ACIT, Coimbatore V. M/s. Bannari Amman Sugars Ltd., Coimbatore

ITA 1798/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64568 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO. 1798/MDS/2012 ASST. YEAR : 2009-10 THE ASST . COMMISSIONER OF INCOME TAX, COMPANY CIRCLE I(2), COIMBATORE. (APPELLANT) V. M/S . BANNARI AMMAN SUGARS LTD, 1212, TIRUCHY ROAD, COIMBATORE 18. PAN : AAACB8933G. (RESPONDENT) APPELLANT BY : DR S. MOHARANA, CIT, DR RESPONDENT BY : MR. SAROJ KUMAR PARIDA, ADVOCA TE DATE OF HEARING : 29 NOV 2012 DATE OF PRONOUNCEMENT : 29 NOV 2012 O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, CO IMBATORE DATED 31.7.2012 IN APPEAL NO.352/11-12 FOR THE ASST. YEAR 2009-10. THE ONLY GRIEVANCE OF THE DEPARTMENT IS THAT THE COMMIS SIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE ASSE SSEE IS ENTITLED TO ITA 1798/MDS/12 2 DEDUCTION UNDER SEC.80IA OF THE I.T. ACT IN RESPECT OF THE THREE POWER GENERATION UNITS SEPARATELY. 2. AT THE TIME OF HEARING THE COUNSEL FOR THE ASSE SSEE SUBMITS THAT THE ISSUE IN APPEAL HAS BEEN DECIDED B Y THIS TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER AYS.IE., FROM THE A SST. YEAR 2004-05 TO 2008-09 , COPIES OF ORDERS ARE PLACED ON RECORD. THE DEPARTMENTAL REPRESENTATIVE FAIRLY CONCEDED THAT TH IS ISSUE HAS BEEN HELD IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER ASST. YEARS AND APPEALS WERE FILED BEFO RE THE HIGH COURT AGAINST THE ORDERS OF THE TRIBUNAL. 3. WE HAVE HEARD RIVAL SUBMISSIONS, PERUSED THE OR DERS OF LOWER AUTHORITIES AND THE ORDERS OF THIS TRIBUNAL I N ASSESSEES OWN CASE WHICH ARE PLACED ON RECORD. THE COMMISSIONER OF INCOME TAX (APPEALS), BY FOLLOWING THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE HELD THAT THE THREE CO-POWER GENERATION UNITS ARE INDEPENDENT UNITS AND DEDUCTION UNDER SEC.80IA OF THE ACT HAS T O BE ALLOWED SEPARATELY FOR THESE UNITS WITHOUT CLUBBING THE PRO FITS OF WIND MILL DIVISION. THE COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- ITA 1798/MDS/12 3 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE MATE R IALS AVAILABLE ON RECORD . THE APPELLANT COMPANY HAS FOUR INDIVIDUAL INDUSTRIAL UNDE R TAKINGS FOR GENERATING POWER. AS FAR AS THE 80LA DEDUCTION IS CONCERNED THE COMPANY HAD CLA IMED DEDUCTION IN RESPECT OF 20MW TAMIL NADU CO-GENERATI ON, 16MW KARNATAKA CO-GENERATION AND 20MW KARNATAKA CO-GENER ATION UNITS AND IN RESPECT OF THESE THREE UNDERTAKINGS AUDIT RE PORT I N FORM 10CCB WAS FIELD . THE APPELLANT HAS NOT FILED ANY AUDIT REPORT UNDER 10CCB FOR THESE WIND ENERGY UNITS FOR THE YEAR ENDE D 31 . 3.2009, THE ASSESSEE COMPANY HAS MAINTAINED SEPARATE BOOKS OF ACCOUNTS AND PREPARED THE SEPARATE PROFIT AND LOSS ACCOUNT A ND BALANCE SHEET FOR EACH OF THE THREE POWER GENERATION UNITS WHICH ARE ELIGIBLE FOR DEDUCTION U/S.80IA. THE THREE UNDERTAKINGS HAVE SEPARATE POWER PURCHASE AGREEMENTS UNRELATED TO ONE ANOTHER AND SEPARATE APPROVALS HAVE BEEN GIVEN BY THE ELECTRICI TY DEPARTMENT ON DIFFERENT DATES . IN THE CASE OF THE THREE UNDERTAKINGS, THE POWER IS PREDOMINANTLY SUPPLIED TO STATE ELECTRICITY BOAR DS ON WHOM INVOICES ARE RAISED ON MONTHLY BASIS AND PAYMENTS A RE RECEIVED FROM ELECTRICITY BOARDS . THE WIND MILL DIVISION COMMENCED ITS COMMERCIAL PRODUCTION DURING THE FINANCIAL YEAR 200 4-05 AND SINCE THERE WAS NO POSITIVE INCOME IN TERMS OF SECTION 80 IA(5), NO CLAIM IS MADE U/S.80IA. IT IS TO NOTE THAT ON SIMILAR ISS UE THE HON'BLE ITAT, CHENNAI FOR THE EARLIER ASSESSMENT YEARS DECI DED IN FAVOUR OF THE APPELLANT. I HAD ALSO DECIDED THE ISSUE FOR THE ASSESSMENT YEAR 2007-08 AND ASSESSMENT YEAR 2008-09 IN FAVOUR OF TH E APPELLANT FOLLOWING THE HON'BLE ITAT DECISION FOR EAR L IER YEARS. MY ORDER FOR THE ASSESSMENT YEAR 2007-08 AND ASSESSMENT YEAR 200 8-09 WAS ITA 1798/MDS/12 4 CONFIRMED BY THE HON'BLE ITAT, CHENNAI IN ITA NO.16 0/MDS/2011 AND ITA NO.1482/MDS/2011. IT IS ALSO OBSERVED THAT NO NEW FACTS OR CASE LAWS HAVE BEEN BROUGHT ON RECORD BY THE ASS ESSING OFFICER IN THE IMPUGNED ORDER . IN RESULT THE GROUNDS OF APPEAL ARE ALLOWED . 4. THE COMMISSIONER OF INCOME TAX (APPEALS) DECIDE D THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DE CISION OF THIS TRIBUNAL IN ITA NO.160/MDS/2011 AND ITA NO.1482/MDS /2011 RESPECTIVELY FOR THE ASST. YEARS 2007-08 AND 2008-0 9. WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS). THE DEPARTMENTAL REPRESENTATIVE COULD N OT FILE ANY MATERIAL BEFORE US TO SHOW THAT THE ORDER OF THIS T RIBUNAL HAS BEEN REVERSED IN APPEAL BY THE HON'BLE HIGH COURT. HENC E, WE COULD NOT FIND ANY GOOD AND JUSTIFIED REASON TO INTERFERE WIT H THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). THEREFORE, T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONFIRMED A ND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. ITA 1798/MDS/12 5 5. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 29 TH OF NOVEMBER 2012, AT CHENNAI. SD/- SD/- ( DR. O.K. NARAYANAN) (CHALLA NAGENDR A PRASAD) VICE PRESIDENT JUDICIAL MEMBE R CHENNAI, DATED : 29 TH NOVEMBER 2012. JLS. COPY TO:- (1) APPELLANT (2) RESPONDENT (3) CIT-VIII, CHENNAI (4) D.R. (5) GUARD FILE