TMI Blog2019 (9) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly we do not find any reason to interfere in the finding of the learned CIT (A). Hence, the additional ground of appeal of the assessee is dismissed. Disallowance under section 80JJA - HELD THAT:- It is very clear that the purpose behind the provision of section 80JJA of the Act was to extend the benefit to the organisations from the commencement of business. It is beyond doubt that the assessee commenced its business much before the introduction of the provisions of section 80JJA of the Act in the statute. There was no mention under the provisions of section 80JJA of the Act for extending benefit to the assessee which have commenced their business much before the introduction of such provision. Thus, the provision itself vividly reflects the intent of lawmakers that the benefit of section 80JJA shall begin from the commencement of the business. We are also conscious to the fact that the learned AR for the assessee has placed various orders before the authorities below but on perusal of the same, we note that none of them is applicable to the case on hand. We also note that the assessee has also enjoyed the benefit of deduction under section 80 IA of the Act afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -04 u/s.147 of the I.T. Act, 1961. Note: 1. This ground is already taken up in Form 36 before Hon ble ITAT, however the same was not up before CIT(A) 2. Since, this ground is affecting jurisdiction and arising out of assessment order, the same can be taken up at any time. 3. It has also been held by various courts that any ground which arises out of assessment and other orders can be taken up before ITAT for the first time. First, we take up the additional ground of appeal. The issue raised by the assessee in additional ground of appeal is that the learned CIT (A) erred in quashing the assessment framed under section 147 of the Act. 3. At the outset, the Ld. AR for the assessee before us submitted that the additional ground raised vide letter dated 07/09/2011 is legal in nature, and all the relevant details in respect of such ground are available on record. Accordingly, the Ld. AR prayed before us for the admission of the additional ground of appeal. 4. On the other hand, the Ld. DR did not raise any objection on the admission of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the Tribunal had jurisdiction to examine a question of law which arose from the facts as found by the lower authorities and having a bearing on the tax liability of the assessee . In view of the above, we admit the additional ground of appeal raised by the assessee and proceed to adjudicate the same. 6. The ld. AR at the outset has challenged the assessment framed under section 147 of the Act on the ground that it was initiated on the basis of the change of opinion after verification of same set of documents. 6.1 The learned AR also submitted that the reopening was made under section 147 of the Act after 4 years despite the fact that the assessee has disclosed truly and fully all the material facts in the return of income. 7. However, the learned DR for the Revenue before us relied on the order of the authorities below. 8. We have heard both the parties and perused the records, especially the impugned orders and the case laws cited therein. Before we proceed to enquire whether the reopening under section 147 of the Act was valid as per the provisions of law, it is pertine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not find any reason to interfere in the finding of the learned CIT (A). Hence, the additional ground of appeal of the assessee is dismissed. The issue raised in the 1st ground of appeal is that the learned CIT (A) erred in confirming the order of the AO by denying the disallowance under section 80JJA of the Act. 10. The facts in brief are that the assessee in the present case is a limited company and engaged in the business of collecting and processing or treating of biodegradable (agricultural) waste and making briquettes for fuel. The assessee in the year under consideration has claimed deduction under section 80JJA of the Act amounting to ₹3,94,891.00 only. 10.1 The assessee in support of its claim for the deduction under section 80-JJA of the Act submitted that it started its business/ commercial activities from the assessment year 1999-2000. The assessee also submitted that prior to the assessment year 1999-2000, there were lot of grievances by the customers about the quality of the machines designs and its manufacturing process. Therefore, there were lots of dismissals of the orders. As such after persisting effor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 1998-99 in the instant case. Thus the learned CIT (A) confirmed the order of the AO. Being aggrieved by the order of the learned CIT (A) the assessee is in appeal before us. 13. The learned AR before us filed two paper books running from pages 1 to 53 and 1 to 83 and reiterated the submissions as made before the authorities below. 14. On the other hand the learned DR vehemently supported the order of the authorities below by reiterating the findings contained therein. 15. We have heard the rival contentions of both the parties and perused the materials available on record. The limited issue before us relates whether the assessee begun the commercial production with effect from the assessment year 1994- 95 or from the assessment year 1999- 2000 as claimed by the assessee. In this regard, we note that the assessee has made sales, claimed depreciation effective from assessment year 1994-95 as well as it has claimed deduction under section 80 IA of the Act in the assessment year 1997 -98. A detailed chart about the activities carried out by the assessee right from its inception such as sales, depreciation, gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is very clear that the purpose behind the provision of section 80JJA of the Act was to extend the benefit to the organisations from the commencement of business. It is beyond doubt that the assessee commenced its business much before the introduction of the provisions of section 80JJA of the Act in the statute. There was no mention under the provisions of section 80JJA of the Act for extending benefit to the assessee which have commenced their business much before the introduction of such provision. Thus, the provision itself vividly reflects the intent of lawmakers that the benefit of section 80JJA shall begin from the commencement of the business. We are also conscious to the fact that the learned AR for the assessee has placed various orders before the authorities below but on perusal of the same, we note that none of them is applicable to the case on hand. We also note that the assessee has also enjoyed the benefit of deduction under section 80 IA of the Act after the commencement of production for a period of 10 years. Accordingly, we do not find any infirmity in the order of the authorities below. Hence the ground of appeal of the assessee is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or substitute the above grounds of appeal. 18. At the outset we note that, the learned AR for the assessee did not advance any argument at the time of hearing on ground No. 1 i.e. challenging the reopening under section 147 of the Act, therefore we dismiss the same as not pressed. The issue raised by the assessee in ground No. 2 and 3 is that learned CIT (A) erred in charging tax under section 115 JB of the Act along with the interest under section 234A and 234B of the Act. 19. The AO during the assessment proceedings observed that there is nil income under the normal computation of income whereas there is a book profit amounting to ₹31,52,571 which was liable to tax under section 115 JB of the Act. But the assessee did not offer any tax under the provision of section 115 JB of the Act. Therefore, the AO worked the liability of tax under the provisions of section 115 JB of the Act along with the interest under section 234A/B of the Act. 20. Aggrieved assessee preferred an appeal to the learned CIT (A) who has confirmed the order of the AO. Being aggrieved by the order of the learned CIT-A, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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