TMI Blog2022 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... otice u/s.148 issued beyond a period of four years from the end of the relevant assessment year, i.e., A.Y.2010-11 was clearly barred by limitation and without jurisdiction. We, thus, in terms of our aforesaid observations concur with the view taken by the CIT(Appeals). Thus, the Ground of appeal No.1 raised by the Revenue is dismissed. Disallowance claim for deduction u/s.80IA for the reason, that it had by trading surplus power generated to MSEDCL had contravened the provisions of section 80IA - CIT-A allowed the claim - On a perusal of the order of the CIT(Appeals), we find that he had categorically observed that the assessee company has established a separate industrial undertaking, viz. power plant for generation and distribution of electricity which was supplied to its own steel plant, as well as transferred/sold to MSEDCL. It was observed by him that the aforesaid facts had been examined year after year of the order of the Assessing Officer, Addl. CIT, CIT(Appeals) and Hon ble ITAT, which thereafter had been accepted by the Department as it had chosen not to prefer any further appeal for the assessment year(s) 2006-07, 2007-08 , 2008-09 and 2009-10. Also, the CIT(Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the AO disallowing the claim u/s.80IA of the Act since the assessee contravened the provisions of section 80IA of the Act by trading the surplus power generate to MSEDCL. 3. Any other ground which may be raised during the course of hearing. 2. Succinctly stated, the assessee company which is engaged in the business of manufacturing and sale of special steel products, had filed its return of income for assessment year 2010-11 on 25.09.2010, declaring an income of Rs.82,49,30,700/-. Original assessment was, thereafter, framed by the Assessing Officer vide his order passed u/s. 143(3) of the Act, dated 14.03.2014 determining the total income of the assessee company at Rs.88,64,76,420/-. Observing, that the assesee company which was, inter alia, having power generation plant for captive consumption had transmitted the excess power so generated to Maharashtra State Energy Distribution Company Ltd. (for short MSEDCL), the Assessing Officer, holding a belief that the assessee had wrongly raised a claim for deduction u/s. 80IA(4)(iv) of the Act qua the sale of power generated by its power plant to MSEDCL, thus, reopened its case u/s.147 of the Act. Accordingly, the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal to 100% of the profits and gains derived by it from such business for ten consecutive assessment years out of fifteen years beginning from the year in which the undertaking begun to operate as provided u/s.80IA(2) of the Act. It was noticed by the CIT(Appeal) that revenue of the CPP was from assessee s own steel plant and from MSEDCL. It was observed by the CIT(Appeals) that the assessee s claim for deduction u/s.80IA of the Act from the assessment year 2005-06 (i.e 1st year of claim of deduction by the assessee), and onwards, was either allowed by the Department, and as and where it was declined, the same was restored on appeal by the CIT(Appeals)/ITAT. Apart from that, it was observed by the CIT(Appeals) that the assessee s entitlement for claim of deduction u/s.80IA of the Act was duly considered and accepted by the Assessing officer while framing of the original assessment by him u/s. 143(3) of the Act. Backed by the aforesaid facts, the CIT(Appeals) was of the view that the Assessing Officer had reopened the case of the assessee u/s.147 of the Act merely on the basis of a change of opinion , i.e, on the basis of the same facts that were borne on record, which was not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving earlier been framed in its case u/s. 143(3) of the Act, thus, could not have been reopened beyond a period of four years from the end of the relevant assessment year, i.e., A.Y.2010-11, the same for the sake of clarity is culled out as under : (i) As per proviso to sec.147, notice for reopening of assessment made u/s.143(3), issued beyond four years from the end of respective assessment years are barred by time, especially because appellant had disclosed all material facts fully and truly during section 143(3) assessment proceedings in the years in question and all earlier years and it is after considering all those facts, the AO has allowed the claim u/s.80IA for all the years, including the present years in appeal. There is no material with the A.O. to show or allege that the facts disclosed were either not full or true. The appellant, having disclosed all material facts fully and truly, there is no further burden on the appellant to show as to what inference should be drawn by A.O. In such a case, the issue of notice u/s.148 beyond four years is barred by time and without jurisdiction. (ii) The appellant has drawn support from the decisions of Hon'ble Courts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment year, i.e., A.Y.2010-11 was clearly barred by limitation and without jurisdiction. We, thus, in terms of our aforesaid observations concur with the view taken by the CIT(Appeals). Thus, the Ground of appeal No.1 raised by the Revenue is dismissed. 8. We shall now advert to the claim of the Revenue that the CIT(Appeals) had erred in vacating the disallowance of the assessee s claim for deduction u/s.80IA of the Act that was made by the Assessing Officer, for the reason, that it had by trading surplus power generated to MSEDCL had contravened the provisions of section 80IA of the Act. We find that the facts and the issue qua the aforesaid grievance of the Revenue is a recurring issue which was duly appreciated by the CIT(Appeals) while adjudicating the same. On a perusal of the order of the CIT(Appeals), we find that he had categorically observed that the assessee company has established a separate industrial undertaking, viz. power plant for generation and distribution of electricity which was supplied to its own steel plant, as well as transferred/sold to MSEDCL. It was observed by him that the aforesaid facts had been examined year after year, as enumerated in Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 801A claim for all the earlier years. It will thus be seen that the appellant's claim for deduction U/s.801A(4)(iv) stands fully allowed for A.Y. 2005-06, 2006-07, 2007-08, 2008-09 and 2009-10 by relevant orders referred to above and that they are final, as submitted by the appellant, and are holding the field. (ii) Now on the very same facts, the A.O. on change of opinion wants to hold that (i) the power plant was supposed to supply power to steel plant only and not for trading of power generated by it, and since it is doing trading by supplying and banking the power with MSEDCL, it is a violation of sec. 80IA(4)(iv), and (ii) the power plant is an integral part of steel plant and not a separate Industrial Unit. This assumption of A.O. is glaringly contrary to the facts established on record, and referred to and accepted by A.O. himself in assessment orders, order of C.I.T.(A) and orders of Tribunal (reference is made to 1.T.A.T.'s order for A.Y. 2006-07, para 32) and original asst. order u/s.143(3) dt.24.03.2014 for A.Y.2011-12 at para 3, and in almost all orders. The power plant is established in a separate building. It has its own separate and independent machiner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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