9911796707
TMI Blog2022 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in holding that notices issued u/s.148 of the Act were issued beyond four years from the end of relevant assessment years and are barred by time and are without jurisdiction in spite of the fact that AO received a third-party information which was not available earlier. 2. On the facts and circumstances of the case, the Ld. CIT(A), Nagpur has erred in deleting the addition 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 consumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the norms and criteria of the eligibility of CPP for claim of deduction u/s.80IA of the Act. On the contrary, the CIT(Appeals) observed that the CPP of the assessee company which was set-up for generation and distribution of power was a new, separate and a distinct industrial undertaking as contemplated u/s.80IA(1) of the Act, and was entitled for deduction of an amount 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kdrop of the orders of the lower authorities and the material available on record, we find no infirmity in the view taken by the CIT(Appeals). In so far the view taken by the CIT(Appeals), that as there was no failure on the part of the assessee company in fully and truly disclosing all the material facts that were necessary for its assessment, therefore, assessment having 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had fully and truly disclosed all the material facts in its return of income on the basis of which assessment u/s. 143(3) of the Act, dated 14.03.2014 was earlier framed in its case, therefore, as observed by the Ld. CIT(Appeals), and rightly so, notice u/s.148 of the Act dated 25.10.2017 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been further accepted by the Department, as no further appeal was preferred for AY 2006-07, AY 2007-08 and AY 2009-10. The issue of availability of the deduction 801A has been agreed and allowed in principle by all foras. On above facts, the final view of the Department was that the claim u/s.801A was allowable and accordingly, the Revenue has allowed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our aforesaid observations uphold the order passed by the CIT(Appeals) as regards the aforesaid issue in hand. Thus, the Ground of appeal No.2 raised by the Revenue is dismissed in terms of our aforesaid observations. 10. In the result, appeal of the Revenue in ITA No.268/NAG/2018 for the assessment year 2010-11 is dismissed in terms of our aforesaid observations. ITA No.269/NAG/2018 A.Y.2011-12 11. As the facts and the issues involved in the present appeal remains the same as were there before us in the aforementioned appeal of the revenue in ITA No.268/NAG/2018 for assessment year 2010-11, therefore, our order therein passed while disposing off the said appeal shall apply mutatis-mutandis for disposing off the present appeal in ITA No.269/NAG/2018 for the assessment year 2011-12. Accordingly, in this case also the Grounds of appeal No.(s) 1 and 2 raised by the Revenue are dismissed. 12. In the result, appeal of the Revenue in ITA No. 269/NAG/2018 for the assessment year 2011-12 is dismissed in terms of our aforesaid observations. 13. Resultantly, both the appeals of the Revenue are dismissed in terms of our aforesaid observations. Order pronounced in the open Court on 29th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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