ACIT, Circle-1, Aurangabad V. Laxmi Rikshaw Body Pvt. Ltd., Aurangabad

ITA 1875/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5235 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.1875/PN/2012 (ASSESSMENT YEAR : 2009-10) ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, AURANGABAD . APPELLANT VS. LAXMI RIKSHAW BODY PVT. LTD., E38-1, MIDC, CHIKALTHANA, AURANGABAD. PAN : AAACL5650Q . RESPONDENT DEPARTMENT BY : MR. P. L. PATHADE ASSESSEE BY : MR. SANKET JOSHI DATE OF HEARING : 18-11-2013 DATE OF PRONOUNCEMENT : 20-11-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), AURANGABAD DA TED 18-07-2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 03-1 0-2011 PASSED BY THE ASSESSING OFFICER, U/S 143(3) OF THE INCOME-TAX ACT , 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, THE SOLITARY DISPUTE IS WITH REG ARD TO THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IA(4)(IV)(A) OF THE AC T AMOUNTING TO RS.28,35,170/- WITH RESPECT TO THE PROFITS DERIVED FROM THE BUSINESS OF ELECTRICITY GENERATION IN ITS WINDMILL UNIT. IN THE ASSESSMENT PROCEEDINGS, ASSESSEE WAS FOUND ELIGIBLE FOR CLAIM OF DEDUCTION U/S 80IA(4)(IV)(A) OF THE ACT, SO HOWEVER, THE QUANTUM OF DEDUCTION WAS FOUND TO B E NIL ON THE GROUND THAT THE PROFIT ELIGIBLE FOR DEDUCTION DURING THE YEAR U NDER CONSIDERATION WAS LIABLE TO BE COMPUTED ONLY AFTER DEDUCTING THE PAST LOSSES ON AN APPLICATION OF SECTION 80IA(5) OF THE ACT. ACCORDING TO THE ASSES SING OFFICER, EVEN IF THE PAST ITA NO.1875/PN/2012 A.Y. 2009-10 LOSSES OF THE WINDMILL UNIT WERE ABSORBED AGAINST O THER INCOME OF THE RESPECTIVE YEARS, THE SAME WAS STILL LIABLE TO BE R EDUCED FROM THE INCOME OF WINDMILL UNIT IN THE CURRENT YEAR HAVING REGARD TO THE PROVISIONS OF SECTION 80IA(5) OF THE ACT, FOR THE PURPOSE OF DETERMINATIO N OF QUANTUM OF DEDUCTION ALLOWABLE U/S 80IA(4)(IV)(A) OF THE ACT FOR THE YEA R UNDER CONSIDERATION. THE ASSESSING OFFICER HAS TAKEN SIMILAR STAND EVEN IN T HE EARLIER ASSESSMENT YEARS AND ACCORDINGLY, HE HELD THAT HAVING REGARD T O THE PAST LOSSES, THERE WAS NO PROFIT DURING THE YEAR PERTAINING TO THE WIN DMILL UNIT AND ACCORDINGLY, THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IA(4)(I V)(A) OF THE ACT AT RS.28,35,170/- WAS DENIED. 3. THE CIT(A) NOTED THAT ON THE VERY SAME ISSUE IN RESPECT OF ASSESSMENT YEAR 2007-08 IN THE ASSESSEES OWN CASE, THE PUNE B ENCH OF THE TRIBUNAL VIDE ITS ORDER IN ITA NO.134/PN/2011 DATED 30-03-2012 HA S UPHELD THE ORDER OF THE THEN CIT(A) ALLOWING THE CLAIM OF ASSESSEE FOR DEDU CTION U/S 80IA(4)(IV)(A) OF THE ACT. THE PRIMARY DISPUTE REVOLVES AROUND THE M ANNER OF APPLICATION U/S 80IA(5) OF THE ACT, WHEREBY AS PER THE ASSESSIN G OFFICER THE INITIAL ASSESSMENT YEAR IS 2002-03 AND THUS CARRIED FORWAR D LOSSES OF THE WINDMILL UNIT FOR ASSESSMENT YEAR 2002-03 ONWARDS WERE REQUI RED TO BE ADJUSTED BEFORE QUANTIFYING THE DEDUCTION ALLOWABLE U/S 80IA (4)(IV)(A) OF THE ACT. THE STAND OF THE ASSESSEE ON THE OTHER HAND WAS THAT TH E INITIAL ASSESSMENT YEAR FOR THE PURPOSE OF APPLICATION OF SECTION 80IA(5) O F THE ACT WAS TO BE CONSIDERED AS ASSESSMENT YEAR 2005-06 AND LOSSES, I F ANY, FROM THE SAID ASSESSMENT YEARS WERE ONLY LIABLE TO BE DEDUCTED FO R QUANTIFYING THE DEDUCTION ALLOWABLE U/S 80IA(4)(IV)(A) OF THE ACT. FOLLOWING THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSM ENT YEAR 2007-08, THE CIT(A) HAS ALLOWED THE DEDUCTION U/S 80IA(4)(IV)(A ) OF THE ACT, AS CLAIMED BY THE ASSESSEE. ITA NO.1875/PN/2012 A.Y. 2009-10 4. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE DECISION OF THE TRIBUNAL DATED 30-03-2012 (SUPRA) RELIED UPO N BY THE CIT(A) TO ALLOW RELIEF TO THE ASSESSEE, FULLY COVERS THE CONTROVERS Y IN THE PRESENT APPEAL AND FURTHER THE SAID ORDER CONTINUES TO HOLD THE FIELD. THUS, IN VIEW OF THE AFORESAID PRECEDENT, THE ORDER OF THE CIT(A) IS AFFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 20 TH NOVEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), AURANGABAD; 4) THE CIT, AURANGABAD; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE