Appeal details
Counselvise Citation
[2013] 120 COUNSELVISE.COM (IT) 1131 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 13 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
18-03-2013
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
18-03-2013
Assessment Year
2009-2010
Appeal Filed On
05-10-2012
Judgement Text
IN THE INCOME-TAX APPELLATE TRIBUNAL D BENCH, CHENNAI. BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT & SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO.1826/MDS/2012 ASSESSMENT YEAR : 2009-10 THE ASSISTANT COMMISSIONER OF INCOME TAX(OSD), CENTRAL CIRCLE IV (2), 46, NUNGAMBAKKAM HIGH ROAD, CHENNAI. VS. M/S. SAS HOTELS AND ENTERPRISES LTD., NO. 3, MANGESH STREET, T. NAGAR, CHENNAI 17. [PAN:AAECS1194C] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. DAS GUPTA, JCIT RESPONDENT BY : SHRI S. RAMACHANDRA RAO, C.A. DATE OF HEARING : 18 . 03 .201 3 DATE OF PRONOUNCEMENT : 18.03.2013 ORDER PER S.S. GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) -I, CHENNAI DA TED 26.07.2012 IN ITA NO. 104/2011-12, FOR THE ASSESSMENT YEAR 2009-10; I N PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. 2. THE FOLLOWING SUBSTANTIVE GROUNDS HAVE BEEN RAI SED BY THE REVENUE IN THIS APPEAL: I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.182 182182 1826 66 6/M/ /M/ /M/ /M/12 1212 12 2 1.A ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DIRECTING THE A.O. TO ALLOW DED UCTION U/S 80IA ON WINDMILL INCOME AMOUNTING TO ` .4,11,97,234. 1.B THE LEARNED CIT(A) HAS FAILED TO CONSIDER THAT THE ISSUE HAS NOT BECOME FINAL AND THAT THE DEPARTMENT HAS FILED APPE AL BEFORE THE HON'BLE HIGH COURT AGAINST THE RELIED UPON ORDER OF THE ITAT 'A' BENCH IN I.T.A.NO.477, 478 AND 479/MDS/2011 DATED 30/05/2 011 FOR THE ASSESSMENT YEARS 2003-04 TO 2005-06, ORDER OF THE I TAT 'B' BENCH IN I.T.A.NO. 2176/MDS/2008, DATED 08/01/10 FOR THE ASS ESSMENT YEAR 2003- 04 AND ALSO AGAINST, THE PREVIOUS ORDERS OF THE ITA T FOR THE ASSESSMENT YEARS 2001-02, 2002-03 AND 2000-01 IN THE ASSESSEE' S OWN CASE. 3. REPRESENTING REVENUE, THE DR VEHEMENTLY REITERA TE THE ABOVE SAID PLEADINGS AND SUBMITS THAT THE CIT(A) HAS WRONGLY D ELETED THE ADDITION MADE BY THE ASSESSING OFFICER TO THE TUNE OF ` .4,11,97,234/-. IN THE LIGHT THEREOF, HE PRAYS FOR RESTORATION OF THE ADDITION I N QUESTION BY ACCEPTING THE INSTANT APPEAL. 4. PER CONTRA, THE ASSESSEE STRONGLY SUPPORTS THE CIT(A)S ORDER AND PRAYS FOR UPHOLDING THE SAME. 5. CONCISE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY. IT IS IN THE BUSINESS OF CONSTRUCTION, HOTELIERING, GENERATI ON AND DISTRIBUTION OF POWER. FOR THE IMPUGNED ASSESSMENT YEAR, IT CHOSE T O DECLARE TOTAL INCOME OF ` .4,11,97,234/- DERIVED FROM WINDMILL DIVISION, WHIC H WAS CLAIMED AS A DEDUCTION UNDER SECTION 80IA OF THE ACT. IN THE SCRUTINY ASSESSMENT FINALIZED ON 15.12.2011, THE ASSESSING OFFICER HAD HELD THAT THE INITIAL ASSESSMENT YEAR FOR THE PURPOSE OF COMMENCEMENT OF WIND POWER I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.182 182182 1826 66 6/M/ /M/ /M/ /M/12 1212 12 3 GENERATION WAS ASSESSMENT YEAR 1995-96, THEREFORE, THE ASSESSEE WAS NOT ENTITLED FOR DEDUCTION. FURTHER, HE ALSO OBSERVED T HAT EVEN IN EARLIER ASSESSMENT YEARS, THE SAME ISSUE HAD BEEN DECIDED A GAINST THE ASSESSEE. 6. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL. VIDE ORDER UNDER CHALLENGE, THE CIT(A) HAS RELIED UPON THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE [AS STATED IN GROUND NO. 2 RAIS ED BY THE REVENUE] AND DELETED THE ADDITION. IN THIS BACKDROP, THE REVENUE IS IN APPEAL. 7. WE HAVE HEARD THE REVENUE AS WELL AS ASSESSEE A ND ALSO GONE THROUGH THE ASSESSMENT ORDER AND CIT(A)S ORDER. TH E ONLY STRIFE BETWEEN THE PARTIES IN THE INSTANT APPEAL IS THAT PER REVEN UE, THE ASSESSING OFFICER HAD RIGHTLY HELD THAT THE INITIAL ASSESSMENT YEAR I N ASSESSEES CASE IS LIABLE TO BE TAKEN AS ASSESSMENT YEAR 1995-96. THE CIT(A), IN THE ORDER UNDER CHALLENGE, WHILE DELETING THE ADDITION PLACED RELIA NCE ON THE DECISION OF THE TRIBUNAL IN THE PRECEDING ASSESSMENT YEAR. ON THI S, THE REVENUES ONLY ARGUMENT IS THAT THE ORDERS OF THE TRIBUNAL HAVE NOT ATTAINED FINALITY SINCE ITS APPEALS ARE PENDING BEFORE THE HONBLE JURISDIC TIONAL HIGH COURT. THIS IN OUR VIEW, DOES NOT FORM A SUFFICIENT GROUND SO AS T O TAKE A DIFFERENT VIEW AND MORE SO, WHEN THERE IS NO DISTINCTION ON FACTS IS F ORTHCOMING. ACCORDINGLY, WE HOLD THAT THE CIT(A) HAS RIGHTLY DELETED THE ADD ITION IN QUESTION. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.182 182182 1826 66 6/M/ /M/ /M/ /M/12 1212 12 4 8. CONSEQUENTLY, REVENUES APPEAL STANDS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 18 TH OF MARCH, 2013 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (S.S. GODARA) JUDICIAL MEMBER CHENNAI, DATED, THE 18.03.2013 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.
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