A.C.I.T.-20(3), MUMBAI V. RELISHAH EXPORTS, MUMBAI

ITA 5002/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9975 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 05-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: A N SHAH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH F, MU MBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5002/MUM/2016 (ASSESSMENT YEAR- 2012-13) ACIT-20(3) R. NO. 615, 2 ND FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-12. VS. M/S RELISHAH EXPORTS 214, 2 ND FLOOR, T V INDUSTRIAL ESTATE, S K AHIRE MARG, WORLI, MUMBAI-400030 PAN:AAAFR6167P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAM TIWARI (DR) ASSESSEE BY : SHRI A. N. SHAH (AR) DATE OF HEARING : 20.03.2018 DATE OF PRONOUNCEMENT : 20.03.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY REVENUE UNDER SECTION 253 OF INCOME TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF I NCOME-TAX (APPEALS)-32, MUMBAI, [FOR SHORT THE LD. CIT(A)] DATED 11.05.2016 FOR ASSESSMENT YEAR 2012-2013 WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT DATED 27.03 .2015. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) ERRED IN HOLDING THAT NOTIONAL LO SSES INCURRED BY ASSESSEE CANNOT BE CARRIED FORWARD IN RESPECT OF WIND MILL UNIT AND SET OFF OF AGAINST THE PROFIT OF THE INITIAL ASSESSMENT YEAR BEFORE ALLOWING THE DED UCTION UNDER SECTION 80IA. 2. THE LD. CIT(A) ERRED IN ALLOWING ASSESSEES CLAI M OF RS. 32,52,730/- UNDER SECTION 80IA NOTWITHSTANDING THE DECISION OF HONBL E AHMEDABAD TRIBUNAL IN CASE OF ACIT VS. GOLDMINE SHARE AND FINANCE P. LTD. (133 ITD 209) (AHD)(SP). 2. AT THE OUTSET OF HEARING, THE LD. AUTHORIZED REPRES ENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THE GROUNDS OF APPEAL RAISED IN THE PRESENT APPEAL IS ITA NO. 5002/MUM/2016 - M/S RELISHAH EXPORTS 2 COVERED IN FAVOUR OF ASSESSEE IN ASSESSEES OWN CAS E IN ITA NO. 4278/MUM/2015 FOR ASSESSMENT YEAR 2011-12. ON GONE THROUGH THE ORDER OF TRIBUNAL IN ITA NO. 4278/MUM/2015 FOR ASSESSMENT YE AR 2011-12 DATED 24.03.2017, THE LD. DR FOR THE REVENUE HAS FAIRLY C ONCEDED THAT THE GROUND OF APPEAL RAISED BY REVENUE IS SQUARELY COVERED AGAINS T THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE SEEN THAT THE REVENUE HAS RAISED THE IDENTICAL GROUND OF APPEAL AS RAISED IN APPEAL FOR ASSESSMENT YEAR 201-12. WE HAVE NOTED THAT ON IDENTICAL GROUND OF APPEAL IN AS SESSEES OWN CASE, THE TRIBUNAL HAS PASSED THE FOLLOWING ORDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND AFTER THE AMENDMENT IN SECTION 80IA BY THE FINANCE ACT 1999, AN ASSESSEE HAS AN OPTION FOR SELECTING THE INITIAL AS SESSMENT YEAR. THE LOSSES PRIOR TO THE INITIAL ASSESSMENT YEAR WHICH HAS ALREADY BEEN SET OFF CANNOT BE BROUGHT FORWARD AND ADJUSTED INTO THE PERIOD OF 10 YEARS FR OM THE INITIAL ASSESSMENT YEAR AS CHOSEN BY THE ASSESSEE. IT IS ONLY WHEN THE LOSS HAS BEEN INCURRED FROM THE INITIAL ASSESSMENT YEAR, THEN THE ASSESSEE HAS TO A DJUST LOSS IN SUBSEQUENT YEARS AND IT HAS TO BE COMPUTED AS IF ELIGIBLE BUSINESS I S THE ONLY SOURCE OF INCOME AND THEN ONLY DEDUCTIONS U/S 80IA CAN BE DETERMINED. 6.1 THE SPECIAL BENCH DECISION RELIED ON BY THE AO IS NOT APPLICABLE SINCE THE SAME PERTAINS TO AY 1996-97 AND 1997-98 I.E. PRIOR TO THE AMENDMENT. MOREOVER, THE ASSESSEE HAS CLEARLY SHOWN IN THE INSTANT APPEA L THAT THE INITIAL YEAR OF ASSESSMENT FOR CLAIMING OF DEDUCTION IS AY 2010-11. 6.2 IN THE CASE OF SHEVIE EXPORTS (SUPRA), IT HAS B EEN HELD THAT IN TERMS OF PROVISION OF SECTION 80IA(5), LOSS INCURRED PRIOR T O INITIAL ASSESSMENT YEAR OF CLAIMING DEDUCTION IS NOT REQUIRED TO BE NOTIONALLY CARRIED FORWARD AND ADJUSTED AGAINST ELIGIBLE PROFIT SO AS TO DISALLOW A PART OF DEDUCTION CLAIMED. IN THE CASE OF DEVI SEAFOODS LTD. VS. JCIT [2016] 70 TAXMANN.COM 5 7 (VISAKHAPATNAM-TRIB.), IT HAS BEEN HELD THAT IN ORDER TO CLAIM DEDUCTION U/S 80IA, THE INITIAL ASSESSMENT YEAR WOULD MEAN 1ST YEAR ADOPTED BY THE ASSESSEE FOR CLA IMING DEDUCTION AND NOT THE YEAR IN WHICH ELIGIBLE BUSINESS WAS COMMENCED. THE SAME IS REITERATED IN M/S. HYDERABAD CHEMICAL PRODUCTS PVT. LTD. VS. ACIT (ITA NO. 1033/HYD/2015) BY THE ITAT B BENCH HYDERABAD FOR THE A.Y.2008-09. 6.3 IN VIEW OF THE REASONS NARRATED PARA 6 TO 6.2 H ERE-IN-ABOVE, WE UPHOLD THE ORDER PASSED BY THE LEARNED CIT(A). ITA NO. 5002/MUM/2016 - M/S RELISHAH EXPORTS 3 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 4. CONSIDERING THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE ON IDENTICAL SET OF FACT IN EARLIER YEAR, WE FIND THAT THE GROUNDS OF A PPEAL RAISED BY REVENUE ARE COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVEN UE. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF EARLIER YEAR, THE GROUNDS OF APPEAL RAISED BY REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF MARCH 2018. SD/- SD/- ( SHAMIM YAHYA ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 20/03/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. C