TMI Blog2023 (2) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of provisions of Section 80IA(12A) of the Act and granted deduction u/s.80IA of the Act to the successor company. For the sake of brevity, the elaborate observations made by this Tribunal on merits is not reproduced hereunder. Hence, even on merits, the assessee is entitled for deduction u/s.80IA of the Act in the facts and circumstances of the instant case. Accordingly, the ground Nos. 1-4 raised by the assessee are allowed. TDS credit - This issue requires factual verification by the ld. AO. Hence, the ld. AO is hereby directed to decide the issue in accordance with law. - ITA No.1303/Mum/2021 - - - Dated:- 21-2-2023 - Shri M.Balaganesh, Accountant Member And Smt Kavitha Rajagopal, Judicial Member For the Assessee : Shri Nitesh Joshi For the Revenue : Ms. Richa Gulati ORDER PER M. BALAGANESH (A.M): This appeal in ITA No. 1303/Mum/2021 for A.Y.2010-11 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-47, Mumbai in appeal No.CIT(A)-47/10004/2018-19 dated 12/05/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.154 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 27/03/2018 by the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions for the last six months of the F.Y.2009-10 relevant to A.Y.2010-11. SCL filed its return of income u/s.139(1) of the Act for A.Y.2010-11 on 30/09/2010 declaring total income of Rs.429,82,41,920/-. Subsequently SCL filed revised return of income on 16/03/2012 declaring total income of Rs.428,83,81,880/-. The original assessment was completed u/s.143(3) of the Act on 26/03/2013 determining total income of the assessee at Rs.461,41,39,653/-. The assessee filed a rectification application u/s.154 of the Act before the ld. AO to set right the short TDS credit granted by the ld.AO in the assessment framed u/s.143(3) of the Act on 26/03/2013. This rectification application was disposed of by the ld.AO vide order u/s.154 of the Act dated 10/03/2014 by granting further TDS credit. 3.1. The assessee company was incorporated on 04/09/2009 on account of demerger of cement business of M/s. Grasim Industries Ltd. Accordingly, the assessee being a resulting company, had claimed deduction of Rs.74,39,06,091/- u/s.80IA of the Act on 7 units (thermal plants) transferred after 01/10/2009 from Grasim Industries Ltd. (demerged company) and also on Rail systems, in accordance with the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the ld. CIT(A). 4. We have heard rival submissions and perused the materials available on record. We find that the present appeal is concerned with order dated 27.03.2018 passed by the ld.AO under section 154 of the Income-tax Act (the Act), withdrawing the assessee's claim for deduction under section 80-IA of the Act in respect of profits of the Thermal Power Plant by invoking the provisions of sub-section (12A) thereof. The Thermal Power Plants in respect of which the said deduction is claimed were originally set-up as a part of the Cement Undertakings by Grasim Industries Limited. As a part of the demerger scheme, the said Thermal Power Plants along with the Cement Undertakings were transferred to Samruddhi Cement Limited (being the assessee herein) w.e.f. 01/10/2009. The present appeal is being pursued by Ultratech Cement Ltd. as the amalgamated company of the assessee. According to the ld. AO, section 80-IA(12) of the Act enables the resulting company, being the assessee herein, to claim deduction under the said section in respect of the remaining period for which deduction is to be allowed. 4.1. According to ld. AO, Section 80IA(12) is an enabling provision. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al power plants after making some disallowance on account of reallocation of head office expenses and treatment of part of its income as ineligible for such deduction. Hence, for all practical purposes, the assessment got completed on 26/03/2013 for the impugned assessment year. Hence, any rectification order i.e. required to be passed either suo moto by the ld. AO or at the behest of the assessee, could be passed upto 31/03/2017 i.e. four years from the end of the financial year in which assessment was completed, in terms of provisions of Section 154(7) of the Act. In the instant case, the assessee was not granted TDS credit for the full amount and interest u/s.234C of the Act was not correctly charged in the assessment framed u/s.143(3) of the Act on 26/03/2013. Accordingly, the assessee had filed a rectification application u/s.154 of the Act seeking for TDS credit and for rectification of interest excessively charged u/s.234C of the Act. The ld.AO rectified the said mistakes by passing an order u/s.154 of the Act on 10/03/2014. The said order deals only with the quantum of TDS credit to be allowed to the assessee and consequently charging of interest u/s.234C of the Act. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antham Raghaviah vs. Third Additional Income Tax Officer, Madras reported in 49 ITR 314 as under:- Once an order of rectification is passed the assessment itself is modified and what remains is not the order of rectification, but only the assessment as rectified. 4.6. In any case, we find that eligibility of claim of deduction u/s.80IA of the Act was not an issue of dispute in rectification proceedings u/s.154 of the Act dated 10/03/2014. While this is so, how the time limit for making further rectification order u/s.154 of the Act wherein the deduction u/s.80IA of the Act was sought to be denied, could be reckoned from this first section 154 order dated 10/03/2014. In all fairness, the time limit should be reckoned only from the original assessment order dated 26/03/2013 as that was the order in which deduction u/s.80IA of the Act was granted to the assessee and the department is only trying to disturb that claim of deduction u/s.80IA of the Act in the impugned 154 proceedings dated 27/03/2018. 4.7. We further find that the ld. AR placed reliance on the decision of the Hon ble Apex Court in the case of CIT vs. Alagendran Finance Ltd reported in 293 ITR 1 (SC). That ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess interest charged u/s.234C of the Act and the subject matter of impugned section 154 proceedings dated 27/03/2018 was denial of deduction u/s.80IA of the Act. Hence, the reliance placed by the ld. DR on the decision of the Hon ble Apex Court in Hind Wires Ltd. referred to supra becomes factually distinguishable and does not come to the rescue of the Revenue. In fact in the factual matrix of the assessee s case before us, the decision rendered by the Hon ble Apex Court in the case of CIT vs. Alagendran Finance Ltd reported in 293 ITR 1 and the decision of the Hon ble Madras High Court referred to supra advances the case of the assessee. 4.9. Our aforesaid observation and view is further fortified by the decision of the Co-ordinate Bench of this Tribunal in the case of Ashu Engineers and Plastics Pvt. Ltd. vs. DCIT in ITA No.3453/Mum/2010 for A.Y.2001-02 dated 29/04/2011 wherein it is held as under:- 9. In view of the above discussions, the hyper technical plea of the learned Departmental Representative is only fit to be rejected. Learned Departmental Representative as indeed the authorities below have also relied on in the case of Hind Wire Industries Ltd v. CIT,(supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 80IA(12A) of the Act, is clearly barred by limitation. Accordingly, the issue framed hereinabove in question a above is decided in favour of the assessee. 4.11. In any case, even on merits, the ld. AR placed on record the copy of decision of this Tribunal in the case of Ultratech Cement Ltd. vs. DCIT for A.Y.2011-12, 2012-13, 2013-14 and 2014-15 in ITA Nos.1412,1413,2461,2462,2871,2872,2873,3764/Mum/2018 and CO Nos. 129,130,118 155/Mum/2019 vide order dated 14/12/2021 wherein this Tribunal had passed an elaborate order after due consideration of provisions of Section 80IA(12A) of the Act and granted deduction u/s.80IA of the Act to the successor company. For the sake of brevity, the elaborate observations made by this Tribunal on merits is not reproduced hereunder. Hence, even on merits, the assessee is entitled for deduction u/s.80IA of the Act in the facts and circumstances of the instant case. Accordingly, the ground Nos. 1-4 raised by the assessee are allowed. 5. The ground No.5 raised by the assessee is seeking TDS credit. This issue requires factual verification by the ld. AO. Hence, the ld. AO is hereby directed to decide the issue in accordance with law. ..... 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