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TMI Blog2019 (12) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 4,82,22,557/-. The ld.AO had issued show cause notice inviting its explanation on the ground that the assessee-company has been engaged in the business of generation of electricity since Asstt.Year 2003-04, and it has only claimed deduction in the year 2009-10 and 2010-11, 2011-12 and 2012-13 in the return of income. According to the AO, in earlier years, the loss occurred mainly on the ground of set off of depreciation in respect of wind-mill business have been adjusted against the income from regular business, such as manufacturing of steel and tubes. He was of the opinion that loss of earlier years has to be brought forward notionally and adjust against the profit of business of generating electricity. The assessee filed its reply which has been considered by the AO. However, after putting reliance upon sub-section (5) of section 80IA, the ld.AO has disallowed the claim of the assessee. Dissatisfied with the disallowance, the assessee carried the matter in appeal before the ld.CIT(A). It has raised an additional ground of appeal also. It contended that as far as deduction claimed by the assessee at Rs. 4,82,22,557/- is concerned, this issue is covered in its favour by ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial assessment year or any subsequent assessment year. It nowhere defines as to what is the initial assessment year. Prior to 1st April 2000, the initial assessment year was defined for various types of eligible assessees under Section 80IA(12).However, after the amendment brought in statute by the Finance Act, 1999, the definition of "initial assessment year" has been specifically taken away. Now, when the assessee exercises the option of choosing the initial assessment year as culled out in subsection (2) of Section 80IA from which it chooses its 10 years of deduction out of 15 years, then only the losses of the years starting from the initial assessment year alone are to be brought forward as stipulated in section 80IA(5). The loss prior to the initial assessment year which has already been set-off cannot be taught forward and adjusted into the period of ten years from the initial assessment year as contemplated or chosen by the assesses. It is only when the loss have been incurred from the initial assessment year, then the assessee has to adjust loss in the subsequent assessment years and it has to be computed as if eligible business is the only source of income and then only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing filed by the assessee. Since the assessee has not filed revised return, therefore, its additional claim cannot be entertained. The finding recorded qua this addition, which is under challenge before the Tribunal reads as under: "5.4 As to the additional ground wherein further deduction of Rs. 6,84,59,347/-u/s 80IA(4)(iv) of the Act relying upon the order of the Hon'ble ITAT, Ahmedabad in the case of ACIT Vs Harsh Engineers Ltd (supra) is being claimed, it is seen that during the AY 2012-13 the appellant had taken similar additional ground for claim of deduction of Rs. 9,82,17,328/- u/s 80IA and the contention of the appellant was examined thoroughly by my predecessor CIT (Appeal) and the additional ground was admitted holding that "After considering the authorities relied upon by the Ld AR and in the view of the fact that the Ld AO has objected to the admission of the additional ground only on the fact that further appeal in the case ofM/s Harsh Engineering has been filed by the department, the additional ground has raised by the appellant is admitted in view of clear mandate contenting the High Court decision in M/s Arvind Mills Ltd." Following the same, the additional grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as allowed appeal of the assessee vide order dated 14.8.2018. He placed on record copy of the Tribunal's order. On the strength of this order, he contended that finding of the ld.CIT(A) in the present assessment year is based on her predecessor's finding in the Asstt.Year 2012-13. That finding has already been set aside by the Tribunal, and therefore, order of the ld.CIT(A) on this issue is not sustainable. The ld.DR, on the other hand, was unable controvert this submission of the ld.counsel for the assessee. 6. We have duly considered rival submissions and gone through the record carefully. A perusal of order of the ld.CIT(A) would reveal that the ld.CIT(A) has basically relied upon the finding of her predecessor in the Asstt.Year 2012-13. When that finding fallen for consideration before the Tribunal, then the Tribunal did not concur with the finding, and reversed it by recording the following finding: "6. Aggrieved by the denial of the additional claim which has the effect of reducing the assessed income below the return of income, the assessee knocked the door of Tribunal. 7. The learned AR for the assessee submitted at the outset that the dispute in the present case is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of such additional ground which has the effect of reducing the assessed income below the returned income is not permissible. The learned AR submitted that such premise for denial of lawful relief by the CIT(A) is squarely at odds with the long line of judicial precedents including the decision of the Hon'ble Gujarat High Court in the case of Gujarat Gas Co. Ltd. vs. JCIT 245 ITR 84 (Guj); CIT vs. Milton Laminates Ltd. Tax Appeal No. 1022 of 2010 judgment dated 24.01.2012; CIT vs. Arvind Mills Ltd. Tax Appeal No. 1407 of 2011 judgment dated 05.07.2012; CIT vs. Pruthvi Brokers & Shareholders Pvt. Ltd. [2012] 349 ITR 336 (Bom.) etc. The learned AR thus submitted that the additional claim towards enhanced deduction eligible under s.80IA(4) of the Act be directed to be allowed to the assessee in accordance with law. 8. The learned DR, on the other hand, relied upon the order of the CIT(A). 9. We have carefully considered the rival submissions and perused the orders of the authorities below as well as the case laws cited. The central issue in the present appeal is whether the claim of the assessee towards higher quantification of deduction under s. 80IA(4) of the Act c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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