITA No.1148/PN/2013 for A.Y. 2004-05. We have already decided the issue and the grounds raised by the assessee have been dismissed. Following the same reasonings, the grounds raised by the assessee for A.Y. 2005-06 are also dismissed. ITA No.1183/PN/2013 (A.Y. 2005-06 (By Revenue) : 8. The grounds raised 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 t .....

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ales tax incentive/benefit to the tune of ₹ 2,62,49,999/-in sales tax incentive deferral scheme on account of its investment in windmills. The entire sales tax incentive has been transferred by the assessee to Kopargaon Sahakari Sakhar Karkhana Ltd. and M/s. Vanaz Engineering Ltd. On account of these transfer of benefit the assessee has received an amount of ₹ 2,04,16,666/- from Kopargaon Sahakari Sakhar Karkhana Ltd. and ₹ 58,33,332/- from M/s. Vanaz Engineering Ltd. with liab .....

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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 ₹ 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 .....

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A No.36/2009 order dated 29-10-2010 and the decision of the Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd. Vs. DCIT reported in 18 ITR 106 it was argued that in absence of any incriminating material found during the course of search no addition can be made in the assessment u/s.153A of the I.T. Act. 11. In appeal the Ld.CIT(A) relying on the decision of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transports Ltd. reported in 16 ITR (Trib.) 5 .....

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/s.143(3) prior to search becomes final unless any incriminating evidence was found relating to the addition during the course of search. 12. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 13. We have considered the rival arguments made by both the sides. Admittedly, the assessment in the instant case was earlier completed u/s.143(3) on 29-12-2008 which is prior to the date of search that took place on 06-10-2009. No material has been gathered during the course of pr .....

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rehousing Corporation vide ITA No.523/2013 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 or .....

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A 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 ₹ 4,70,07,435/-. 16. After hearing both the sides, we find the assessee in the original return of income filed on 31-12-2006 has not claimed any deduction u/s.80IA(4) and had declared income of ₹ 20,08,76,295/-. In the return filed in response to notice u/s.153A on 24-06-2010 the assessee declared income of  .....

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he grounds raised by the assessee are identical to grounds of appeal in ITA No.1148/PN/2013 for A.Y. 2004-05. We have already decided the issue and the grounds raised by the assessee have been dismissed. Following the same ratio, the grounds raised by the assessee are dismissed. 19. Grounds of appeal No.9 to 9.2 by the assessee are as under : 9] The learned CIT(A) erred in confirming the disallowance of depreciation at higher rate of 80% claimed by the assessee in respect of the cost of electric .....

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the depreciation at a higher rate of 80% was not allowable in respect of such items. 20. Facts of the case, in brief, are that the AO during the course of assessment proceedings noted from the depreciation chart that addition of ₹ 46,06,93,328/- was made in the block of windmills. From the breakup of the cost the AO noted that the assessee has included cost of civil works in this cost. He therefore asked the assessee to justify its claim of depreciation at higher rate of 80% on the expend .....

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indmills 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 ₹ 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 .....

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hereof, made in the original return of income. The claim by the appellant of depreciation at higher rate on civil construction of windmills is inadmissible in view of the jurisdictional ITAT decision in Poonawalla Finvest and Agro (P) Ltd. Vs ACIT reported in 118 TTJ 68 and Vanaz Engineering Ltd. vs. Addl. CIT in ITA No. 987/PN/2006 dated 31.10.2008. The Delhi High Court in Anil Kumar Bhatia and Special Bench ITAT Mumbai in All Cargo Logistics have clearly held that reassessment of income is pos .....

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rections contained in para 6.3 of that order. 23. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 24. The Ld. Counsel for the assessee at the outset submitted that since the addition is not based on any incriminating material found during the course of search or post search enquiries and the original assessment was completed on 29-12-2008 which is prior to the date of search on 06-10-2009, therefore, no disallowance is called for. For this proposition, he relied on th .....

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n the other hand while supporting the order of the CIT(A) submitted that the AO has jurisdiction u/s.153A to reassess the income. 26. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book 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 sear .....

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8377; 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 provision of section 40(a)(ia) of the Act .....

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y CIT(A). On further appeal, the Tribunal allowed the appeal of the assessee as stated by CIT(A) and not controverted by the Ld. Departmental Representative. Therefore, in absence of any incriminating material, no addition can be made in the assessment u/s.153A. The grounds by the Revenue are accordingly dismissed. 29. Grounds of appeal No. 3 & 4 by the Revenue are as under : 3. The Ld.CIT(A) erred in deciding that power generation from windmill is manufacturing activity. 4. The Ld.CIT(A) er .....

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u/s.80IB(2)(iii) while latter was allowed in respect of undertaking specified u/s.80IA(4)(iv). He further noted that no excise duty is leviable on production of electricity produced by the windmill. Therefore, logical inference is that there is no manufacture involved in the process. Further, the set up of the windmill had absolutely no connection with the assesse s business of manufacture of Tobacco, Jarda, allied products and Lime. He accordingly held that the assessee is not entitled to clai .....

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e 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 .....

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1-03-2002 was entitled to additional depreciation. The relevant observation of Hon ble High Court reads as under (Short Notes) : In order to claim the benefit of section 32(1)(iia) of the Income Tax Act, 1961, what is required to be satisfied is that the new machinery or plant should have been acquired and installed after March 31, 2002, by an assessee, who was already engaged in the business of manufacture or production of any article or thing. The provision does not state that the setting up o .....

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Board reported in 1970 AIR 732 (SC) and the decision of the Delhi Bench of Tribunal in the case of NTPC Ltd. reported in 2002 (4) (TM) 694 (SC) it was held that generation of electricity is a manufacturing activity and the assessee is eligible for additional depreciation u/s.32(1)(iia). In view of the above, the order of the CIT(A) is upheld and the grounds raised by the revenue are dismissed. 36. Ground of appeal No.5 by the Revenue reads as under : The Ld.CIT(A) erred in deciding that assesse .....

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8377; 29,06,008/- have been included in the cost of windmills. Since assets have been put to use for less than 180 days the AO allowed depreciation @5% on the above amount and disallowed the balance depreciation of ₹ 10,17,103/-. 38. In appeal the Ld.CIT(A) following the decision of the Tribunal in the cases of Poonawala Finvest Agro Pvt. Ltd. Vs. ACIT reported in 118 TTJ 68 and Vanaz Engineering Ltd. Vs. Addl.CIT vide ITA No.987/PN/2006 order dated 31-10-2008 held that on power evacuation .....

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h 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 .....

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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 .....

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ciate that in the asst. u/s. 153A, the assessee could make a fresh claim which was not made in the original return and there was no such bar that no new claim could be made by the assessee in the return filed u/s. 153A. 6] The learned CIT(A) ought to have appreciated that the asst. u/s 143(3) had not taken place for this year and hence, in the asst. u/s 153A, the A.O. was bound to assess the total income of the assessee and therefore, even the issues in respect of which no incriminating evidence .....

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ovisions 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. 80 .....

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d 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 assessee and therefore, depreciation @ 80% was rightly claimed by the assessee. 10] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal. 42. The Ld. Counsel for the assessee at the outset submitted that grounds of appeal no.9 and 9.1 a .....

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closing total income of ₹ 12,80,97,695/- after claiming deduction of ₹ 5,36,44,728/-. Since the assessee had not claimed the deduction u/s.80IA(4) the AO was of the opinion that the assessee cannot make the fresh claim in the return filed in response to notice u/s.153A which was not claimed in the original return. According to the AO the person who is searched cannot be placed in a better position after search by declaring lesser income in the return filed in response to notice u/s.1 .....

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not for the benefit of assessee and the income for the purposes of assessment cannot be reduced beyond the income originally assessed. He also relied on the decision of Hon ble Apex Court in the case of Chettinad Corporation Pvt. Ltd. Vs. CIT reported in 200 ITR 300 wherein it has been held that the assessee could not claim deduction which was neither claimed nor allowed in the original assessment during reassessment proceedings. He further held that the claim was not allowable in view of a spe .....

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ous 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 .....

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ssee. The AO accordingly disallowed the claim of deduction of ₹ 5,36,44,728/- u/s.80IA(4). 45. Before CIT(A) the assessee apart from relying on the submissions made in the preceding assessment years submitted that no assessment u/s.143(3) was completed prior to the date of search. Although the assessee in the original return of income had not claimed any deduction u/s.80IA, however, since no assessment has taken place in this year, all the issues are open for adjudication and hence the ass .....

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issues are open for adjudication. It was accordingly argued that assessee is entitled to claim higher deduction u/s.80IA in the return filed u/s.153A. 46. However, the Ld.CIT(A) was not satisfied with the explanation given by the assessee. She noted that the assessee has not claimed deduction u/s.80IA in the original return filed prior to search and the same has been claimed in the return filed in response to notice u/s.153A. Therefore, the assessee cannot make a fresh claim in the return filed .....

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sessee filed his return of income u/s.139(1) on 30-10-2007. The search took place on 06-10-2009. The assessment for this year was pending as on the date of search and therefore the same gets abated in view of second proviso to section 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 h .....

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9(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 provision states that if the assessee has not made any claim in the return no .....

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see has made the claim in the return of income filed u/s.153A and the assessment for this year was pending on the date of search. 51. The Ld. Departmental Representative on the other hand heavily relied on the order of the Ld.CIT(A). He submitted that since the assessee has not made the claim u/s.80IA(4) in the original return of income filed u/s.139(1), therefore, the assessee is precluded from claiming of the same in the return filed u/s.153A. He submitted that the assessee cannot be allowed a .....

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the time of search the assessment for the impugned assessment year was not completed. The assessee filed the return of income in response to notice u/s.153A on 24-06-2010 disclosing total income of ₹ 12,80,97,695/- after claiming deduction of ₹ 5,36,44,728/- u/s.80IA(4) of the I.T. Act. The AO disallowed the claim of deduction u/s.80IA(4) on the ground that the same was not claimed in the original return filed u/s.139(1) of the I.T. Act. Relying on the provisions of section 80AC and .....

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ed 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 .....

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of assessments to be made u/s 153A(1)(b) of the Act for the assessment years 2007-08 and 2008-09, which have abated and for the assessment years 2003-04 and 2006-07, which do not abate. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra) , it has to be held that in so far as the assessment years 2003-04 and 2006-07 are concerned, assessments u/s 153A(1)(b) of the Act would be made on the basis of incriminating material, which has been explained to mean (i) bo .....

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an ambit of an assessment made u/s 153A(1)(b) of theI.T Act for the assessment years 2003-04 and 2006-07. Ostensibly, as observed earlier on the basis of the decision of Special Bench of Tribunal in the case of All Cargo Global Logistics Ltd. (supra), an assessment u/s 153A(1)(b) for the assessment years 2003-04 and 2006-07 would be based on incriminating material, books of accounts, other documents found in the course of search but not produced in the course of original assessment or any undis .....

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and 2006-07 in denying assessee's claim for excluding income on account of retention money. 11. Accordingly, the appeals of the assessee for assessment years 2003-04 and 2006-07 are dismissed. 12. Now, in so far as the assessments for assessment years 2007-08 and 2008-09 are concerned, the original assessments were pending on the date of initiation of search, and the same stand abated in terms of the second proviso to section 153A(1) of the Act. Following the reasoning laid down in the case .....

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eturns 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 t .....

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essment years 2007-08 and 2008-09 empowers him to consider the impugned claim; and, to put it in other words, assessee was competent to raise such a fresh claim in the context of the original jurisdiction vested with the Assessing Officer, though it was not raised in the returns of income originally filed. 13. We may also consider this from another angle. As on the date of initiation of search i.e. 18-12-2008, the returns of income filed by assessee u/s 139(1) of the Act for assessment years 200 .....

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ot only acquires jurisdiction to make additions based on the incriminating material but also retains the original jurisdiction, as explained by the Special Bench of Tribunal in the case All Cargo Global Logistics Ltd. (supra). Thus, the ensuing assessments u/s 153A(1)(b)of the Act for assessment years 2007-08 and 2008-09 would enable the Assessing Officer to consider the impugned claim which has been justifiably made by the assessee. Considering the entirety of circumstances and in law, we, ther .....

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the effect that the claim was 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 inc .....

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nt 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 the contract value. It is pointed out that strictly speaking the judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) is not applicable in the present case as no fresh claim was made in the assessment proceedings, but it is a case where a cl .....

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earned counsel referred to the decision of the Pune Bench of the Tribunal in the case of Jain Irrigation Systems Ltd. vide ITA No.1319/PN/2009 dated 30.01.2012 wherein the import of the judgment of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) has been explained on the basis of the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Jai Parabolic Springs Ltd., (2008) 306 ITR 42 (Del), in the following words :- "5. We have carefully considered rival .....

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e Supreme Court in the case of Goetze (India) Ltd. (supra) was limited to the power of the Assessing Officer to entertain claim for deduction otherwise than by a revised return and does not put fetters on such powers of the appellate authorities." 16. On the basis of aforesaid, it is sought to be made out that the claim of the assessee ought to have been entertained by the lower authorities and decided on its merits. 17. On the other hand, the learned Departmental Representative appearing f .....

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id 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 constr .....

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e return u/s. 153A, the exact quantification of the retention money could not be worked out. Hence we will submit the details thereof later. But for the time being, we submit that the retention money in the various contracts is not taxable in view of the various decisions including the decisions cited below wherein it is held that the taxability of this amount is to be considered in the year in which this amount is due to the assessee from the contractee. (a) CIT v Associated Cables P. Ltd. (200 .....

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see to the effect that the retention money in various contracts retained/deducted by the customers is not taxable; and, various case laws have also been cited, including that of the Hon'ble Jurisdictional High Court of Bombay in Associated Cables (P) Ltd. (supra) in support of the said proposition. Of course, the claim was not reflected in the actual computation of income in the absence of its quantification. During the course of assessment proceedings, assessee not only quantified its claim .....

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d. (supra)? In our view, the fact situation in the present case is qualitatively different than that considered by the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra). Ostensibly, the assessee company made 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 asse .....

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pellate 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 in the aforesaid light, we find no justification for the Revenue to reject ass .....

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ow the income originally returned/assessed and thus the same was not permissible. This objection of the Revenue, in our view is no bar to entertain the aforesaid claim, keeping in mind the ratio of the judgement of the Hon'ble Supreme Court in the case of CIT vs. Shelly Products & Anr., (2003) 261 ITR 367 (SC) and also the judgement of the Hon'ble Gujarat High Court in the case of Gujarat Gas Co. Ltd. vs. CIT, 245 ITR 54 (Guj). 24. On the basis of the aforesaid discussion, in conclus .....

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e claim made u/s.80IA(4) of the I.T Act merely because the assessee had not made the claim in the original return. We accordingly set aside the order of the CIT(A) on this issue and the grounds raised by the assesse are allowed. 54. Ground of appeal No.7 relates to methodology of computation of deduction u/s.80IA(4) as adopted by the AO by considering difference phases of windmills as separate undertaking. The Ld.CIT(A) following his order for A.Y. 2005-06 held that in a fresh claim made by the .....

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cision 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 .....

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stent losses up to the A.Y. 2007-08 and assessee did not opt for claiming the deduction u/s 80IA(2) of the Act. So far as A.Y. 2008-09 is concerned, assessee opted for claiming the deduction u/s 80IA(2) treating the said assessment year (A.Y.) as an initial assessment year as there was the profit in Satara wind mill but losses in the Tamil Nadu wind mill and Panchgani wind mill. If we look at the scheme of the section 80IA(2), it speaks about the "undertaking" or "enterprise" .....

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he Ld. CIT(A). The term "business" used In sub-sec.(5) section 80IA in our humble opinion is confined to the independent undertaking and cannot get merged with the other businesses. In Sec. 80IA(2), for claiming deduction "undertaking" or "Enterprise" as such is to be considered. Sec.80IA(2) is charging sections for determining basic eligibility and there is no mention of word "business". Sub-sec.(5) of Sec.801A speaks of business but same is to be constru .....

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er has rightly held that every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profits. Another unit engaged in the same business for the purpose of computing the deduction u/s.80IA. We find no reason to interfere with the findings of the Ld.CIT(A) on this issue. Accordingly, the same are confirmed and grounds taken by the Revenue are dismissed. 58. Respectfully following the decision of the Coordinate Bench of the Tr .....

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lation 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 su .....

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an for which the assessee has claimed deduction. He further noted that the major bone of contention between the assessee and the revenue is the issue of initial assessment year as envisaged in section 80IA(5) of the I.T. Act. Assessee treats the first year of its claim as initial assessment year and thereby computes its quantum deduction u/s.80IA(4) of the Act. However, the provisions make it clear that assessee is eligible for deduction u/s.80IA(4) only when profits and gains from windmills exc .....

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of installation has to be necessarily adopted rather than the first year of claim. He accordingly rejected the claim of the assessee amounting to ₹ 5,36,44,728/-. In appeal the Ld.CIT(A) upheld the action of the AO. 62. The Ld. Counsel for the assessee at the outset submitted that the Pune Bench of the Tribunal in the case of Poonawala Estate Stud & Agro Farm Pvt. Ltd. reported in 136 TTJ (Pune) 236 following the decision of Hon ble Madras High Court in the case of Velayudhaswamy Spin .....

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decided in favour of the assessee by the decision of the Pune Bench of the Tribunal in the case of Poonawalla Estate 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 questio .....

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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 during the periods as specified in sub-s. (2) and thereafter, twenty-five per cent of the profits and gains for further five assessment years : Provided that where the assessee is a .....

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ustrial park or generates power or commences transmission or distribution of power : Provided that where the assessee begins operating and maintaining any infrastructure facility referred to in cl. (b) of Explanation to cl. (i) of sub-s. (4), the provisions of this sub-section shall have effect as if for the words fifteen years , the words twenty years had been substituted..............." 14. From the above provisions of sub-s. (2) of s. 80-IA of the Act, it is evident that the assessee is .....

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is regard i.e., on the issue of assessee s option to select the initial assessment year , we have perused the citations relied upon by the assessee s counsel. The conclusion by the Tribunal Mumbai Bench decision in ITA No. 4620/Mum/2007 (asst. yr. 2004-05) in the case of Dy. CIT vs. Ushdev International Ltd., is straight on this issue of initial assessment year and the option to the assessee and the held portion of the decision reads as under : "In view of the above learned CIT(A) s order t .....

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ction 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 ch .....

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hich the assessee started generating the electricity. Therefore, the order of the CIT(A) has to be reversed on this issue. It is clear that the initial assessment year for the above purposes was the first year in which the assessee claimed the deduction under s. 80-IA(1) after exercising his option as per the provisions of s. 80-IA(2) of the Act. Consequently, the assessee is entitled to claim the deduction of ₹ 25,44,326 under s. 80-IA in respect of the profits from the windmill activity. .....

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year, i.e. the assessment year in which deduction u/s.80IA was first claimed by the assessee after exercising his option as per the provisions of section 80IA(2) of the Act. The grounds raised by the assessee are accordingly allowed. 66. In grounds of appeal No. 9 to 9.1 the grievance of the assessee is regarding denial of claim of higher rate of depreciation in respect of cost of electrical fencing and temporary approach road. 67. The Ld. Counsel for the assessee at the outset submitted that t .....

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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 power generation from windmill is manufacturing activity. 3. The Ld.CIT(A) erred in deciding that assessee can claim additional depreciation on windmill 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 depreciati .....

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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 assessee was ge .....

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ted the claim of additional depreciation at ₹ 91,23,658/-. 73. In appeal the Ld.CIT(A) allowed the claim of the assessee by observing as under : 7.1 The appellant has stated that since the issue is similar to Grounds No.20 to 20.5 to A.Y. 2006-07, it places reliance on submissions made for that year. However, the facts for A.Y. 2006-07 are distinguishable in as much as the claim for additional depreciation was made in the original return filed and allowed by the Assessing Officer in the or .....

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2 in the case of Shri Aninash Nivrutti Bhosale. It is to also seen that the Madras High Court decision in the case of V.T.M. Ltd reported in ITR 336 is squarely on the related ground that has been taken by the Assessing Officer for denial of additional depreciation that even if the windmill has no connection with the business of manufacture carried out by the assessee (In this ___ manufacture of jarda), it is entitled to claim additional depreciation on the cost of the windmill. Grounds No. 13 t .....

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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 .....

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bserved as under : 6.3 On careful consideration, I find that the above issue has been dealt elaborately by the jurisdictional Tribunal in the case of poonawalla Finvest & Agro Pvt. Ltd. Vs. ACIT reported in 118 TTJ (Pune) 68 : 2008 12 DTR 211 and Vanaz Engineering Ltd. Vs. Addl.CIT, Range-7 in ITA No.987/PN/2006 A.Y. 03-04 dated 31-10-2008. In view of the above, I do not find any requirement to consider other judgments relied upon by the appellant as the Hon ble Tribunal, Pune A Bench has al .....

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in the case of Vanaz Engineering Ltd. also wherein the principle laid in Poonawalla Finvest & Agro Pvt. Ltd. was followed, it was held that claim of depreciation in respect of plant and machinery and electrical fittings is allowed and the claim of depreciation in respect of building is rejected. Following the same, I am of the opinion that the depreciation on power evacuation infrastructure, transformer, erection and commissioning of these structures, like work, electrical items will qualif .....

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, the appellant gets consequential relief. Grounds No. 11 to 11.2 therefore, is partly allowed, subject to the above remarks. 80. Since the Ld.CIT(A) while along higher rate of depreciation on electrical fittings used for windmill has followed the decision of the Coordinate Bench of the Tribunal, therefore, in absence of any contrary material, we find no infirmity on this issue. Accordingly, ground raised by the Revenue is dismissed. ITA No.1152/PN/2013 (A.Y. 2008-09) (By Assessee) : 81. Grounds .....

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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, .....

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here was no such bar that no new claim could be made by the assessee in the return filed u/s. 153A. 6] The learned CIT(A) ought to have appreciated that the asst. u/s 143(3) had not taken place for this year and hence, in the asst. u/s 153A, the A.O. was bound to assess the total income of the assessee and therefore, even the issues in respect of which no incriminating evidence was found during search should have been considered in the asst. u/s 153A and thus, the deduction claimed by the assess .....

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ar reasonings, the above grounds raised by the assessee are allowed. 84. Ground of appeal No.7 by the assessee read as under : 7] The learned CIT(A) erred in not appreciating that each phase of wind mills was to be considered as a separate undertaking eligible for deduction u/s 80IA and hence, the deduction u/s 80IA(4) should have been computed independently for each phases and not on consolidated basis. 85. After hearing both the sides, we find the above ground is identical to ground of appeal .....

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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 a .....

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und 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 claimed deduction u/s.80IA(4) to the tune of ₹ 3,22,50,551/- in the original return filed u/s.139(1) and hence, the deduction should have been allowed to that extent. 89. After hearing both the sides, we find it is the alternate contention of .....

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eciation at a higher rate of 80% was not allowable in respect of such items. 10.1] The learned CIT(A) failed to appreciate that the above items were part and parcel of the wind mill purchased by the assessee and therefore, depreciation @ 80% was rightly claimed by the assessee. 91. The Ld. Counsel for the assessee at the outset submitted that the above issue is decided against the assessee by the decision of the Pune Bench of the Tribunal in the case of Poonawala Finvest & Agro Pvt. Ltd. rep .....

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ed in manufacturing activities, although windmill has no connection with its manufacturing business. 94. After hearing both the sides, we find the above grounds are identical to grounds of appeal No.1 and 2 in ITA No.1185/PN/2013. We have already decided the issue and the grounds raised by the Revenue have been dismissed. Following the same reasonings the above grounds by the Revenue are dismissed. 95. Ground of appeal No.3 by the Revenue reads as under : 3. The Ld.CIT(A) erred in deciding that .....

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-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 ₹ 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 .....

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he 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 material was found in respect of the deduction u/s 80IA(4) claimed in respect of windmills, the said claim of the assessee made in the asst. u/s153A was not allowable. 5] The learned CIT(A) failed to appreciate that in the asst. u/s. 153A, the assessee could make a fresh claim which was not made in the ori .....

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imed by the assessee should have been allowed. 98. Grounds of appeal No. 1 to 6 relate to disallowance u/s.80IA(4) where the assessee has not claimed the same in the return filed u/s.139(1) and claimed the same for the first time in the return filed in response to notice u/s.153A. 99. After hearing both the sides, we find the above grounds are identical to grounds of appeal No.1 to 6 in ITA No.1151/PN/2013. We have already decided the issue and the grounds raised by the assessee have been allowe .....

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to ground of appeal No.7 in ITA No.1151/PN/2013 for A.Y. 2007-08. We have already decided the issue and the ground raised by the assessee has been allowed. Following similar reasonings, the above ground by the assessee 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 .....

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ection 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 assessee have been allowed. Following similar reasonings, the above grounds raised by the assesse .....

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alternate contention of the assessee that deduction u/s.80IA(4) made to the extent of its claim in the original return. Since we have already allowed the claim made in the return u/s.153A, therefore, this ground becomes infructuous. Accordingly, the same is dismissed. 106. Grounds of appeal No.10 to 10.1 by the assessee reads as under: 10] 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 the win .....

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t & Agro Pvt. Ltd. reported in 118 TTJ 68. In view of the above, the above grounds by the assessee are dismissed. 108. Ground of appeal No.11 by the assessee being general in nature is dismissed. ITA No.1187/PN/2013 (By Revenue) (A.Y. 2009-10) : 109. Grounds of appeal No. 1 and 2 by the Revenue read as under : 1. The Ld.CIT(A) erred in deciding that power generation from windmill is manufacturing activity 2. The Ld.CIT(A) erred in deciding that assessee can claim additional depreciation on w .....

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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 .....

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eduction u/s 80IA and hence, the deduction u/s 80IA(4) should have been computed independently for each phases and not on consolidated basis. 3. The Ld.CIT(A) ought to have appreciated that the assessee could have separate undertaking carrying on the eligible business and there was no reason to combine all the eligible undertakings for computing the deduction u/s.80IA(4). 114. After hearing both the sides, we find the above grounds are identical to ground of appeal No.7 in ITA No.1151/PN/2013 fo .....

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owable in respect of such items. 5. The Ld.CIT(A) failed to appreciate that the above items were part and parcel of the windmill purchased by the assessee and therefore, depreciation @80% was rightly claimed by the assessee. 116. The Ld. Counsel for the assessee at the outset submitted that the above grounds have been decided against the assessee by the decision of the Pune Bench of the Tribunal in the case of Poonawala Finvest & Agro Pvt. Ltd. (Supra). In view of the above, the above ground .....

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onnection with its manufacturing business. 119. After hearing both the sides, we find the above grounds are identical to grounds of appeal No.1 and 2 in ITA No.1186/PN/2013 for A.Y.2008-09. We have already decided the issue and the grounds raised by the Revenue have been dismissed. Following the same reasonings the above grounds by the Revenue are dismissed. 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 depreciati .....

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