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TMI Blog2016 (3) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of power. The windmill was erected and put to use in the period relevant to the A.Y. 2002- 03. The assessee claimed deduction u/s.80IA on the profits of windmill for the first time in the A.Y. 2004-05. The assessment year under appeal is the third year for claiming deduction under the provisions of section 80IA. The AO denied deduction to the assessee u/s.80IA by disputing 'initial assessment year'. Aggrieved by the assessment order dated 24-12-2008 the assessee preferred an appeal before the CIT(A). The CIT(A) upholding the finding of the AO observed, that the 'initial assessment year' in which the generation of power from windmills began is A.Y. 2002-03 and not the first year of claiming deduction, i.e. A.Y. 2004-05. Against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. The Ld. Departmental Representative submitted that there were no profits in the impugned assessment year on which the assessee could have claimed deduction. The Ld. Departmental Representative in support of the findings of CIT(A) placed reliance on the decision rendered in the case of Khinvasara Investment Pvt. Ltd. Vs. JCIT reported as 110 ITD 198 (Pune). The Ld. Departmental Representative prayed for dismissing the appeal of the assessee. 7. We have heard the submissions made by the representatives of both the sides and have perused the orders of the authorities below. We have also considered the decisions on which both the sides have placed reliance. It is not in dispute that the assessee had erected and put to use the windmill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), 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 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 company, the provisions of this sub-section shall have effect as if for the words 'twenty-five per cent'; the words 'thirty per cent' had been substituted. (2) The deduction specified in sub-s. (1) may, at the option of the assessee, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 to the extent of holding that initial assessment year and subsequent succeeding assessment years can only be considered for the purpose of computing deduction under s. 80-IA. Coming to the facts of the case, however, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill activity. Accordingly, the clarificatory ground raised is allowed. In the result, adjudication of the grounds 3 and 4 raised in the appeal is mere academic and hence they are dismissed as infructuous." 8. Recently, the Coordinate Bench of the Tribunal in the case of D.J. Malpani (Supra) has reiterated the position with regard to the 'initial assessment year'. Accordingly, we are of the considered view that the assessee is eligible to claim deduction u/s.80IA on the profits from the windmill for the impugned assessment year. 9. The Ld. Departmental Representative has placed reliance on the decision of Khinvasara Investment Pvt. Ltd. (Supra) in support of his submissions. We are of the considered view that the said order was passed way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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