Jivraj Tea & Industries Ltd., Surat V. The ACIT.,Cent.Circle-2, Surat

ITA 3012/AHD/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68072 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-11-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Keywords: Capital asset; Invalid notice; Depreciation; Source of fund; Capital receipt; Sham transactions; Unabsorbed depreciation
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.3011, 3012/AHD/2010 A.YS.2004-05, 2007-08 M/S. JIVRAJ TEA & INDUSTRIES LTD., 3 RD FLOOR DR. MANSUKHLAL TOWER, OPP. DHIRAJ SONS, ATHWALINES, SURAT. PAN: AAACJ 5957E VS THE ACIT, CENTRAL CIRCLE-2, SURAT. (APPELLANT) (RESPONDENT) ITA NO.3013/AHD/2010 A.YS. 2007-08 M/S. JIVRAJ TEA LTD., 3 RD FLOOR DR. MANSUKHLAL TOWER, OPP. DHIRAJ SONS, ATHWALINES, SURAT. PAN: AAACJ 5957E VS THE ACIT, CENTRAL CIRCLE-2, SURAT. (APPELLANT) (RESPONDENT) ITA NO.3093/AHD/2010 A.Y. 2007-08 THE DCIT, CIRCLE-1, SURAT. VS M/S. JIVRAJ TEA LTD., 3 RD FLOOR DR. MANSUKHLAL TOWER, OPP. DHIRAJ SONS, ATHWALINES, SURAT. PAN: AAACJ 5957E (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. , AND SHRI SUBHASH BAINS, CIT-DR. ASSESSEE(S) BY : SHRI S.N. SOPARKAR, A.R. / DATE OF HEARING : 27/11/2013 / DATE OF PRONOUNCEMENT: 19/12/2013 ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 2 - / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER : FOR THE CASE OF JIVRAJ TEA LTD THE ASSESSMENT YEAR 2007-08, THE ASSESSEE AND THE REVENUE HAS FILED CROSS APPEALS AG AINST THE ORDER OF LEARNED CIT(A)-II, DATED 01.09.2010. IN THE CASE OF M/S. JIVRAJ TEA & INDUSTRIES LTD. IN ASSESSMENT YEAR 2004-05, THE ASS ESSEE HAS FILED APPEAL AGAINST THE ORDER OF LEARNED CIT(A)-II, DATED 01.09 .2010 AND IN THE ASSESSMENT YEAR 2007-08, THE ASSESSEE HAD FILED APP EAL AGAINST THE ORDER OF LEARNED CIT(A), DATED 01.09.2010. 2. IN ALL THE ASSESSEES APPEALS, THE FIRST COMMON ISSUE INVOLVED IS AGAINST THE ORDER OF LEARNED CIT(A) CONFIRMING THE DISALLOWANCE OF DEDUCTION U/S. 80IA BEING PROFITS FROM ELECTRICITY GENERATION THROUGH WINDMILL. 3. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND OF APPEAL THAT THE LEARNED CIT(A) OUGHT TO HAVE TREATED THE AMOUNT REC EIVED ON SALE OF SALES TAX ENTITLEMENT AS CAPITAL RECEIPT INSTEAD OF REVENUE RECEIPT AND THEREBY TREATED IT AS NON TAXABLE. 4. AT THE TIME OF HEARING, LEARNED AR OF THE ASSESS EE SUBMITTED THAT AS THE FACTS AND ISSUE INVOLVED IN ALL THESE APPEAL S ARE THE SAME, THEREFORE, HE IS ARGUING ALL THE APPEALS TOGETHER. 5. LEARNED AR SUBMITTED THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND OF APPEAL IN ALL THE YEARS THAT THE LEARNED CIT(A) OUGHT TO HAVE TREATED ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 3 - THE AMOUNT OF RECEIVED ON SALE OF SALE TAX ENTITLEM ENT AS CAPITAL RECEIPT NOT LIABLE TO TAX AND THAT THIS GROUND WAS OMITTED TO BE TAKEN AT THE TIME OF FILING OF THE APPEAL BY THE ASSESSEE AND THE OMI SSION WAS NOT MALA FIDE. HE SUBMITTED THAT IS A LEGAL ISSUE AND ALL THE FACT S ARE AVAILABLE ON RECORD AND HENCE, THE SAME MAY BE ADMITTED FOR HEAR ING. 6. LEARNED DEPARTMENT REPRESENTATIVE DID NOT HAVE A NY OBJECTION TO THE ADMISSION OF THIS ADDITIONAL GROUND OF APPEAL R AISED BY THE ASSESSEE. HENCE, THE SAME WAS ADMITTED AND THE PARTIES WERE A LLOWED TO MAKE THEIR SUBMISSIONS THEREON. 7. THE LEARNED AR SUBMITTED THAT IN ALL THESE APPEA LS EXCEPT FOR THE CHANGE IN FIGURE, THE FACTS ARE IDENTICAL AND THERE FORE WE ARE QUOTING THE FACTS IN THE CASE OF JIVRAG TEA LTD. IN ITA NO.3013 /AHD/2010 FROM THE ORDER OF THE LEARNED CIT(A) WHICH READS AS UNDER: 6.2 THE ASSESSING OFFICER HAS FOUND THAT THE PROFI T INCLUDED RS.59,16,6667- AS RECEIVED ON SALE OF SALES TAX ENTITLEMENT IN RES PECT OF WINDMILL INSTALLED AT AHMEDNAGAR, MAHARASHTRA. THE ASSESSING OFFICER FURT HER OBSERVED THAT THE SALES TAX ENTITLEMENT IS AN INCENTIVE WHICH IS CALC ULATED ON THE BASIS OF INVESTMENT MADE IN THE PROJECT WHICH IN THIS CASE I S 1/6 TH OF THE ELIGIBLE INVESTMENT. THE SOURCE OF SALES TAX ENTITLEMENT LIE S IN THE SCHEME FORMED BY THE MAHARASHTRA STATE GOVERNMENT. HENCE, IT IS NOT PROFIT DERIVED BY THE INDUSTRIAL UNDERTAKING AND THUS, NOT ELIGIBLE FOR D EDUCTION U/S.80IA OF THE I.T. ACT. FOR THIS, THE ASSESSING OFFICER PLACED THE REL IANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED VS CIT 183 TAXMAN 349(SC). 6.3 FURTHER, THE ASSESSING OFFICER OBSERVED THAT FO R CALCULATING THE AMOUNT OF DEDUCTION U/S.80IA, THE PROVISION OF SECTION 80IA(5 ) HAS TO BE APPLIED AND THEREBY UNABSORBED BUSINESS LOSSES AND DEPRECIATION OF EARLIER YEAR IN RESPECT OF WINDMILLS HAS TO BE CONSIDERED BY TREATI NG IT AS THE ONLY UNIT EXISTING FROM THE YEAR OF INSTALLATION, NOTWITHSTAN DING WITH THE FACT THAT UNABSORBED BUSINESS LOSS AND DEPRECIATION WAS SET O FF IN THE EARLIER YEAR AGAINST THE PROFIT OF OTHER UNITS. THE ASSESSING OF FICER OBSERVED THAT THE WINDMILL AT AHMEDNAGAR MAHARASHTRA WAS INSTALLED AN D COMMENCED OPERATIONS IN AY.2002-03 AND UNABSORBED DEPRECIATIO N / BUSINESS LOSS OF THIS UNIT IN ISOLATION COMES TO RS.3,53,59,339/- UP TO A .Y.2007-08. SIMILARLY, ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 4 - WINDMILL AT JODHA RAJASTHAN WAS INSTALLED /COMMENCE D PRODUCTION IN A.Y.2004-05 AND THE UNABSORBED DEPRECIATION /BUSINE SS LOSS CARRIED FORWARD TILL A.Y.2007-08 COMES TO RS.2,88,81,178/-, AND WIN DMILL AT CHITRA DURGA KARNATAKA WAS INSTALLED IN A.Y.2005-06 UP TO A.Y.20 07-08 THE UNABSORBED DEPRECIATION / BUSINESS LOSS COMES TO RS.4,20,00,98 3/- AND THERE REMAINS NO BUSINESS PROFIT AS PER THE WORKING GIVEN IN THE ANN EXURE TO THE ASSESSMENT ORDER. BY APPLYING THE PROVISIONS OF SECTION 80IA(5 ) AND SETTING OFF WITH THE BUSINESS LOSS AND UNABSORBED DEPRECIATION OF EARLIE R YEAR BEGINNING FROM THE YEAR OF INSTALLATION OF THE WINDMILL, THE ASSESSING OFFICER HAS HELD THAT BY DOING THIS, THERE REMAINS NO PROFIT FROM THE WINDMI LL UNITS. FOR THIS, THE ASSESSING OFFICER HAS RELIED ON THE DECISION OF HON 'BLE ITAT SPECIAL BENCH AHMEDABAD IN THE CASE OF ACIT VS GOLDMINE SHARES & FINANCE PVT LTD. 113 ITD 209/AHD(SB) WHEREON IT WAS HELD THAT, IN VIEW O F SPECIFIC PROVISIONS OF SECTION 80IA(5), PROFITS FROM THE ELIGIBLE BUSINESS FOR THE PURPOSES OF DETERMINATION OF QUANTUM OF DEDUCTION U/S.80IA, HAS TO BE COMPUTED AFTER DEDUCTION OF NOTIONAL BROUGHT FORWARD LOSSES AND DE PRECIATION OF ELIGIBLE BUSINESS, EVEN THOUGH THEY HAVE BEEN ALLOWED TO BE SET OFF AGAINST OTHER INCOME IN EARLIER YEARS. HENCE, DEDUCTION U/S.80IA IS NIL. ACCORDINGLY, THE CLAIM OF DEDUCTION U/S.80IA FOR RS.92,41,888/-, RS. 63,69,121/- AND RS.2,48,928/- RESPECTIVELY WAS DISALLOWED. 6.4 THE APPELLANT HAS SUBMITTED THAT THE PROFIT ON SALE OF SALES TAX EXEMPTION AND ENTITLEMENT IS DERIVED FROM THE INDUSTRIAL UNDE RTAKING BEING THE WINDMILL AND ON THIS U/S.80IA IS ALLOWABLE. THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED WAS IN RESPECT OF PROFIT RECEIVED FROM DEPB AND DUTY DRAW BACK SCHEME AND IT WAS HELD THAT SUCH PROFIT CANNOT BE TREATED AS HAVING BEEN DERIVED FROM THE EIGIBLE IND USTRIAL UNDERTAKING. IT WAS FURTHER SUBMITTED THAT LIBERAL INTERPRETATION SHOUL D BE MADE OF THE BENEFITING SECTIONS SO THAT THE ASSESSEE CAN CLAIM AND AVAIL V ARIOUS DEDUCTIONS GIVEN TO HIM. 6.5 REGARDING THE APPLICATION OF THE PROVISION OF S ECTION 80IA(5), THE APPELLANT HAS SUBMITTED THAT THE INITIAL ASSESSMENT YEAR SHALL BE THE ASSESSMENT YEAR FALLING WITHIN A PERIOD OF 15 YEARS BEGINNING FROM THE YEAR IN WHICH THE INDUSTRIAL UNDERTAKING COMMENCES OPERATIO N, FOR WHICH FOR THE FIRST TIME, THE DEDUCTION U/S.80IA OF THE ACT IS CLAIMED BY THE ASSESSEE, AND NOT THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE INDUSTRIAL UNDERTAKING COMMENCES OPERATION. THE APPELLANT FIRS T TIME CLAIMED DEDUCTION IN A.Y.2004-05 FOR THE UNIT AHMEDNAGAR MAHARASHTRA, IN A.Y.2006-07 FOR RAJASTHAN WINDMILL AND IN A.Y.2007-08 FOR KARNATAKA WINDMILL, WHICH BECOMES THE INITIAL YEAR. THE LOSSES AND DEPRECIATI ON OF THE YEARS EARLIER TO THE INITIAL ASSESSMENT YEAR (I.E. A.Y.2004-05, 2006 -07 & 2007-08 RESPECTIVELY), WHICH HAVE ALREADY BEEN ABSORBED AGA INST THE PROFITS OF THE OTHER BUSINESS, CANNOT BE NOTIONALLY BROUGHT FORWAR D AND SET OFF AGAINST THE PROFITS OF THE ELIGIBLE BUSINESS FOR COMPUTING THE DEDUCTION U/S.80IA OF THE ACT. FOR THIS, THE APPELLANT HAS RELIED ON THE DECI SION OF MADRAS HIGH COURT IN THE CASE OF VELAYUDHASWAMY SPINNING MILLS (P) LT D. VS ACIT 38 DTR 57 (MAD). IT WAS FURTHER SUBMITTED THAT THE DECISION O F HON'BLE AHMEDABAD ITAT ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 5 - IN THE CASE OF ACIT VS GOLDMINE SHARES & FINANCE P. LTD. 116 TTJ (AHD)(SB), IS NOT APPLICABLE AS THAT DECISION WAS D ELIVERED BEFORE THE AMENDMENT TO THE SECTION BY FINANCE ACT, 1999. BEFO RE THE AMENDMENT, INITIAL ASSESSMENT YEAR WAS DEFINED IN THE ACT BUT AFTER TH E AMENDMENT, THERE IS NO DEFINITION FOR INITIAL ASSESSMENT YEAR IN THE ACT A ND THERE IS OPTION TO THE ASSESSEE IN SELECTING THE YEAR FOR CLAIMING RELIEF U/S.80IA OF THE ACT. 6.6 I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS . I DO NOT AGREE WITH THE APPELLANT'S VIEWS. THE SALES TAX EXEMPTION ENTITLEM ENT ARE THE INCENTIVES GIVEN BY THE MAHARASHTRA GOVERNMENT ON THE INVESTMENT MAD E BY THE ASSESSEE FOR INSTALLATION OF WINDMILL AND IS CALCULATED ON THE I NVESTMENT WHICH IN THIS CASE IS 1/6 TH OF THE INVESTMENT. IT IS NOT BASED ON THE TURNOVER OR THE PROFIT OF THE UNIT. THE SOURCE OF THE SALES TAX EXEMPTION ENTITLE MENT LIES IN THE SCHEME FORMED BY THE MAHARASHTRA STATE GOVERNMENT FOR SALE S TAX. THUS, THE ENTITLEMENT FLOWS FROM THE SALES TAX EXEMPTION SCHE ME. THE HONBLE SUPREME COURT HAS HELD IN THE CASE OF LIBERTY INDIA LTD. TH AT DEPB/DUTY DRAW BACK ARE INCENTIVES WHICH FLOWS FROM THE SCHEMES FRAMED BY THE CENTRAL GOVERNMENT OR FROM SECTION 75 OF THE CUSTOMS ACT, 1 962, HENCE INCENTIVE PROFITS ARE NOT PROFITS DERIVED FROM THE ELIGIBLE B USINESS AND THEREFORE, DUTY DRAW BACK RECEIPT/DEPB BENEFITS DO NOT FORM PART OF THE NET PROFIT OF THE INDUSTRIAL UNDERTAKING FOR THE PURPOSE OF SECTION 8 0IA OR 80IB. THE RATIO OF THIS DECISION CLEARLY APPLIES TO THE FACTS OF THE P RESENT CASE. IN THIS CASE, THE SOURCE OF THE SALES TAX EXEMPTION ENTITLEMENT LIES IN THE SCHEME FORMED BY THE MAHARASHTRA STATE GOVERNMENT FOR SALES TAX. THUS, T HE ENTITLEMENT FLOWS FROM THE SALES TAX EXEMPTION SCHEME. HENCE, BY FOLLOWING THE DECISION OF HON'BLE SUPREME COURT, IT IS HELD THAT THE ASSESSING OFFICE R WAS JUSTIFIED IN HOLDING THAT THE PROFIT ON SALE OF SALES TAX EXEMPTION ENTI TLEMENT, IS NOT DERIVED FROM THE INDUSTRIAL UNDERTAKING AND THUS, NOT ELIGIBLE F OR DEDUCTION U/S.80IA OF THE ACT. 7. REGARDING APPLICATION OF SECTION 80IA(5), THE SE CTION READS AS UNDER: '(5) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT, THE PROFITS AND GAINS OF AN ELIGIBLE BUSINESS TO WHICH THE PROVISIONS OF SUB-SECTION (1) APPLY SHALL, FOR THE PURPOSES OF DETERMINING THE QUANTUM OF DEDUCTION UNDER THAT SUB -SECTION FOR THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR BE COMPUTED AS IF SU CH ELIGIBLE BUSINESS WERE THE ONLY SOURCE OF INCOME OF THE ASSE SSEE DURING THE PREVIOUS YEAR RELEVANT TO THE INITIAL ASSESSMENT YE AR AND TO EVERY SUBSEQUENT ASSESSMENT YEAR UP TO AND INCLUDING THE ASSESSMENT YEAR FOR WHICH THE DETERMINATION IS TO BE MADE.' 7.1 THE HONBLE ITAT AHMEDABAD SPECIAL BENCH IN THE CASE OF ACIT VS GOLDMINE SHARES AND FINANCE PVT. LTD. HAS HELD THAT 'SECTION 80IA(5) DEEMS THAT, FOR THE PURPOSES OF DETERMINING THE QUANTUM O F DEDUCTION, THE ELIGIBLE BUSINESS AS THE ONLY SOURCE OF INCOME OF THE ASSESS EE DURING THE INITIAL ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 6 - ASSESSMENT YEAR AS WELL AS SUBSEQUENT YEARS AND HAS AN OVER RIDING EFFECT ON ALL OTHER PROVISIONS OF THE ACT', (PARA 23) ' SECTION 80IA(5) BIDS ONE TO TREAT THE ELIGIBLE BUSINESS AS THE ONLY SOURCE OF INCOME OF AN UNDERTAKING AS REAL, WHICH IS AN IMAGINARY ST ATE OF AFFAIRS. ONE MUST SURELY (IMAGINE) AS ALSO REAL THE CONSEQUENCES AND INCIDENTS WHICH, IF THE PUTATIVE STATE OF AFFAIRS HAD IN FACT EXISTED, MUST INEVITABLY HAVE FLOWN FROM OR ACCOMPANIED IT I.E., THERE WAS NO OTHER SOU RCE OF INCOME OF THE ASSESSEE. THE STATUTE SAYS THAT YOU MUST IMAGINE A CERTAIN STATE OF AFFAIRS (ELIGIBLE BUSINESS BEING THE ONLY SOURCE); IT DOES SOT SAY THAT HAVING DONE SO, YOU MUST CAUSE OR PERMIT YOUR IMAGINATION TO BOGGLE WHEN IT COMES TO THE INEVITABLE COROLLARIES OF THE STATE OF AFFAIRS, THA T THERE ARE OTHER SOURCES AND THAT AGAINST THOSE SOURCES THE UNABSORBED DEPRECIAT ION OR LOSSES OF ELIGIBLE BUSINESS WERE SET OFF', (PARA 30) 'IT IS IMPLICIT FROM THE TENOR AND PHRASEOLOGY IMPL IED IN SECTION 80IA(5) THAT IN SUBSTANCE, A LEGAL FICTION IS CREATED BY WHICH T HE ELIGIBLE BUSINESS HAS BEEN TREATED AS THE ONLY SOURCE OF INCOME. IN CONSTRUING THIS LEGAL FICTION, IT WILL BE PROPER AND NECESSARY TO ASSUME ALL THOSE FACTS ON W HICH ALONE THE FICTION CAN OPERATE, SO, NECESSARILY, ALL THE PROVISIONS IN THE ACT IN RESPECT OF SOURCE OF INCOME WILL APPLY. AS A CONSEQUENCE, THE OTHER SOUR CES OF INCOME OF AN ASSESSEE/UNDERTAKING WOULD HAVE TO BE ASSUMED AS NO T EXISTING AND CONSEQUENTLY, ANY DEPRECIATION OR LOSS CANNOT BE SE T OFF AGAINST ANY OTHER SOURCE WHICH IS ASSUMED TO HAVE NOT BEEN IN EXISTEN CE AND THEREFORE, THE DEPRECIATION OR THE LOSS OF THE INELIGIBLE BUSINESS WHICH COULD NOT BE SET OFF AGAINST THE LOSS OF THE ELIGIBLE BUSINESS ITSELF HA S TO BE CARRIED FORWARD OR SET OFF OF THE PROFITS OF THE VERY SOURCE OF INELIGIBLE BUSINESS IN THE SUBSEQUENT YEAR', (PARA 31) THE WORDS 'AS IF SUCH ELIGIBLE BUSINESS WERE THE ON LY SOURCE OF INCOME OF THE ASSESSEE' COMPEL US TO ASSUME THAT THE ASSESSEE IS NOT HAVING ANY OTHER SOURCE OF INCOME EXCEPT THAT WHICH IS ELIGIBLE TO D EDUCTION U/S.80IA WHICH IN THIS CASE IS THE UNITS/UNDERTAKING, THE UNITS OF TH E WINDMILL GENERATING ELECTRICITY FOR THE ASSESSEE. AS PER THE WORDING OF THE SUB SECTION (5) OF SECTION 80IA, FOR THE PURPOSES OF COMPUTATION OF THE DEDUCT ION, IT HAS TO BE ASSUMED THAT THE ONLY SOURCE OF INCOME OF THE ASSESSEE IS T HE ELIGIBLE BUSINESS. THE INCOME OR LOSS OF THIS BUSINESS ALONE IS TO BE CONS IDERED AS IF THAT WERE THE ONLY SOURCE. THIS MEANS NEITHER THE INCOME OF THE U NDERTAKING NOR THE LOSS THEREOF CAN BE SET OFF OR CARRIED FORWARD AND SET O FF OR ADJUSTED AGAINST ANY OTHER SOURCE OF INCOME OR LOSS. AS A COROLLARY, THE INCOME OR THE LOSS OF THE OTHER BUSINESS OR SOURCE CANNOT BE CONSIDERED OR SE T OFF FOR DETERMINING THE QUANTUM OF THE DEDUCTION OF THE ELIGIBLE BUSINESS'. PARA 33) 7.2 THUS, IT IS EVIDENT THAT FOR CALCULATING THE D EDUCTION U/S.80IA, WE HAVE TO TREAT THAT THE APPELLANT IS HAVING ONLY THE ELIGIBL E BUSINESS I.E. THE WINDMILL, AS THE ONLY SOURCE OF INCOME AND HAS NO OTHER BUSIN ESS ACTIVITY. HENCE, THE UNABSORBED DEPRECIATION AND BUSINESS LOSS FROM THE DATE OF INSTALLATION AND RUNNING OF WINDMILL HAS TO BE TAKEN INTO CONSIDERAT ION AND SET OFF AGAINST THIS YEAR'S INCOME. THERE IS NO JUSTIFICATION FOR TREATI NG IT AS BEING SET OFF WITH OTHER BUSINESS IN EARLIER YEARS, EVEN IF THIS WAS A CTUALLY SET OFF WITH THE OTHER INCOME. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 7 - 7.3 THE SUBMISSION OF THE APPELLANT THAT INITIA L ASSESSMENT YEAR HAS TO BE TAKEN AS THE YEAR IN WHICH THE APPELLANT FIRST CLAI MED DEDUCTION U/S.80IA AND NOT THE YEAR OF INSTALLATION, IS NOT ACCEPTABLE. TH E APPELLANT HAS RELIED ON THE DECISION OF MADRAS HIGH COURT IN THE CASE OF VELAYU DHASWAMY SPINNING MILLS (P) LTD. VS ACIT 38 DTR 57 (MAD), WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT THE INITIAL ASSESSMENT YEAR MEANS THE YEA R WHEN FIRST TIME THE ASSESSEE OPTED FOR THE DEDUCTION U/S.80IA AND NOT THE YEAR OF SETTING UP/COMMENCEMENT OF THE BUSINESS OF THE UNIT, BECAUS E THE INITIAL YEAR HAS NOT BEEN DEFINED IN THE ACT AND THUS, LIBERAL INTERPRET ATION HAS TO BE MADE FOR THE TERM INITIAL ASSESSMENT YEAR' SO THAT THE APPELLAN T IS ALLOWED POSSIBLE BENEFITS GIVEN BY THE ACT. WITH DUE RESPECT TO THE HON'BLE C OURT, IT IS SUBMITTED THAT WHEN ANY TERM IS NOT DEFINED AND INTERPRETATION IS TO BE MADE, THE POINT OF EQUITY HAS ALSO TO BE TAKEN INTO CONSIDERATION AND IT SHOULD NOT LEAD TO DISCRIMINATION AMONG VARIOUS ASSESEES. IF WE TAKE T HE INITIAL YEAR AS NOT THE YEAR OF INSTALLATION/COMMENCEMENT BUT THE YEAR OF F IRST CLAIM OPTED FOR, IT WILL BE DISADVANTAGEOUS TO THOSE ASSESSEES WHO DO NOT HA VE ANY OTHER SOURCE OF INCOME, OTHER THAN THE ELIGIBLE BUSINESS. THE FOLLOWING EXAMPLE WILL ILLUSTRATE THIS POINT - THE ASSESSEE 'A' HAS STARTED WINDMILL IN A.Y.2002-0 3 AND HAD LOSS OF RS.2,50,22,495/- IN 2002-03 & RS. 1,50,13,463/-- IN A.Y.2003-04 WHICH WAS SET OFF WITH OTHER INCOME. WHEN THE ASSESSEE CLAIMS DEDUCTION U/S.80IA FOR A.Y.2004-05, FOR THE PROFIT EARNED FROM WINDMILL, H E WILL GET THE DEDUCTION AS PER THIS INTERPRETATION. HOWEVER, IF ANOTHER PERSON 'B' HAS INSTALLED SAME W INDMILL IN A.Y.2002-03 AND INCURRED THE SAME LOSS FROM WINDMILL IN A.YS.20 02-03 & 2003-04, AND DOES NOT HAVE ANY OTHER BUSINESS HAVING PROFIT TO S ET OFF WITH THIS LOSS, HE WILL NOT HAVE BENEFIT OF DEDUCTION U/S.80IA FOR SAME A MOUNT OF PROFIT EARNED IN A.Y.2004-05. THIS WILL LEAD TO DISCRIMINATION. THE LOGICAL AND EQUITABLE INTERPRETATION WARRANTS T HAT INITIAL ASSESSMENT YEAR HAS TO BE TAKEN AS THE YEAR OF INSTALLATION/COMMENC EMENT OF BUSINESS AND NOT THE YEAR WHEN THE CLAIM IS MADE FOR THE FIRST TIME. IF THIS INTERPRETATION IS TAKEN, THEN THE SAME TREATMENT WILL BE MET OUT FOR BOTH THE ASSESSES IN THE ABOVE EXAMPLE. 7.4 FURTHER, THE DEDUCTION U/S.80IA IS ALLOWED TO AN UN DERTAKING OR AN ENTERPRISE OR AN ELIGIBLE BUSINESS AND NOT TO AN AS SESSEE. HENCE, FOR ALLOWING DEDUCTION U/S.80IA, ONLY THE WINDMILL UNIT HAS TO B E CONSIDERED SEPARATELY IGNORING THE OTHER BUSINESSES. 7.5 THE AMENDMENT IN SECTION 80IA BY FINANCE ACT, 1 999, HAS NOT MADE ANY MATERIAL CHANGE ON THIS POINT. THE NEW SECTION 80IA (2) IS ONLY IN RESPECT OF PERIOD FOR CLAIM OF DEDUCTION U/S.80IA OF THE ACT. EARLIER IT WAS FROM TEN YEARS BEGINNING FROM THE YEAR OF INSTALLATION/COMMENCEMEN T OF BUSINESS OF ELIGIBLE UNIT. NOW, IT HAS BEEN SPREAD AND THE ASSESSEE CAN OPT AND CLAIM THE DEDUCTION FOR TEN YEARS OUT OF 15 YEARS STARTING FR OM THE YEAR OF INSTALLATION TO FIFTEEN YEARS THEREFROM. THIS BENEFIT WAS GIVEN SO THAT THE ASSESSEE CAN CLAIM THE DEDUCTION EVEN IF THE BREAK-EVEN POINT IS REACH ED AFTER FIVE OR EVEN AFTER ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 8 - TEN YEARS. THUS, INTENTION WAS ONLY TO MAKE THE ASS ESSEE ELIGIBLE FOR CLAIMING DEDUCTION EVEN IF THE UNIT REQUIRES MUCH MORE TIME TO ACHIEVE THE BREAK-EVEN POINT. HOWEVER, THERE IS NO INDICATION THAT THE INI TIAL YEAR SHOULD NOT BE TAKEN AS YEAR OF INSTALLATION/COMMENCEMENT BUT THE YEAR W HEN THE FIRST TIME THE ASSESSEE OPTS FOR DEDUCTION U/S.80IA OF THE I.T. AC T. EVEN OTHERWISE, THE PLAIN MEANING OF THE WORD 'INITIAL YEAR MEANS THE YEAR O F INSTALLATION/COMMENCEMENT OF BUSINESS OF THE ELIGIB LE UNIT. 7.6 THEREFORE, IN MY HUMBLE OPINION, EVEN AFTER THE AMENDMENT IN SECTION 80IA BY FINANCE ACT 1999, THE SPECIAL BENCH DECISIO N IN THE CASE OF ACIT VS GOLDMINE SHARES & FINANCE PVT. LTD. (SUPRA), WILL R EMAIN APPLICABLE WITHOUT ANY CHANGE IN THE SITUATION, AND THE INITIAL YEAR H AS TO BE TAKEN AS THE YEAR OF INSTALLATION / COMMENCEMENT OF THE BUSINESS OF ELIG IBLE WINDMILL UNITS. 7.7 IN VIEW OF THIS, IT IS HELD THAT THE ASSESSING OFFI CER WAS JUSTIFIED IN DISALLOWING THE CLAIM OF THE DEDUCTION U/S.80IA OF THE ACT WHICH IS UPHELD AND THE APPELLANT'S GROUND IS REJECTED. 8. LEARNED AR SUBMITTED THAT THE ISSUE REGARDING TH E INITIAL YEAR FOR DEDUCTION U/S. 80IA WAS DECIDED IN FAVOUR OF THE AS SESSEE BY THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF VELAYUDHASWAMY SPINNING MILLS (P) LTD. VS. ACIT , (2012), 340 ITR 477 , WHEREIN THE HONBLE HIGH COURT AFTER CONSIDERING THE AMENDMENT MADE BY THE FINANCE ACT, 1999, W.E.F. 1.4.2000 AND ALSO CONSIDE RING THE AMENDED SECTION 80IA ON PARA 16 OF PAGE 489 OF THE ORDER CO NCLUDED THAT LOSS IN THE YEAR EARLIER TO THE INITIAL ASSESSMENT YEAR ALR EADY ABSORBED AGAINST THE PROFIT OF OTHER BUSINESS CANNOT BE NOTIONALLY BROUG HT FORWARD AND SET OFF AGAINST THE PROFIT OF THE ELIGIBLE BUSINESS AS NO S UCH MANDATE WAS PROVIDED U/S.80IA(5). HE FURTHER PLACED RELIANCE ON THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF RANGAM MA STEELS AND MALLEABLES VS. ACIT, (2010), 6 TAXMANN.COM 47 (CHEN NAI) AND SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE D ECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. GOLDM INE SHARES AND FINANCE (P.) LTD., (2008), 113 ITD 209 (AHD) (SB), ARRIVED AT THE CONCLUSION THAT SUB SECTION (5) WOULD COME INTO OPE RATION ONLY IN THE ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 9 - YEAR IN WHICH THE ASSESSEE STARTED CLAIMING DEDUCTI ON U/S.80IA, I.E., FROM THE INITIAL YEAR AND DEPRECIATION RELATING TO THE Y EARS PRIOR TO THE INITIAL ASSESSMENT YEAR CANNOT BE BROUGHT BACK NOTIONALLY T O BE ADJUSTED AGAINST THE INCOME OF THE INITIAL OR SUBSEQUENT ASSESSMENT YEARS. IT WAS HELD THAT THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL I N THE CASE OF GOLDMINE SHARES & FINANCE (P) LTD. (SUPRA) WOULD APPLY TO TH E 10 CONSECUTIVE YEARS STARTING FROM THE INITIAL YEAR IN WHICH THE A SSESSEE EXERCISES ITS OPTION TO AVAIL THE DEDUCTION U/S. 80IA. 9. ON THE OTHER HAND, LEARNED DR RELIED ON THE DECI SION OF AHMEDABAD SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF GOLDMINE SHARES AND FINANCE (P.) LTD (SUPRA) AND SUBMITTED T HAT SECTION 80IA(5) WOULD APPLY AND THE LOSSES OF THE EARLIER YEARS WER E TO BE BROUGHT FORWARD NOTIONALLY AND ADJUSTED AGAINST THE PROFIT OF THE INITIAL YEAR OF THE ASSESSEE FROM ELIGIBLE BUSINESS AS IF THIS WAS THE ONLY BUSINESS CARRIED ON BY THE ASSESSEE. IT WAS THE ARGUMENT OF THE LEARNED DR THAT THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF VEL AYUDHASWANY SPINNING MILLS (P) LTD. (SUPRA) WAS NOT A GOOD LAW BECAUSE THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF HYDE RABAD CHEMICALS SUPPLIES LTD. VS ACIT, (2012) 20 TAXMANN. COM 289 ( HYD) HELD THAT THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF VELAYUDHASWANY SPINNING MILLS (P) LTD. (SUPRA) THOU GH NOT OF THE JURISDICTIONAL HIGH COURT PREVAIL OVER ORDER OF THE SPECIAL BENCH EVEN THOUGH THE JURISDICTIONAL BENCH OF THE TRIBUNAL. HO WEVER, WHERE THE JUDGMENT OF NON JURISDICTIONAL HIGH COURT, THOUGH T HE ONLY JUDGMENT ON THE POINT HAS BEEN RENDERED WITHOUT HAVING BEEN INF ORMED ABOUT CERTAIN STATUTORY PROVISIONS THAT ARE DIRECTLY RELEVANT, IT IS NOT TO BE FOLLOWED. IN ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 10 - OUR OPINION, JUDGMENT OF SPECIAL BENCH IN THE CASE OF GOLDMINE SHARES AND FINANCE (P.) LTD (SUPRA) WAS SQUARELY APPLICABL E TO THE ASSESSEE AND FOLLOWING THE SAME WE ARE INCLINED TO DECIDE THE IS SUE AGAINST THE ASSESSEE RELATING TO THE ALLOWABILITY OF DEDUCTION U/S.80IA THAT IN TERMS OF THE PROVISIONS U/S.80IA(5) OF THE IT ACT THE PROFIT FROM THE ELIGIBLE BUSINESS FOR THE PURPOSE OF DETERMINATION OF QUANTU M OF DEDUCTION U/S. 80IA HAS TO BE COMPUTED AFTER DEDUCTION OF THE NOTI ONAL BROUGHT FORWARD LOSSES AND DEPRECIATION OF THE ELIGIBLE BUSINESS EV EN THOUGH THEY HAVE BEEN ALLOWED SET OFF AGAINST OTHER INCOME IN EARLIE R YEARS. 10. IN THE REJOINDER, THE LEARNED AR FOR THE ASSESS EE SUBMITTED BEFORE THE AMENDMENT MADE BY THE FINANCE ACT, 1999 TO SECT ION 80IA, THE INITIAL YEAR OF DEDUCTION WAS DEFINED IN SECTION 80 IA(2)(IV)(B) AS THE YEAR IN WHICH THE ELIGIBLE UNDERTAKING BEGINS TO GENERAT E POWER ANY TIME DURING THE YEAR BEGINNING ON THE 1 ST DAY OF APRIL, 1999 AND ENDING ON 31 ST DAY OF MARCH, 2000. HE SUBMITTED THAT BY THE FINANC E ACT, 1999 THE ORIGINAL SECTION 80IA WAS SPLIT INTO TWO SECTIONS I .E., SECTION 80IA AND SECTION 80IB. HE SUBMITTED THAT IN THE AMENDED SECT ION 80IA SUB SECTION (2) PROVIDES THAT THE DEDUCTION SPECIFIED IN SUB SE CTION (1) MAY AT THE OPTION OF THE ASSESSEE BE CLAIMED BY HIM FOR ANY 10 CONSECUTIVE ASSESSMENT YEARS OUT OF 15 YEARS BEGINNING FROM THE YEAR IN WHICH THE UNDERTAKING GENERATE POWERS OR COMMENCE TRANSMISSIO N OR DISTRIBUTION OF POWER. THUS, HIS SUBMISSION WAS THAT THE INITIAL YEAR OF DEDUCTION WAS LEFT TO THE OPTION OF THE ASSESSEE AND THE ASSESSEE COULD CLAIM DEDUCTION FOR ANY 10 CONSECUTIVE ASSESSMENT YEARS OUT OF 15 Y EARS BEGINNING FROM THE YEAR IN WHICH THE UNDERTAKING BEGINS TO GENERAT E POWER. HE FURTHER SUBMITTED THAT IN THE AMENDED SECTION 80IA THERE WA S NO PROVISION AS ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 11 - ORIGINALLY EXISTED U/S. 80IA(5) OF THE ACT. HE SUBM ITTED THAT IN SECTION 80IB (13) IT HAS BEEN PROVIDED THAT PROVISION CONTA INED IN SUB SECTION (5) OF SECTION 80IA SO FAR AS MAY BE APPLIED TO ELIGIBL E BUSINESS UNDERTAKING OF THAT SECTION. 11. LEARNED AR ALSO RELIED UPON THE DECISION OF HON BLE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF MOHAN BREWERIE S & DISTILLERIES LTD. VS. ACIT (2009) 116 ITD 241 (CHENNAI). HE ALSO RELI ED UPON THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF RANGAMMA STEEL & MALLEABLES VS. ACIT, 132 TTJ 365 (CHENNAI). HE FURTHER RELIED UPON THE DECISION OF THE BANGALOORU BENCH OF THE TR IBUNAL IN THE CASE OF ANIL H. LAD VS. DCIT, (2012), 25 TAXMANN.COM 454 (B ANG). HE FURTHER RELIED UPON THE DECISION OF MUMBAI BENCH OF THE TRI BUNAL IN THE CASE OF SHEVIE EXPORTS VS. JCIT, 33 TAXMANN.COM 446 (MUM). 12. LEARNED DR ALSO RELIED ON THE DECISION OF AHMED ABAD BENCH (3 RD MEMBER) IN THE CASE OF KANEL OIL AND EXPORT INDUSTR IES LTD. VS. JCIT (2009) 121 ITD 596 (AHD) (TN) AND SUBMITTED THAT IT HAS BEEN HELD THAT JUDGMENT OF THE NON JURISDICTIONAL HIGH COURT THOUG H THE ONLY THE JUDGMENT ON THE POINT HAS BEEN RENDERED WAS NOT BIN DING ON THE TRIBUNAL AND THEREFORE, IT WAS THE SUBMISSION OF THE LEARNED DR THAT FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF GOLDMINE SHARES AND FINANCE (P.) LTD (SUPRA) THE ISSUE SHOUL D BE DECIDED IN FAVOUR OF THE ASSESSEE. 13. LEARNED AR OF THE ASSESSEE COUNTERED THE ARGUME NT OF THE LEARNED DR BY POINTING OUT THAT IN THE DECISION OF THE 3 RD MEMBER OF THE ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 12 - AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF KANE L OIL AND EXPORT INDUSTRIES LTD. (SUPRA), IT WAS HELD THAT WHERE THE JUDGMENT OF THE NON JURISDICTIONAL HIGH COURT THOUGH THE ONLY JUDGMENT ON THE POINT HAD BEEN RENDERED WITHOUT HAVING BEEN INFORMED ABOUT CE RTAIN STATUTORY PROVISIONS WHICH ARE DIRECTLY RELEVANT, THE JUDGMEN T RENDERED WITHOUT NOTICING A PREVIOUS BINDING PRECEDENT OR A RELEVANT STATUTORY RULE WAS PER INCURIAM, AND THEREFORE, WAS NOT BINDING ON T HE TRIBUNAL. HE SUBMITTED THAT THE HONBLE MADRAS HIGH COURT IN THE CASE OF VELAYUDHASWAMY SPINNING MILLS (P) LTD. (SUPRA) HAD CONSIDERED THE AMENDED PROVISIONS OF SECTION 80IA OF THE ACT WHILE RENDERING THE DECISION AND IT WAS THE ONLY DECISION OF THE HIGH C OURT. NO CONTRARY DECISION HAS BEEN CITED BY THE LEARNED DR AND THERE FORE RESPECTFULLY FOLLOWING THE SAME THE ISSUE SHOULD BE DECIDED IN F AVOUR OF THE ASSESSEE. 14. LEARNED AR FURTHER ARGUED THAT AMOUNT RECEIVED ON SALE OF SALES TAX ENTITLEMENT WAS CAPITAL RECEIPT, THEREFORE, WAS NOT LIABLE TO TAX. FOR THIS HE PLACED RELIANCE ON THE DECISION OF THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. BIRLA VXL LTD. (2013) 32 TAX MANN.COM 330 GUJARAT AND SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT AFTER CONSIDERING THE SCHEME OF SALES TAX ENTITLEMENT HEL D THAT FROM THE PROVISIONS OF THE SAID SCHEME IT CLEARLY EMERGES TH AT THE SUBSIDY THOUGH COMPUTED IN TERMS OF SALES TAX DEFERMENT OR WAIVER IN ESSENCE IT WAS MEANT FOR CAPITAL OUTLAY EXPENDED BY THE ASSESSEE F OR SET UP OF THE UNIT IN CASE OF A NEW INDUSTRIAL UNIT AND FOR EXPANSION AND DIVERSIFICATION OF AN EXISTING UNIT. AS NOTED SUCH SUBSIDY WAS AVAILABLE ONLY TO A NEW INDUSTRIAL UNIT OR A UNIT UNDERTAKING EXPANSION OR DIVERSIFICATION. FIXED CAPITAL INVESTMENT HAS BEEN DEFINED AS TO INCLUDE V ARIOUS INVESTMENTS IN ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 13 - LAND UNDER USE, NEW CONSTRUCTION, PLANT AND MACHINE RY ETC. THE ENTITLEMENT WAS RELATED TO PER CENTAGE OF VARIOUS C APITAL INVESTMENTS. IT IS UNDOUBTEDLY TRUE THAT SUCH SUBSIDY WAS COMPUTED IN TERMS OF SALES TAX DEFERMENT AND NECESSARILY THEREFORE, WOULD ACCRUE T O AN INDUSTRY ONLY ONCE A COMMERCIAL PRODUCTION COMMENCES. HOWEVER THI S BY ITSELF WOULD NOT BE EITHER A SOLE OR CONCLUDING FACTOR. IN THE C ASE OF SAHANY STEEL PRESS WORKING LTD. AND OTHERS VS. CIT REPORTED IN 2 28 ITR 253, THE APEX COURT HELD AND OBSERVED THAT THE CHARACTER OF THE SUBSIDY IN THE HAND OF THE RECIPIENTS WHETHER REVENUE OR CAPITAL W ILL HAVE TO BE DETERMINED HAVING REGARD TO THE PURPOSE FOR WHICH T HE SUBSIDY IS GIVEN. THE SOURCE OF FUND IS QUITE IMMATERIAL. IF THE PURP OSE IS TO HELP THE ASSESSEE TO SET UP ITS BUSINESS OR COMPLETE A PROJE CT THE MONIES MUST BE TREATED AS HAVING BEEN RECEIVED FOR CAPITAL PURPOSE S. BUT, IF MONIES ARE GIVEN TO THE ASSESSEE FOR ASSISTING HIM IN CARRYING OUT THE BUSINESS OPERATIONS AND GIVEN AFTER THE SATISFACTION OF THE CONDITIONS OF COMMENCEMENT OF PRODUCTION, SUCH SUBSIDY MUST BE TR EATED AS ASSISTANCE FOR THE PURPOSE OF TRADE. HE REFERRED TO PAGES 4 TO 13 OF THE PAPER BOOK NO.2 AND POINTED OUT THERE FROM THAT IT CONTAINS EL IGIBILITY CERTIFICATE FOR SALES TAX INCENTIVE WHEREIN IT IS STATED THAT THE T OTAL PROJECT COST WAS RS.5 CRORES AND THAT SALES TAX BENEFIT FOR THE YEAR 2006 -07 WAS 1/6 OF ELIGIBLE INVESTMENT WHICH WAS RS.83,33,33/- THUS IT WAS HIS SUBMISSION THAT THE SALES TAX ENTITLEMENT WAS GIVEN FOR SETTING UP OF T HE WINDMILL FARM PROJECT BY THE ASSESSEE FOR A PERIOD OF SIX YEAR, A ND THEREFORE, THE DECISION OF THE HONBLE GUJARAT HIGH COURT WAS APPL ICABLE TO THE ASSESSEE AND HENCE, THE RECEIPT WAS A CAPITAL RECEI PT NOT LIABLE TO TAX AS HELD BY THE HONBLE HIGH COURT. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 14 - 15. ON THE OTHER HAND, THE LEARNED DEPARTMENT REPRE SENTATIVE SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT WAS C ONSIDERING THE SALES TAX DEFERMENT SCHEME OF THE GOVERNMENT OF GUJARAT W HEREAS IN THE CASE OF THE ASSESSEE THE ELIGIBLE UNIT WAS IN THE STATE OF MAHARASTRA, AND THEREFORE, THE DECISION OF HONBLE GUJARAT HIGH COU RT RENDERED IN THE CASE OF BIRLA VXL LTD. (SUPRA) WOULD NOT APPLY TO T HE ASSESSEE. THE OTHER ARGUMENT OF THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS THAT SINCE THE ASSESSEE HAD SOLD THE SALES TAX ENTITLEMENT, THEREF ORE, THE ASSESSEE WOULD NOT BE ELIGIBLE TO CLAIM THE SAME AS CAPITAL RECEIP T NOT LIABLE TO TAX. 16. IN THE REJOINDER, THE LEARNED AR ARGUED THAT TH E SCHEME IN THE CASE OF THE ASSESSEE OF SALES TAX DEFERMENT WAS EXACTLY THE SAME AS THAT OF GUJARAT GOVERNMENT AND THE REVENUE HAS PLACED NO MA TERIAL ON RECORD TO SHOW ANY DISTINGUISHING FACTORS IN THE SAME. HE SUB MITTED THAT MERELY BECAUSE THE ASSESSEE SOLD THE SALES TAX INCENTIVE W HICH IS A CAPITAL ASSET AS HELD BY THE HONBLE GUJARAT HIGH COURT IN THE CA SE OF BIRLA VXL LTD. CANNOT BE A GROUND TO TREAT THE RECEIPT AS REVENUE. 17. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDER OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE CASE OF JIVRAJ TEA LTD., THE ASSESSEE CLAIMED DEDUCTION U/S. 80IA( 4) OF THE ACT ON 100% PROFIT DERIVED FROM GENERATION OF ELECTRICITY FROM WINDMILL SITUATED AT AHMEDNAGAR MAHARASHTRA, JODHA RAJASTHAN AND CHITRAD URGA KARNATAKA. THE ASSESSING OFFICER OBSERVING THAT SINCE THE ASSE SSEE HAD CARRIED FORWARD LOSSES OF EARLIER YEARS, THEREFORE, THE ASS ESSEE WAS NOT ENTITLED TO DEDUCTION U/S.80IA(4) AS AFTER THE ADJUSTMENT OF TH E BROUGHT FORWARD LOSSES THERE WAS NO POSITIVE PROFIT FOR ALLOWING DE DUCTION U/S. 80IA. THE ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 15 - SAME WAS CONFIRMED IN APPEAL BY THE LEARNED CIT(A). THE CASE OF THE REVENUE IS THAT IN VIEW OF THE DECISION OF THE SPEC IAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF GOLDMINE SHARES AN D PRIVATE LIMITED (SUPRA) BROUGHT FORWARD LOSSES AND DEPRECIATION OF EARLIER YEARS HAS TO BE DEDUCTED FROM THE PROFITS OF THE YEARS UNDER CONSID ERATION BEFORE ALLOWING DEDUCTION U/S. 80IA OF THE ACT. ON THE OTH ER HAND, THE CONTENTION OF THE AR OF THE ASSESSEE IS THAT AFTER THE AMENDMENT MADE BY THE FINANCE ACT, 1999 IN SECTION 80IA WHEREBY U/S. 80IA(2) THE ASSESSEE HAS THE OPTION TO CHOOSE THE INITIAL YEAR FOR CLAIM ING THE DEDUCTION U/S. 80IA FOR 10 CONSECUTIVE YEARS WITHIN 15 CONSECUTIVE YEARS FROM THE DATE OF THE COMMENCEMENT OF THE ELIGIBLE UNIT. BY PLACIN G RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF VELAYUDHASWAMY SPINNING MILLS PVT. LTD. (SUPRA) IT WAS THE SUBMISSION OF THE LEARNED DR THAT ONCE THE ASSESSEE SELECTS THE INITIAL YEAR FO R CLAIMING DEDUCTION UNDER SECTION 80 IA (4) THEN THE EARLIER YEARS BROUGHT FORWARD LOSSES AND DEPRECIATIONS NEED NOT BE ADJUSTED AGAIN ST THE PROFITS OF INITIAL YEAR FROM THE ELIGIBLE UNIT FOR ALLOWING DEDUCTION UNDER SECTION 80IA TO THE ASSESSEE. THE PROVISIONS OF SECTION 80 IA (5) S HALL APPLY FOR THE YEARS AFTER THE INITIAL YEAR FOR COMPUTING THE DEDUCTION ALLOWABLE TO THE ASSESSEE UNDER SECTION 80IA OF THE ACT. 18. WE FIND FORCE IN THE SUBMISSION OF THE LEARNED AR OF THE ASSESSEE. WE ALSO FIND THAT IT IS AN UNDISPUTED FACT THAT IN ALL THE APPEALS UNDER CONSIDERATION THE INITIAL YEAR CHOSEN BY THE ASSESS EE FOR CLAIMING DEDUCTION IS AFTER 1-4-2000 WHEN THE AMENDED PROVIS ION OF SECTION 80IA WAS APPLICABLE. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 16 - 19. SECTION 80IA, WHICH HAS BEEN SUBSTITUTED W.E.F. 1 ST APRIL 2000, PROVIDES THAT WHERE THE GROSS TOTAL INCOME OF AN AS SESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING FROM AN Y ELIGIBLE BUSINESS REFERRED TO IN SUB-SECTION 4, THERE SHALL, IN ACCOR DANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED IN COMPU TING THE DEDUCTION OF AN AMOUNT EQUAL TO 100% OF THE PROFITS AND GAINS DE RIVED FROM SUCH BUSINESS FOR 10 CONSECUTIVE YEARS. SUBSTITUTED SUB- SECTION (2) OF SECTION 80IA, PROVIDES THAT AN OPTION IS GIVEN TO THE ASSES SEE FOR CLAIMING ANY 10 CONSECUTIVE ASSESSMENT YEAR OUT OF 15 YEARS BEGINNI NG FROM THE YEAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AN D BEGIN TO OPERATE. THE 15 YEARS IS THE OUTER LIMIT WITHIN WHICH THE AS SESSEE CAN CHOOSE THE PERIOD OF CLAIMING THE DEDUCTION. SUB-SECTION (5) I S A NON-OBSTANTE CLAUSE WHICH DEALS WITH THE QUANTUM OF DEDUCTION FOR AN EL IGIBLE BUSINESS. THE RELEVANT PROVISION OF SUB-SECTION (5) OF SECTION 80 IA, READS AS UNDER:- (5) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT, THE PROFITS AND GAINS OF AN ELIGIBLE BUSINESS TO WHICH THE PROVISIONS OF SUB-SECTION (1) APPLY SHALL, FOR THE PURPOSES OF DETERMINING THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR, BE COMPUTED AS IF SUCH ELIGIBLE BUSINESS WERE THE ONLY SOURCE OF INCO ME OF THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE INITIAL AS SESSMENT YEAR AND TO EVERY SUBSEQUENT ASSESSMENT YEAR UP TO AND INCLUDIN G THE ASSESSMENT YEAR FOR WHICH THE DETERMINATION IS TO BE MADE. 20. FROM A PLAIN READING OF THE ABOVE, IT CAN BE GA THERED THAT IT IS A NON- OBSTANTE CLAUSE WHICH OVERRIDES THE OTHER PROV ISIONS OF THE ACT AND IT IS FOR THE PURPOSE OF DETERMINING THE QUANTUM OF DEDUCTION UNDER SECTION 80IA, FOR THE ASSESSMENT YEAR IMMEDIATELY S UCCEEDING THE INITIAL ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 17 - ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR T O BE COMPUTED AS IF THE ELIGIBLE BUSINESS IS THE ONLY SOURCE OF INCOME. THUS, THE FICTION CREATED IS THAT THE ELIGIBLE BUSINESS IS THE ONLY S OURCE OF INCOME AND THE DEDUCTION WOULD BE ALLOWED FROM THE INITIAL ASSESSM ENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR. IT NOWHERE DEFINES AS T O WHAT IS THE INITIAL ASSESSMENT YEAR. PRIOR TO 1 ST APRIL 2000, THE INITIAL ASSESSMENT YEAR WAS DEFINED FOR VARIOUS TYPES OF ELIGIBLE ASSESSEES UND ER SECTION 80IA(12). HOWEVER, AFTER THE AMENDMENT BROUGHT IN STATUTE BY THE FINANCE ACT, 1999, THE DEFINITION OF INITIAL ASSESSMENT YEAR H AS BEEN SPECIFICALLY TAKEN AWAY. NOW, WHEN THE ASSESSEE EXERCISES THE OP TION OF CHOOSING THE INITIAL ASSESSMENT YEAR AS CULLED OUT IN SUB-SECTIO N (2) OF SECTION 80IA FROM WHICH IT CHOOSES ITS 10 YEARS OF DEDUCTION OUT OF 15 YEARS, THEN ONLY THE LOSSES OF THE YEARS STARTING FROM THE INITIAL ASSES SMENT YEAR ALONE ARE TO BE BROUGHT FORWARD AS STIPULATED IN SECTION 80IA(5). T HE LOSS PRIOR TO THE INITIAL ASSESSMENT YEAR WHICH HAS ALREADY BEEN SET-OFF CANN OT BE BROUGHT FORWARD AND ADJUSTED INTO THE PERIOD OF TEN YEARS FROM THE INIT IAL ASSESSMENT YEAR AS CONTEMPLATED OR CHOSEN BY THE ASSESSEE. IT IS ONLY WHEN THE LOSS HAVE BEEN INCURRED FROM THE INITIAL ASSESSMENT YEAR, THEN THE ASSESSEE HAS TO ADJUST LOSS IN THE SUBSEQUENT ASSESSMENT YEARS AND IT HAS TO BE CO MPUTED AS IF ELIGIBLE BUSINESS IS THE ONLY SOURCE OF INCOME AND THEN ONLY DEDUCTION UNDER SECTION 80IA CAN BE DETERMINED. THIS IS THE TRUE IMPORT OF SECTION 80IA(5). 21. IN THE DECISION OF GOLDMINE SHARES AND FINANCE PVT. LTD. (SUPRA), DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL, THE C LAIM OF DEDUCTION BY THE ASSESSEE HAD STARTED FROM ASSESSMENT YEAR 1996-97 O NWARDS AND THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IA STARTING F ROM THE FIRST YEAR ITSELF I.E., ASSESSMENT YEAR 1996-97. THUS, THE SPECIAL BENCH WA S DEALING WITH THE OPERATION OF SECTION 80IA(5) WHERE THE ASSESSEE HAD FIRST CLAIMED THE DEDUCTION IN THE ASSESSMENT YEAR 1996-97 AND FOR SUBSEQUENT A SSESSMENT YEARS. THIS ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 18 - ASPECT OF THE MATTER HAS BEEN VERY WELL ELABORATED BY THE MADRAS HIGH COURT IN VELAYUDHASWAMY SPINNING MILLS PVT. LTD. (SUPRA) AFT ER CONSIDERING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN GOLDMINE SHARES AND FINANCE PVT. LTD. (SUPRA) AND RELEVANT PROVISIONS OF THE ACT I.E ., PRE AMENDMENT AND POST AMENDMENT HAVE COME TO THE SAME CONCLUSION:- 'FROM READING OF THE ABOVE, IT IS CLEAR THAT THE EL IGIBLE BUSINESS WERE THE ONLY SOURCE OF INCOME, DURING THE PREVIOUS YEAR RELEVANT TO INITIAL ASSESSMENT YEAR AND EVERY SUBSEQUENT ASSESSMENT YEARS. WHEN THE ASS ESSEE EXERCISES THE OPTION, THE ONLY LOSSES OF THE YEARS BEGINNING FROM INITIAL ASSESSMENT YEAR ALONE ARE TO BE BROUGHT FORWARD AND NO LOSSES OF EA RLIER YEARS WHICH WERE ALREADY SET OFF AGAINST THE INCOME OF THE ASSESSEE. LOOKING FORWARD TO A PERIOD OF TEN YEARS FROM THE INITIAL ASSESSMENT IS CONTEMP LATED. IT DOES NOT ALLOW THE REVENUE TO LOOK BACKWARD AND FIND OUT IF THERE IS A NY LOSS OF EARLIER YEARS AND BRING FORWARD NOTIONALLY EVEN THOUGH THE SAME WERE SET OFF AGAINST OTHER INCOME OF THE ASSESSEE AND THE SET OFF AGAINST THE CURRENT INCOME OF THE ELIGIBLE BUSINESS. ONCE THE SET OFF IS TAKEN PLACE IN EARLIE R YEAR AGAINST THE OTHER INCOME OF THE ASSESSEE, THE REVENUE CANNOT REWORK THE SET OFF AMOUNT AND BRING IT NOTIONALLY. FICTION CREATED IN SUB- SECTION DOES NO T CONTEMPLATES TO BRING SET OFF AMOUNT NOTIONALLY. FICTION IS CREATED ONLY FOR THE LIMITED PURPOSE AND THE SAME CANNOT BE EXTENDED BEYOND THE PURPOSE FOR WHIC H IT IS CREATED. 22. IN THE PRESENT CASES, THERE IS NO DISPUTE THAT LOSSES INCURRED BY THE ASSESSEE WERE ALREADY SET OFF AND ADJUSTED AGAINST THE PROFITS OF THE EARLIER YEARS. DURING THE RELEVANT ASSESSMENT YEAR, THE ASS ESSEE EXERCISED THE OPTION UNDER S. 8O-IA(2). IN TAX CASE NOS. 909 OF 2009 AS WELL AS 940 OF 2009, THE ASSESSMENT YEAR WAS 2005-06 AND IN THE TAX CASE NO. 918 OF 2008 THE ASSESSMENT YEAR WAS 2004-05. DURING THE RELEVANT PE RIOD, THERE WERE NO UNABSORBED DEPRECIATION OR LOSS OF THE ELIGIBLE UND ERTAKINGS AND THE SAME WERE ALREADY ABSORBED IN THE EARLIER YEARS. THERE IS A P OSITIVE PROFIT DURING THE YEAR. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 19 - THE UNREPORTED JUDGMENT OF THIS COURT CITED SUPRA C ONSIDERED THE SCOPE OF SUB- S. (6) OF S. 8O-I, WHICH IS THE CORRESPONDING PROVI SION OF SUB-S. (5) OF S. 80- IA. BOTH ARE SIMILARLY WORDED AND THEREFORE WE AGREE EN TIRELY WITH THE DIVISION BENCH JUDGMENT OF THIS COURT CITED SUPRA. IN THE CA SE OF CIT VS. MEWAR OIL &.GENERAL MILLS LTD. (2004) 186 CTR (RAJ) 141: (2004) 271ITR 311 (RAJ), THE RAJASTHAN HIGH COURT ALSO CONSIDERED THE SCOPE OF S . 80-I AND HELD AS FOLLOWS:- 'HAVING CONSIDERED THE RIVAL CONTENTIONS WHICH FOLL OW ON THE LINE NOTICED ABOVE, WE ARE OF THE OPINION THAT ON FINDING THE FA CT THAT THERE WAS NO CARRY FORWARD LOSSES OF 1983-84, WHICH COULD BE SET OFF A GAINST THE INCOME OF THE CURRENT ASST. YR, 1984-85, THE RECOMPUTATION OF INC OME FROM THE NEW INDUSTRIAL UNDERTAKING BY SETTING OFF THE CARRY FORWARD OF UNA BSORBED DEPRECIATION OR DEPRECIATION ALLOWANCE FROM PREVIOUS YEAR DID NOT S IMPLY ARISE AND ON THE FINDING OF FACT NOTICED BY THE CIT(A), WHICH HAS NO T BEEN DISTURBED BY THE TRIBUNAL AND CHALLENGED BEFORE US, THERE WAS NO ERR OR MUCH LESS ANY ERROR APPARENT ON THE FACE OF THE RECORD WHICH COULD BE R ECTIFIED. THAT QUESTION WOULD HAVE BEEN GERMANE ONLY IF THERE WOULD HAVE BE EN CARRY FORWARD OF UNABSORBED DEPRECIATION AND UNABSORBED DEVELOPMENT REBATE OR ANY OTHER UNABSORBED LOSSES OF THE PREVIOUS YEAR ARISING OUT OF THE PRIORITY INDUSTRY AND WHETHER IT WAS REQUIRED TO BE SET OFF AGAINST THE I NCOME OF THE CURRENT YEAR. IT IS NOT AT ALL REQUIRED THAT LOSSES OR OTHER DEDUCTIONS WHICH HAVE ALREADY BEEN SET OFF AGAINST THE INCOME OF THE PREVIOUS YEAR SHOULD BE REOPENED AGAIN FOR COMPUTATION OF CURRENT INCOME UNDER S.80-I FOR THE PURPOSE OF COMPUTING ADMISSIBLE DEDUCTIONS THEREUNDER. 23. IN VIEW THEREOF, WE ARE OF THE OPINION THAT THE TRIBUNAL HAS NOT ERRED IN HOLDING THAT THERE WAS NO RECTIFICATION POSSIBLE UN DER S. 8O-I IN THE PRESENT CASE, ALBEIT, FOR REASONS SOMEWHAT DIFFERENT FROM T HOSE WHICH PREVAILED WITH THE TRIBUNAL. THERE BEING NO CARRY FORWARD OF ALLOW ABLE DEDUCTIONS UNDER THE HEAD DEPRECIATION OR DEVELOPMENT REBATE WHICH NEEDE D TO BE ABSORBED AGAINST ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 20 - THE INCOME OF THE CURRENT YEAR AND, THEREFORE, RECO MPUTATION OF INCOME FOR THE PURPOSE OF COMPUTING PERMISSIBLE DEDUCTION UNDER S. 8O-I FOR THE NEW INDUSTRIAL UNDERTAKING WAS NOT REQUIRED IN THE PRES ENT CASE. ACCORDINGLY, THIS APPEAL FAILS AND IS HEREBY DISMISSED WITH NO ORDER AS TO COSTS. 24. FROM READING OF THE ABOVE, THE RAJASTHAN HIGH C OURT HELD THAT IT IS NOT AT ALL REQUIRED THAT LOSSES OR OTHER DEDUCTIONS WHI CH HAVE ALREADY BEEN SET OFF AGAINST THE INCOME OF THE PREVIOUS YEAR SHOULD BE R EOPENED AGAIN FOR COMPUTATION OF CURRENT INCOME UNDER SECTION 80-1 FO R THE PURPOSE OF COMPUTING ADMISSIBLE DEDUCTIONS THEREUNDER. WE ALSO AGREE WITH THE SAME. WE SEE NO REASON TO TAKE A DIFFERENT VIEW.' 25. THIS JUDGMENT HAS BEEN FURTHER FOLLOWED BY THE SAME HIGH COURT IN CIT V/S EMERALD JEWEL INDUSTRY (P) LTD. [2011] 53 DTK 2 62 (MAD.). FROM THE ABOVE, RATIO OF THE HIGH COURT, IT IS AMPLY CLEAR T HAT SUB-SECTION (5) OF SECTION 8OIA WILL COME INTO OPERATION ONLY FROM THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR. THE OPTION OF CHOOSING THE INITIAL ASSESSMENT YEAR IS WHOLLY UPON THE ASSESSEE IN THE POST AMENDMENT P ERIOD I.E., AFTER 1ST APRIL 2000 BY VIRTUE OF SECTION 80IA(2). 26. NOW COMING TO THE DECISION OF THE MUMBAI BENCH TRIBUNAL IN PIDILITE INDUSTRIES (SUPRA) AS RELIED UPON BY THE LEARNED DE PARTMENTAL REPRESENTATIVE IN THIS CASE, THE TRIBUNAL WAS DEALING WITH REGARD TO TWO ELIGIBLE UNITS ONE GUJARAT UNIT WHICH WAS SET-UP IN THE YEAR 1995-96 A ND SECOND MAHARASHTRA UNIT IN THE YEAR 2000-01. WITH REGARD TO GUJARAT UN IT, THE TRIBUNAL HELD THAT PRE-AMENDMENT DEFINITION OF INITIAL ASSESSMENT YEAR WOULD BE APPLICABLE I.E., PROVISIONS WHICH WERE PRIOR TO 1ST APRIL 1999 WILL APPLY BECAUSE THE ASSESSEE HAD STARTED COMMERCIAL PRODUCTION IN THE FINANCIAL YEAR 1996-97. REGARDING SECOND UNIT, THE TRIBUNAL HELD THAT THE JUDGMENT OF MADRAS HIGH COURT IN VELAYUDHASWAMY SPINNING MILLS PVT. LTD. (SUPRA) WIL L NOT BE APPLICABLE ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 21 - BECAUSE THE INCOME FROM NON ELIGIBLE BUSINESS WAS S ET-OFF FROM THE LOSS OF ELIGIBLE BUSINESS IN THE YEAR OF COMMENCEMENT. IN T HIS CASE, IT WAS NOT AN ISSUE AS TO WHETHER THE LOSSES PERTAINED TO PRIOR TO INIT IAL ASSESSMENT YEAR OR AFTER THE INITIAL ASSESSMENT YEAR. IF THE LOSSES HAVE BEEN IN CURRED IN THE ELIGIBLE UNIT AND HAS BEEN SET-OFF AGAINST THE NON- ELIGIBLE UNIT AFT ER THE INITIAL ASSESSMENT YEAR, THEN THE RATIO LAID DOWN BY THE TRIBUNAL IS IN FULL CONSONANCE WITH THE LAW. HOWEVER, THIS IS NOT THE CASE IN THE INSTANT CASE B ECAUSE THE LOSS PERTAINED TO PRIOR TO INITIAL ASSESSMENT YEAR WHICH HAVE BEEN SE T-OFF AGAINST THE PROFITS OF NON-ELIGIBLE UNITS. THE BEGINNING OF THE INITIAL AS SESSMENT YEAR AS ADOPTED BY THE ASSESSEE IS ASSESSMENT YEAR 2008-09 ONLY AND, T HEREFORE, THE LOSS OF ASSESSMENT YEAR 2007-08 CANNOT BE NOTIONALLY CARRIE D FORWARD WITHIN THE MEANING OF SECTION 80IA(5). THUS, THE RELIANCE PLAC ED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE DECISION OF PIDI LITE INDUSTRIES (SUPRA), WILL NOT BE APPLICABLE IN THE PRESENT CASE. 27. THE OTHER DECISION HEAVILY RELIED UPON BY THE L EARNED DEPARTMENTAL REPRESENTATIVE IN HYDERABAD CHEMICAL SUPPLIES LTD. (SUPRA) WILL ALSO NOT APPLY TO THE FACTS OF THE PRESENT CASE, AS IN THAT CASE, THE WIND MILL STARTED ITS OPERATION ON 3IST MARCH 1999 AND THE FIRST YEAR OF OPERATION WAS ASSESSMENT YEAR 1999-2000. THUS, IN THE ASSESSMENT YEAR 1999-2 000, THE DEFINITION OF 'INITIAL ASSESSMENT YEAR' WAS ALREADY THERE IN THE ACT AND THERE WAS NO PROVISION THROUGH WHICH THE ASSESSEE COULD HAVE CHO SEN ITS INITIAL ASSESSMENT YEAR. THIS PROVISION WAS BROUGHT IN STATUTE W.E.F. IST APRIL 2000, BY VIRTUE OF SECTION 8OIA. THUS, THIS DECISION ALSO WILL NOT HEL P THE CASE OF THE M/S. SHEVIE EXPORTS DEPARTMENT. IN ASSEESSEES CASE, AS SPECIF ICALLY STATED IN THE FOREGOING PARAGRAPHS, THE ASSESSEES CLAIM FOR INITIAL ASSESS MENT YEAR I.E., ASSESSMENT YEAR 2008-09 AND ITS CLAIM FOR DEDUCTION UNDER SECT ION 80A MADE FOR THE FIRST TIME FROM ASSESSMENT YEAR 2008-09, HAS NOT BEEN DIS PUTED. THUS, THE AFORESAID JUDGMENT RELIED UPON BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE WILL NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 22 - 28. WE REITERATE IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE INITIAL ASSESSMENT YEAR IN THE CASE OF JIVRAJ TEA & INDUSTR IES LTD. IS THE ASSESSMENT YEAR 2004-05 AND IN THE CASE OF JIVRAJ T EA LTD. IS ASSESSMENT YEAR 2007-08 AND IT IS ALSO NOT IN DISPU TE THAT THE ASSESSEE HAS NOT SUFFERED ANY LOSS IN THE SAID YEAR, THEREFO RE, IN OUR CONSIDERED OPINION NO BROUGHT FORWARD LOSS OR DEPRECIATION COU LD BE REDUCED FOR DETERMINING THE AMOUNT IN WHICH THE DEDUCTION IS TO BE ALLOWED U/S. 80IA OF THE ACT. WE, THEREFORE, SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE AND ALLOW THE GROUND OF APPEAL OF THE AS SESSEE. 29. THE OTHER ISSUE IN THIS APPEAL PERTAINS TO WHET HER DEDUCTION U/S. 80IA WILL BE ALLOWABLE TO THE ASSESSEE ON THE SALE PROCEEDS OF SALES TAX ENTITLEMENT RECEIVED BY THE ASSESSEE DURING THE YEA R UNDER CONSIDERATION. 30. THE AO AS WELL AS THE LEARNED CIT(A) FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT, 317 ITR 128, WHEREIN IT HAS BEEN HELD THAT PROFIT ON SALE O F DEPB AND DUTY TRADE BACK ARE NOT DERIVED FROM THE ELIGIBLE BUSINESS AND THEREFORE NOT ELIGIBLE FOR DEDUCTION U/S. 80IA OR 80IB OF THE ACT. 31. LEARNED AR FOR THE ASSESSEE DURING THE COURSE O F HEARING SUBMITTED THAT THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE LEARNED CIT(A) WAS THAT THE SALES TAX INCENTIVE WAS A CAPIT AL RECEIPT OF THE ASSESSEE AND HENCE NOT LIABLE TO TAX AND AND FOR TH IS PROPOSITION HE RELIED ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT I N THE CASE OF CIT VS. BIRLA VXL LTD. (SUPRA). HE CONTENDED THAT THE LEARN ED CIT(A) HAS NOT ADJUDICATED UPON THIS CONTENTION OF THE ASSESSEE AN D NEITHER HAS RECORDED ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 23 - THE SAME IN HIS ORDER WHICH WAS SUBMITTED TO HIM BY WAY OF A WRITTEN SUBMISSION. HE THEREFORE CONTENDED THAT IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IT HAS TO BE HELD THAT THE SALES TAX INCENTIVES ARE CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE NOT LIABLE TO TAX. IN THE ALTERNATE SUBMISSION HE CONTENDED THAT IF IT IS SO HELD THAT ITS SALES TAX INCENTIVE WAS LIABLE TO TAX THAT IN VIEW OF THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF CIT V/S. MEGHALAY A STEEL LTD., (2013) 217 TAXMANN.COM 184 (GAU), THE ASSESSEE IS ENTITLED FOR DEDUCTION ON THE SALE OF SALES TAX ENTITLEMENT U/S.80IA OF THE A CT BECAUSE IN THAT CASE THE HONBLE HIGH COURT HAS HELD THAT TRANSPORT SUBS IDY, POWER SUBSIDY, INTEREST SUBSIDY AND INSURANCE SUBSIDY REDUCES THE COST OF PRODUCTION OF AN INDUSTRIAL UNDERTAKING AND THEREFORE THERE IS FI RST DEGREE NEXUS BETWEEN THE SAID SUBSIDIES AND PROFITS AND GAINS DE RIVED BY INDUSTRIAL UNDERTAKING AND THE ASSESSEE WAS ENTITLED FOR DEDUC TION U/S. 80IB IN RESPECT OF SUBSIDIES SO GRANTED. WE FIND THAT NEITH ER OF THE PARTIES HAVE FILED BEFORE US COPY OF THE SALES TAX ENTITLEMENT S CHEME OF THE GOVERNMENT OF MAHARASHTRA UNDER WHICH THE ASSESSEE HAS RECEIVED THE SALES TAX ENTITLEMENT. WITHOUT GOING THROUGH THE SC HEME IT IS NOT POSSIBLE FOR US TO ADJUDICATE THE ISSUE COMPLETELY. IN OUR C ONSIDERED OPINION, IT SHALL BE IN THE INTEREST OF JUSTICE TO REMIT THIS M ATTER BACK TO THE FILE OF THE AO FOR ADJUDICATION AFRESH. 32. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF B IRLA VXL LTD. HAS HELD AS UNDER: 11. FROM THE ABOVE PROVISIONS CONTAINED IN THE SAID SCH EME, IT CAN BE IMMEDIATELY NOTICED THAT THE SCHEME WAS FRAMED AS A PART OF GOVERNMENT'S INITIATIVE TO ENCOURAGE MODERNIZATION OF EXISTING I NDUSTRIES IN UNDER- DEVELOPED AREAS. THE MAIN PURPOSE OF THE SCHEME WAS TO ACCELERATE THE INDUSTRIAL DEVELOPMENT AND TO DISPERSE INDUSTRIES T O UNDER-DEVELOPED AREAS AS ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 24 - WELL AS TO PROVIDE ADDITIONAL EMPLOYMENT. THE GOVER NMENT RESPONDED POSITIVELY TO THE REPRESENTATIONS THAT ON ACCOUNT O F RAPID CHANGES IN TECHNOLOGY, THERE WAS CONSTANT NEED FOR UPGRADATION OF TECHNOLOGY IN INDUSTRIES. IT WAS, THEREFORE, NECESSARY TO ENCOURA GE MODERNIZATION. AS PART OF SUCH A SCHEME, INCENTIVES WERE GIVEN TO INDUSTRIES EXISTING IN UNDER- DEVELOPED AREAS TO UNDERTAKE MODERNIZATION. THE SCH EME THUS WAS PRIMARILY CONCERNED WITH THE MODERNIZATION OF THE EXISTING IN DUSTRIES. IT WAS NOT A SCHEME EITHER FOR DEVELOPMENT OF NEW INDUSTRIES IN SPECIFIED AREAS, OR FOR MERE EXPANSION OF THE EXISTING PRODUCTION CAPACITIE S OF THE INDUSTRIES. THUS, THE MAIN PURPOSE OF THE RESOLUTION WAS TO MODERNIZE INDUSTRIES, WHICH ORDINARILY WOULD COME AT A CONSIDERABLE COST, PARTI CULARLY WHEN SUCH INDUSTRIES WERE LOCATED IN UNDER-DEVELOPED AREAS. I T CAN BE IMAGINED THAT THE INDUSTRIES WILL FIND IT DIFFICULT WITHOUT GOVERNMEN T'S INCENTIVE TO UNDERTAKE LARGE-SCALE MODERNIZATION WITH THE USE OF MODERN TE CHNOLOGY. IT WAS FOR THIS PURPOSE THAT THE SAID SCHEME WAS FRAMED GIVING BENE FIT OF THE SALES TAX WAIVER/DEFERMENT, AT THE OPTION OF THE INDUSTRY CON CERNED. SUCH BENEFIT HAD TO BE COMPUTED IN TERMS OF THE PERCENTAGE OF THE FI XED CAPITAL INVESTMENT. BENEFITS WERE TO LAST FOR SPECIFIED PERIODS AND UPT O EXHAUSTING MAXIMUM LIMIT COMPUTED IN TERMS OF THE PERCENTAGE OF THE FIXED CA PITAL INVESTMENT. 12. IT CAN THUS BE STRAIGHTAWAY SEEN THAT THE BENEF IT, THOUGH COMPUTED IN TERMS OF THE SALES TAX LIABILITY IN THE HANDS OF TH E RECIPIENT, THE SAME WAS NOT MEAN TO GIVE ANY BENEFIT ON DAY-TO-DAY FUNCTIONING OF THE BUSINESS, OR FOR MAKING THE INDUSTRY MORE PROFITABLE. THE PRINCIPLE AIM OF THE SCHEME WAS TO COVER THE CAPITAL OUTLAY ALREADY MADE BY THE ASSESS EE IN UNDERTAKING SPECIAL MODERNIZATION OF ITS EXISTING INDUSTRY. 33. WE, THEREFORE, SET ASIDE THIS ISSUE BACK TO THE FILE OF THE AO TO RE- ADJUDICATE THE SAME AFTER CONSIDERING THE SCHEME OF SALES TAX ENTITLEMENT OF THE GOVERNMENT OF MAHARASTRA UNDER WHICH THE ASS ESSEE HAS RECEIVED SALES TAX ENTITLEMENT AND ALSO AFTER TAKING INTO CO NSIDERATION THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF BI RLA VXL LTD. (SUPRA) QUOTED ABOVE. NEEDLESS TO MENTION THAT THE AO SHALL ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE RE-AD JUDICATING THE ISSUE AFRESH. WE ORDER ACCORDINGLY THUS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 34. THE ONLY OTHER GROUND OF APPEAL TAKEN BY THE AS SESSEE IN ITA NO.3011/AHD/2010 IN ASSESSMENT YEAR 2004-05 WAS THA T THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS CONFIRMING THE ACT ION OF THE AO OF ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 25 - ISSUING THE INVALID NOTICE U/S.148 OF THE ACT TO RE OPEN THE CONCLUDED ASSESSMENT IN THE CASE OF THE APPELLANT. 35. AT THE TIME OF HEARING, THE LEARNED AR OF THE A SSESSEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF APPEAL AND M ADE ENDORSEMENT TO THIS EFFECT IN THE APPEAL MEMO ON THE GROUNDS OF AP PEAL TAKEN BY THE ASSESSEE. THEREFORE, THIS GROUND OF APPEAL OF THE A SSESSEE IS DISMISSED FOR WANT OF PROSECUTION. 36. IN THE REVENUES APPEAL IN ITA NO.3093/AHD/2010 , THE FIRST GROUND IS DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) DELETING THE ADDITION U/S. 40A(2)(B) OF RS.9,34,64,731/-, THOUGH THE ASSESSEE PURCHASED GOODS ON HIGHER RATE FROM SISTER CONCERN. 37. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS ING OFFICER OBSERVED THAT ASSESSEE HAD MADE PURCHASES AT THE UNIT PRICE OF 94.22 FROM OUTSIDE PARTIES AND AT THE RATE OF RS.96/-, RS.116/- AND RS .127/- FROM M/S. HARKCHAND NONCHAND PVT. LTD., AND M/S. SURIN CORPOR ATION RESPECTIVELY WHICH ARE RELATED CONCERNS U/S. 40A(2)(B) OF IT ACT . THE ASSESSING OFFICER ALSO OBSERVED THAT THE ASSESSEE HAD NOT MAI NTAINED FULL DETAILS OF QUALITY OF PURCHASES, THERE WAS NO COMMERCIAL EXPED IENCE IN MAKING PAYMENT TO RELATED PARTIES IN EXCESS OF THE MARKET RATE AND HENCE MADE ADDITION OF RS.9,34,64,731/- U/S. 40A(2)(A). 38. ON APPEAL, THE LEARNED CIT(A) OBSERVED THAT THE FACTS OF THE PRESENT YEAR OF APPEAL WERE SIMILAR TO THE FACTS IN THE EARLIER ASSESSMENT YEAR 2006-07 WHEREIN ADDITIONS MADE ON THIS GROUND WAS CONFIRMED BY ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 26 - THE LEARNED CIT(A) HOWEVER THE AHMEDABAD BENCH OF T HE TRIBUNAL DELETED THE ADDITION VIDE ORDER DATED 26.3.2010 IN ITA NO.3007/AHD/2009 OBSERVING THAT YARD STICK ADOPTED BY THE ASSESSING OFFICER WAS AVERAGE PURCHASE PRICE OF TEA WITHOUT A SCERTAINING THE PRICE PREVAILING IN THE MARKET ON THE DATE WHEN PURCHASE WAS MADE FROM SISTER CONCERNS WITH THAT FROM OUTSIDE PARTY AND WITHOUT C OMPARING THE EXACT QUALITY AND THE TRANSACTIONS OF PURCHASES FROM THE SISTER CONCERNS WERE NOT THE SHAM TRANSACTIONS. THEREFORE, FACTS BEING I DENTICAL FOLLOWING THE PRECEDENT, THE LEARNED CIT(A) DELETED THE ADDITION. 39. LEARNED DR RELIED UPON THE ORDER OF THE ASSESSI NG OFFICER WHEREAS THE LEARNED AR OF THE ASSESSEE SUPPORTED TH E ORDER OF THE CIT(A). 40. WE FIND THAT IN THE INSTANT CASE THE ADDITION O F RS.9,34,64,731/- MADE U/S. 40A(2)(A) OF THE ASSESSING OFFICER WAS DE LETED BY LEARNED CIT(A) BY FOLLOWING THE ORDER OF THE TRIBUNAL IN AS SESSEES OWN CASE IN THE IMMEDIATE PRECEDING YEAR 2006-07. THE LEARNED D EPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT NAY SPECIFIC ERR OR IN THE ORDER OF LEARNED CIT(A). HE ALSO COULD NOT BRING ANY MATERIA L ON RECORD TO SHOW THAT THE ORDER OF THE TRIBUNAL FOR A.Y. 2006-07 WAS VARIED IN APPEAL BY ANY HIGH FORUM, THEREFORE, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE GROUND OF THE REVENUE. 41. THE SECOND GROUND OF APPEAL TAKEN BY THE REVENU E IS THAT THE LEARNED CIT ERRED IN DELETING THE DISALLOWANCE OF R S.1,90,31,082/- ON ACCOUNT OF DISPROPORTIONATE INCREASE IN SALES PROMO TION EXPENSES. ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 27 - 42. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS ING OFFICER FOUND THAT THERE WAS DISPROPORTIONATE INCREASE IN ADVERTISEMEN T EXPENSES WHICH HAS JUMPED FROM RS.1,42,59,203/- IN ASSESSMENT YEAR 200 6-07 TO RS.3,74,23,961/- IN ASSESSMENT YEAR 2007-08 WHICH W AS 162.45% WHEREAS THE TURNOVER INCREASED VERY NOMINALLY FROM RS.57,11,98,752/- IN ASSESSMENT YEAR 2006-07 TO RS.73,57,15,176/- IN ASS ESSMENT YEAR 2007-08 BEING 28.8%, THEREFORE, HE DISALLOWED THE A MOUNT OF RS.1,90,31,082/- FOR THE REASON THAT THE SALES HAVE NOT INCREASED IN PROPORTION AS INCREASE IN THE ADVERTISEMENT EXPENSE S AND THERE IS NO NEXUS BETWEEN ADVERTISEMENT AND SALES. 43. ON APPEAL THE LEARNED CIT(A) OBSERVED THAT THE FACTS IN THE PRESENT YEAR WERE IDENTICAL TO THE FACTS OF THE CASE IN THE ASSESSMENT YEAR 2006-07 WHEREIN ADDITION MADE ON THIS GROUND WAS DELETED BY THE LEARNED CIT(A) AND THE ORDER OF THE LEARNED CIT(A) WAS CONFIRMED I N APPEAL OF THE REVENUE TO THE TRIBUNAL IN ITA NO. 3007/AHD/2009, O RDER DATED 26.3.2010 ON THE GROUND THAT PAYMENTS WERE MADE THR OUGH ACCOUNT PAYEE CHEQUES AND BANK DRAFTS AND NONE OF THE PARTI ES WERE RELATED TO THE ASSESSEE COMPANY OR ITS DIRECTOR. THE DETAILS AND V OUCHERS WERE MAINTAINED AND VERIFIABLE AND THE GENUINENESS WAS N OT DOUBTED. THEREFORE, FACTS BEING IDENTICAL FOLLOWING THE PREC EDENT, THE LEARNED CIT(A) DELETED THE ADDITION. 44. WE FIND THAT IN THE INSTANT CASE, THE ASSESSING OFFICER DISALLOWED PROPORTIONATE ADVERTISEMENT EXPENSES AMOUNTING TO R S.1,90,31,082/- FOR THE REASON THAT SALES HAVE NOT INCREASED IN PROPORT ION TO THE INCREASE IN THE ADVERTISEMENT EXPENSES AND THERE WAS NO NEXUS B ETWEEN THE ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 28 - ADVERTISEMENT EXPENSES AND SALES ACHIEVED. ON APPEA L, THE LEARNED CIT(A) BY FOLLOWING THE ORDER OF THE TRIBUNAL IN TH E ASSESSEES OWN CASE IN THE IMMEDIATE PRECEDING YEAR 2006-07 DELETED THE ADDITION. THE TRIBUNAL IN THE EARLIER YEAR HAS HELD THAT THE PAYM ENTS WERE MADE THROUGH ACCOUNT PAYEE CHEQUES AND BANK DRAFT AND NO NE OF THE PARTIES WERE RELATED TO THE ASSESSEE COMPANY OR ITS DIRECTO R AND DETAILS AND VOUCHERS WERE MAINTAINED VERIFIABLY AND GENUINENESS OF THE EXPENDITURE WAS NOT IN DOUBT. LEARNED DEPARTMENTAL REPRESENTATI VE COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED CIT(A). THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING AN Y MATERIAL ON RECORD TO SHOW THAT THE ORDER OF THE TRIBUNAL FOR A.Y. 200 6-07 WAS VARIED IN APPEAL IN HIGH FORUM. THEREFORE, WE CONFIRM THE ORD ER OF THE LEARNED CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 46. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.3011/AHD/2010 IS PARTLY ALLOWED IN THE MANNER INDICATED ABOVE. TH E APPEAL OF THE ASSESSEE IN ITA NOS. 3012/AHD/2010 AND 3013 ARE ALL OWED IN THE MANNER INDICATED ABOVE. THE APPEAL OF THE REVENUE IN ITA N O.3093/AHD/2010 IS DISMISSED. SD/- SD/- (KUL BHARAT) ( N.S. SAINI) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD; DATED 19/12 /2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD ITA NOS.3011, 302, 3013, 3093/AHD/2010 JIVRAJ TEA & INDUSTRIES LTD. SURAT VS. ACIT SURAT. FOR A.Y. 2007-08 - 29 - 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD