TMI Blog2014 (10) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... enue directed against the order of Ld.CIT(Appeals)-I, Dehradun dt. 31.12.2012 pertaining to the Assessment Year 2009-10 on the following grounds. 1. Whether Ld. CIT(A) has erred in law and on facts in allowing the claim of the assesee not appreciating the fact that rejection of deduction u/s 80IC(2) was not based just on failure to obtain NOC from the pollution Control Board but it was based on the factual facts. 2. Whether the Ld. CIT(A) has erred in law and on facts not to appreciate the fact that ecotourism is the condition precedent, to be complied with for hotels for claiming deduction u/s 80-IC of the IT. Act, 1961. 3. Whether the Ld. CIT(A) has erred in law and on facts in holding that deduction should be allowed if the assessee satisfies the following conditions:- (a) It is a Hotel, (b) It has a valid License, (c) NOC from the pollution Control Board has not been denied to it. 2. Brief facts The assessee, a partnership firm, under the name and style of M/s. Tapovan Resorts at Tapovan, Tehri Garhwal. The assessee claimed deduction u/s 80IC of the I.T. Act, 1961 from the A.Y. 2007-08. This is the third year for claiming deduction u/s 80IC of the I.T. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this proportion relied on the judgment of the Bench of the ITAT in ITA No. 764/D/2013 for asst. year 2009-10 in ITO vs. Ganga Beach Resorts order dated 27.9.2013. The Ld. DR opposed this contention. 9. Now the issue is whether the AO can disallow the claim for deduction u/s 80IC for the asstt. Year 2009-10 when the claim has not been disallowed or withdrawn in the first two years. 10. This issue is no more res integra. The `C Bench of the Tribunal in ITA No. 764/D/2013 for the asstt. Year 2009-10 in the case of ITO vs. M/s. Ganga Beach Resorts Tapovan order dated 27.9.2013 has held as follows : 13. We are not expressing any opinion on the above findings of the Ld. CIT(A) for the reason that it would be an academic exercise in the case of this assesee, as we find that the assesee herein has been claiming deduction u/s 80IC of the Act for the earlier years and that the AO has allowed the same in the first year u/s 143(3) and as it is well settled that if the conditions for allowability of a deduction is examined by the AO in the initial year of claim then, in the subsequent year, this aspect cannot be reviewed by the AO and a contrary view taken. The particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, the question of reopening and revisiting the same issue again in subsequent years would not arise. This is based on the principle that there should be finality in all legal proceedings. The Supreme Court in the case of Parashuram Pottery Works Co. Ltd. Vs. ITO (1977) 106 ITR 1 had held as under :- that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. 75. In the facts of the present case, where although the Assessing Officer has allowed the assessee deduction under section 80-1 of the Act in the preceding years, one may still have certain reservations as to whether the issue of eligibility of Unit nos. 2 and 3 fulfilling the conditions has been finally settled, since the question has not been a subject matter of any appellate proceedings in the years preceding the assessment year 1991-92. However, there is yet another aspect which needs to be considered. By virtue of section 80-I(5) of the Act, deduction under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in Section 80-1(2) of the Act, without undermining the basis on which the deduction was granted to the assessee in the initial assessment year. This in our view would not be permissible unless the past assessments are also disturbed. 77. The Assessing Officers over a period of three years being assessment years 1988-89, 1989-1990 and 1990-1991 have consistently accepted the claim of the assessee for deduction under section 80-I of the Act and it would not be open for the Assessing Officer to deny the deduction under section 80-1 of the Act on the ground of non fulfillment of the conditions under section 80-1(2) of the Act without disturbing the assessment for the assessment years relevant to the previous year in which the Unit Nos. 2 3 were established. 78. This view has also been accepted by a Division Bench of Gujarat High Court in the case of Saurashtra Cement Chemical Industries (supra). In that case, the Gujarat High Court held that where relief of a tax holiday had been granted to an assessee in an initial assessment year in which the conditions for grant of tax holiday had tobe examined, denial of relief in the subsequent years would not be permissible with ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
