Appeal Details
Counselvise Citation
[2014] 120 COUNSELVISE.COM (IT) 5818 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-03-2014
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
25-03-2014
Assessment Year
2009-2010
Appeal Filed On
28-08-2012
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL B B ENCH, MUMBAI , , ! '# $ $ $ $ , % && '# ' BEFORE SHRI N.K. BILLAIYA, AM AND SHRI SANJAY G ARG,JM ./ I.T.A. NO. 5409/M/2012 ( ( ( ( ( / ASSESSMENT YEAR :2009-10 M/S. MINEX METALLURGICAL CO. LTD., 3 RD FLOOR, RAJGURU APTS, 3, NEW NAGARDAS ROAD, ANDHERI (E), MUMBAI-400 069 / VS. THE DCIT 8(2), 707A,C-10 7 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400 051 #) ! ./ %* ./ PAN/GIR NO. : AAACM 7315B ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI PARESH SHAPARIA ,-)+ / . / RESPONDENT BY: SHRI MALLIKARJUN UTTURE / 01! / DATE OF HEARING :25.03.2014 23( / 01! / DATE OF PRONOUNCEMENT :28.03.2014 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-17, MUMBAI DT.19.6.2012 PERTAINING TO A.Y. 2009-10. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN UPHOLDING THE DENIAL OF THE DEDUCTION U/S. 80IA(5) OF THE ACT AMOUNTING TO RS. 84,89,864/- CONSIDERING THE INITIAL ASSESSM ENT YEAR AS REFERRED IN ITA NO. 5409/M/2012 2 SEC. 80IA(5) AS A.Y. 2006-07 INSTEAD OF A.Y. 2009- 10 AS CLAIMED BY THE ASSESSEE. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF GENERATION OF POWER THROUGH ITS WINDMILL PLANT. TH E AO FURTHER OBSERVED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IA FOR THE FIRST TIME DURING FINANCIAL YEAR 2008-09. THE AO FURTHER OBSERVED TH AT THE ASSESSEE HAD INSTALLED ITS WIND MILL IN THE PREVIOUS YEAR RELAT ING TO A.Y. 2006-07. THE AO WAS OF THE FIRM BELIEF THAT FOR QUANTIFYING THE AMOUNT OF DEDUCTION U/S. 80IA, LOSSES INCURRED IN EARLIER YEA R HAS TO BE FIRST SET OFF AND BALANCE PROFIT, IF ANY IS ONLY ELIGIBLE FOR DE DUCTION U/S. 80IA. DRAWING SUPPORT FROM THE DECISION OF THE ITAT SPECI AL BENCH, AHMEDABAD IN THE CASE OF ACIT VS GOLDMINE SHARES & FINANCE (P) LTD 113 ITD 209, THE AO DISALLOWED THE DEDUCTION U/S. 8 0IA AMOUNTING TO RS. 84,89,864/-, 4. WHEN THE MATTER WAS CARRIED BEFORE THE LD. CIT(A ), THE CIT(A) ALSO RELIED UPON THE DECISION OF THE TRIBUNAL SPECI AL BENCH (SUPRA) AND HELD THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE SPECIAL BENCH AND CONFIRMED THE ACTION OF THE AO. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. T HE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE DECISION OF THE SPECIA L BENCH (SUPRA) IS NO MORE A GOOD LAW IN THE LIGHT OF THE SUBSEQUENT DECI SIONS OF THE HONBLE HIGH COURT WHICH HAS BEEN FOLLOWED BY VARIOUS BENCH ES OF THE TRIBUNAL. IN SUPPORT, THE LD. COUNSEL DREW OUR ATTENTION TO T HE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF VELAYUDHA SWAMY SPINNING ITA NO. 5409/M/2012 3 MILLS (P) LTD. VS ACIT 340 ITR 477 WHEREIN THE HON BLE MADRAS HIGH COURT HAD THE OCCASION TO CONSIDER FOLLOWING SUBSTA NTIAL QUESTIONS OF LAW: A) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL IS RIGHT IN LAW IN HOLDING THAT INITIAL AS SESSMENT YEAR IN SECTION 80-IA(5) WOULD ONLY MEAN THE YEAR OF COMMEN CEMENT AND NOT THE YEAR OF CLAIM? B) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL IS RIGHT IN LAW IN SAYING THAT UNABSORBED DEPRECIATION OF EARLIER YEARS BEFORE THE FIRST YEAR OF CLAIM, WH ICH HAS ALREADY BEEN ABSORBED, COULD BED NOTIONALLY CARRIED FORWARD AND TAKEN INTO CONSIDERATION FOR COMPUTATION OF DEDUCTION U/S . 80-IA? C) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL IS RIGHT IN LAW IN FOLLOWING THE DECISION OF THE SPECIAL BENCH IN THE CASE OF GOLDMINE SHARES AND FINANCE (P) LTD (2008) 302 ITR (AT) 208 (AHD) WHEN ADMITTEDLY THE S AID DECISION WAS RENDERED PRIOR TO THE AMENDMENT TO SEC . 80-IA BY THE FINANCE ACT, 1999? 6. THE LD. COUNSEL POINTED OUT THAT THE HONBLE MA DRAS HIGH COURT HAD CONSIDERED THE DECISION OF THE TRIBUNAL SPECIAL BENCH WHICH HAS BEEN RELIED UPON BY THE REVENUE AUTHORITIES. IT IS THE SAY OF THE LD. COUNSEL THAT THIS DECISION OF THE HONBLE MADRAS HI GH COURT SUPPORTS THE CLAIM OF THE ASSESSEE. THE LD. COUNSEL FURTHER REL IED UPON THE DECISION OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS EMRA LD JEWEL INDUSTRY (P) LTD 53 DTR 262 (MAD) & CIT VS MEWAR OIL AND GEN ERAL MILLS LTD. 271 ITR 311 (RAJ). IT IS THE SAY OF THE LD. COUNSE L THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF THE HONBLE MADRAS HIGH COURT. 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING FACTS/DECISIONS IN FAVOUR OF THE REVENUE. ITA NO. 5409/M/2012 4 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL THAT THE REVENUE AUTHORITIES HAVE REJEC TED THE CLAIM OF THE ASSESSEE U/S. 80IA FOLLOWING THE DECISION OF THE TR IBUNAL SPECIAL BENCH IN THE CASE OF GOLDMINE SHARES & FINANCE (P) LTD ( SUPRA). WE HAVE CAREFULLY PERUSED THE DECISIONS BROUGHT TO OUR NOTI CE BY THE LD. COUNSEL. WE FIND THAT THE HONBLE MADRAS HIGH COURT AS WELL AS HONBLE RAJASTHAN HIGH COURT WHILE DECIDING THE ISSUE IN FA VOUR OF THE ASSESSEE HAS CONSIDERED THE DECISION OF THE SPECIAL BENCH (S UPRA). RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT (SUPRA), WE DIRECT THE AO TO ALLOW THE CLAIM OF DEDUCTION U/S. 80IA AS CLAIMED BY THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2014 . '4 / 3( ! 5 6'7 28.3.2014 3 / & SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) '# /JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 6' DATED 28.3.2014 . . ./ RJ , SR. PS ITA NO. 5409/M/2012 5 '4 '4 '4 '4 / // / ,0 ,0 ,0 ,0 8(0 8(0 8(0 8(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- 4. 9 / CIT 5. :& ,0 , , / DR, ITAT, MUMBAI 6. &; < / GUARD FILE. '4 '4 '4 '4 / BY ORDER, -0 ,0 //TRUE COPY// = == = / > > > > % % % % (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
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