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2016 (6) TMI 1116 - ITAT AHMEDABAD

2016 (6) TMI 1116 - ITAT AHMEDABAD - TMI - Disallowance u/s.80IA in respect of Wind Mill business - assessee is engaged in the business of manufacturing and job work in electronically engraved copper rollers and trading of pipes, circles etc. - Held that:- No hesitation in holding that the appellant is entitled to the claim u/s. 80IA on the income derived from wind mill project without notional setting off of losses of earlier years. See Velayudhaswamy Spinning Mills P. Ltd. v. Asst. CIT [2010 ( .....

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2012 - Dated:- 14-6-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) Appellant by : Shri Prasoon Kabra, Sr. D.R. Respondent by : Shri R.T. Shah, A.R. ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. This appeal filed by the Revenue is directed against the order of Ld. CIT(A)-XIV, Ahmedabad dated 27.07.2012 pertaining to A.Y. 2009-10. 2. The substantive grievance of the revenue read as under:- (1) The Ld. Commissioner of Income-Tax (Appeals)-XIV, Ahmedabad has .....

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nce in violation of Rule 46A of the I.T. Rules. 3. The assessee is engaged in the business of manufacturing and job work in electronically engraved copper rollers and trading of pipes, circles etc. 4. While scrutinizing the return of income, the A.O. found that the assessee has claimed deduction u/s. 80IA of the Act at ₹ 4,77,722/-. The income was generated on account of Wind Mill business. The A.O. was of the firm belief that the profit from the eligible business for the purpose of determ .....

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377; 10,00,000/- under the head quantity discount. The A.O. was of the firm belief that this claim relates to the prior period expenditure and, therefore, disallowed the same and completed the assessment. 6. Assessee carried the matter before the ld. CIT(A) and reiterated its claim of deduction u/s. 80IA of the Act. After considering the facts and the submissions in the light of the relevant provisions of the Act, the ld. CIT(A) held as under:- 2.3 Decision: I have carefully considered the asses .....

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Court in the case of Velayuddhaswamy Spinning Mills Pvt. Ltd. Vs. ACIT [231 CTR 0368]. After considering all the facts, it is noted that the appellant company had installed Wind Mills in the previous year relevant to A. Y. 2006-07. Initially there were losses in the wind mill business and the same have been claimed as set off against the income from other business. There were profits in A. Y. 2008-09, but the appellant did not claim the deduction in that year by mistake. The claim has been made .....

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of the above mentioned facts, the ratio given by Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills Pvt. Ltd.(Supra) would be squarely applicable. While deciding the issue in that case, the Hon'ble High Court has also considered the decision of Special Bench of ITAT in the case of ACIT vs. Goldmine Shares and Finance P. Ltd. [116 TTJ 705 (Ahd)(SB)], which has been relied by A.O., the Hon'ble Court has examined the provisions of section 80IA and has observed that t .....

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urther held that the revenue cannot look backward to find out whether there was any losses of earlier years and bring forward the same notionally even though it were set off against other income of the assessee. In the case of the appellant, there is no dispute that the losses incurred in earlier years were already set off and adjusted against the other income in that year. The claim of deduction u/s. 80IA has been made for the first time in the current assessment year and, therefore, the findin .....

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ng 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 of an amount equal to hundred per cent, of the profits and gains derived from such business for ten consecutive assessment years. (2) The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any fen consecutive assessment years out of fifteen years begin .....

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rise carrying on the business of (i) developing, or (ii) operating and maintaining, or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely :- (a) it is owned by a company registered in India or by a consortium of such companies (or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act); (b) it has entered into an agreement with the Central Government or a State .....

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s of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made." 17. From a reading of sub-section (1),it is .....

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essment years. Deduction is given to eligible business and the same is defined in sub-section (4). Sub-section (2) provides option to the assessee to choose 10 consecutive assessment years out of 15 years. Option has to be exercised, if it is not exercised, the assessee will not be getting the benefit. Fifteen years is outer limit and the same is beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure activity, etc. Subsection (5) deal .....

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it overrides all the provisions of the Act and other provisions are to be ignored; (2) lt is for the purpose of determining the quantum of deduction; (3) For the assessment year immediately succeeding the initial assessment year; (4) lt is a deeming provision ; (5) Fiction created that the eligible business is the only source of income; and (6) During the previous year relevant to the initial assessment year and every subsequent assessment year. 18. From a reading of the above, it is clear that .....

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Revenue to look backward and find out if there is any loss of earlier years and bring forward nationally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business. Once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it nationally. A fiction created in sub-section does not contemplates to bring set off amount nationally. The .....

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sessment year was 2004-05. During the relevant period, there were no unabsorbed depreciation or loss of the eligible undertakings and the same were already absorbed in the earlier years. There is a positive profit during the year. The unreported judgment of this court cited supra considered the scope of sub-section (6) of section 80-1, which is the corresponding provision of subsection (5) of section 80-IA. Both are similarly worded and, therefore, we agree entirely with the Division Bench judgm .....

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sment year 1984-85, the recomputation of income from the new industrial undertaking by setting off the carry forward of unabsorbed depreciation or depreciation allowance from previous year did not simply arise and on the finding of fact noticed by the Commissioner of Income-tax (Appeals), which has not been disturbed by the Tribunal and challenged before us, there was no error much less any error apparent on the face of the record which could be rectified. That question would have been germane o .....

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f computing admissible deductions thereunder. In view thereof, we are of the opinion that the Tribunal has not erred in holding that there was no rectification possible under section 80-1 in the present case, albeit, for reasons somewhat different from those which prevailed with the Tribunal. There being no carry forward of allowable deductions under the head depreciation or development rebate which needed to be absorbed against the income of the current year and, therefore, recomputation of inc .....

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