TMI Blog2020 (10) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of the assessee for an amount of ₹ 14,40,471/- under Section 14A of the Act has been remitted to the Assessing Officer to decide the claim in accordance with law. The aforesaid concurrent findings of fact recorded by the Tribunal by no stretch of imagination can be said to be either perverse or based on no evidence. No element of perversity has been brought to our notice, therefore, it is not necessary for us to answer the aforesaid substantial question of law. - I.T.A. NO. 450 OF 2013 - - - Dated:- 8-10-2020 - THE HON'BLE MR. JUSTICE ALOK ARADHE And THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD FOR THE PETITIONER : Mr. K.V. ARAVIND, ADV. FOR THE RESPONDENT : Ms. JINEETHA CHATERJEE, ADV., FOR Mr. S. PARTH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which continued in the current year and therefore was correct in disallowance under Section 14A of the Act? 2. Facts leading to filing of the appeal briefly stated are that the assessee is a company engaged in the business of manufacture and sale of aluminum extrusions and generation of wind energy. The assessee filed its return of income on 25.09.2008 for the Assessment Year 2008-09 which was assessed under Section 143(3) of the Act on a total income of ₹ 69,30,00,030/-. The Assessing Officer by an order dated 01.10.2010 disallowed the claim of the assessee under Section 80IA and Section 14A of the Act. Being aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) who by an order dated 30.03.2012 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court as well as by this court. It is also argued that Assessing Officer has recorded reasons / satisfaction regarding incorrectness of claim of expenditure of the assessee under Section 14A of the Act and therefore, the mandate contained in the decision in 'GODREJ BOYCE MFG. CO. LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX, RANGE 10(2), MUMBAI', (2010) 328 ITR 81 stands satisfied. Alternatively it is submitted that even if the Tribunal was of the opinion that the satisfaction as required under Section 14A of the Act has not been complied with as held by Bombay High Court in Godrej Boyce Mfg. Co. Ltd., supra, the matter ought to have been remitted to the Assessing Officer as was done by Bombay High Court in para 73 of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . SWARNAGIRI WIRE INSULATIONS (P.) LTD', (2013) 213 TAXMAN 218 and decision in 'COMMISSIONER OF INCOME TAX AND ANOTHER VS. MICROLABS LTD.', (2016) 383 ITR 490 (KARN). It is also urged that there is no question of making any disallowance of expenditure under Section 14A as the assessee was already having it sown surplus fund and the Commissioner of Income Tax (Appeals) as well as the Tribunal have allowed the claim under Section 14A of the Act to the extent of ₹ 26,61,011/- only after being satisfied that the aforesaid amount was invested from the assessee's owned capital and the Tribunal has remitted the matter to the Assessing Officer to examine the claim under Section 14A of the Act in respect of ₹ 14,40,471/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Whether the Tribunal was correct in holding that only the profit making power generating unit of the assessee should be taken into account and not the loss making units in computing the total income of the assessee for its eligible business to allow deduction u/s 80IA of the Act? 2. Whether the Tribunal was correct in holding that the deduction u/s 80IA windmill wise instead of eligible business wise, contrary to the provision of section 80IA(1) and 80IA(5) and without taking in account the fact that generation of energy is one undertaking/enterprise and the windmills are units of the same undertaking/enterprise? 3. When the matter was taken up today, learned counsel for the respondent submitted that the issue involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s perverse. [SEE: 'SUDARSHAN SILKS SAREES VS. CIT', 300 ITR 205 SCC @ 211 and 'MANGALORE GANESH BEEDI WORKS VS. CIT', 378 ITR 640 (SC) @ 648]. A three judge bench of the Supreme Court in 'SANTOSH HAZARI VS. PURSHOTTAM TIWARI', (2001) 3 SCC 179 while dealing with the expression 'to be a question of law involving in the case' held that 'to be a question of law involving in the case', there must be first a foundation for it laid in pleadings and the questions emerged from sustainable findings of fact arrived at by courts of fact and it must be necessary to decide that question of law for a just and proper decision of the case. It has been held that entirely a new point raised for the first time before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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