M/s Yamuna Power & Infrastructure Limited, Jagadhari V. CIT, Panchkula

ITA 595/CHANDI/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8964 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSHIL KUMAR CIT DR AND
• Keywords: Depreciation; Question of law; Unabsorbed depreciation
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.595/CHD/2013 (ASSESSMENT YEAR : 2008-09) M/S YAMUNA POWER & VS. THE C.I.T., INFRASTRUCTURE LIMITED, PANCHKULA. SARDANA NAGAR, AMBALA ROAD, JAGADHRI. PAN: AAACY0554A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI SUSHIL KUMAR, CIT DR AND ITA NO.561/CHD/2016 (ASSESSMENT YEAR : 2008-09) THE D.C.I.T., VS. M/S YAMUNA POWER & PANCHKULA. INFRASTRUCTURE LIMITED, SARDANA NAGAR, AMBALA ROAD, JAGADHRI. PAN: AAACY0554A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUSHIL KUMAR, CIT DR RESPONDENT BY : SHRI SUDHIR SEHGAL DATE OF HEARING : 16.11.2016 DATE OF PRONOUNCEMENT : 28.11.2016 O R D E R PER ANNAPURNA GUPTA, A.M . : BOTH THE APPEALS FILED RELATE TO THE SAME ASSESSEE AGAINST SEPARATE ORDERS PASSED FOR ASSESSMENT YEAR 2 2008-2009. THE ASSESSEES APPEAL IN ITA NO. 595/CHD/2013 HAS BEEN FILED AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX, PANCHKULA DATED 25.03.2013, PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), WHILE THE REVEN UES APPEAL IN ITA NO. 561/CHD/2016 IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), PANCHKULA, DATED 28.03.2016, PASSED AGAINST THE ASSESSMENT ORDER PASSED IN CONSEQUENCE TO THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE ACT. 2. AT THE OUTSET IT MAY BE STATED THAT THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT T HE APPEAL FILED BY THE ASSESSEE IN ITA NO. 595/CHD/201 3 AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX , PASSED UNDER SECTION 263 OF THE ACT IS BEING WITHDRAWN. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS DISMISSED. 3. WE SHALL NOW DEAL WITH THE APPEAL FILED BY THE REVENUE IN ITA NO. 561/CHD/2016. 4. BRIEF FACTS RELATING TO THE CASE ARE THAT THE ASSESSEE COMPANY ESTABLISHED TWO WINDMILLS IN DISTRICT JAISALMER, RAJASTHAN - A 20 MW WIND FARM A T VILLAGE GORERA AND 25 MW WIND FARM AT VILLAGE SODA MADA ON 30.03.2004 AND 24.01.2004 RESPECTIVELY. DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE 3 CLAIMED DEDUCTION UNDER SECTION 80IA OF RS.96,22,131/-AT THE RATE OF HUNDRED PERCENT ON THE INCOME EARNED FROM THE BUSINESS OF WIND POWER GENERATION PROJECTS. THE INCOME WAS ASSESSED UNDER SECTION 143 (3) ON 24. 12. 2010 AT RS.2,86,19,761/- AFTER ALLOWING THE ASSESSEES CLAIM U/S 80IA OF THE ACT. THEREAFTER, THE COMMISSIONER OF INCOME TAX, PANCHKULA PASSED AN ORDER UNDER SECTION 263, DATED 25.03.2013, HOLDING THE ORDER PASSED BY THE ASSESSI NG OFFICER AS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE IN AS MUCH AS DEDUCTION UNDER SECTION 8 0 IA (5) AMOUNTING TO RS.96,22,131/-WAS GIVEN IN EXCE SS TO THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION . LD. COMMISSIONER OF INCOME TAX HELD THAT THE ELIGI BLE BUSINESS OF THE ASSESSEE HAD DECLARED LOSSES AMOUNTING IN ALL TO RS.954.18 LAKHS IN THE 3 YEARS FROM ASSESSMENT YEAR 2004-2005 TO ASSESSMENT YEAR 2006-2007, WHICH NEEDED TO BE SET OFF AGAINST THE INCOME FROM THE ELIGIBLE BUSINESS FOR THE IMPUGNED ASSESSMENT YEAR FOR THE PURPOSE OF COMPUTING DEDUCTION UNDER SECTION 80IA OF THE ACT, SINCE AS PER THE PROVISIONS OF SECTION 80IA (5), THE ELIGIBLE BU SINESS OF THE ASSESSEE IS PRESUMED TO BE THE ONLY SOURCE O F INCOME. LD. COMMISSIONER OF INCOME TAX HELD THAT AFTER SETTING OFF LOSSES OF THE ELIGIBLE BUSINESS PERTAINING TO ASSESSMENT YEARS 2004-2005 TO 2006- 2007 AGAINST THE INCOME OF THE ELIGIBLE BUSINESS F OR THE ASSESSMENT YEAR 2007-2008 AND 2008-2009, THERE 4 WERE STILL BROUGHT FORWARD LOSSES OF RS.746.38 LAKH S AND AFTER SETTING OFF THE SAME AGAINST THE INCOME O F THE ASSESSEE FROM THE ELIGIBLE BUSINESS OF THE ASSE SSEE FOR THE IMPUGNED ASSESSMENT YEAR I.E. RS.96.22 LACS , THE DEDUCTION FOR THE IMPUGNED YEAR WORKED OUT AT R S. NIL, AS AGAINST THE AMOUNT CLAIMED & ALLOWED OF RS.96.22 LAKHS. LD. COMMISSIONER OF INCOME TAX THEREFORE HELD THE ASSESSMENT ORDER PASSED BY THE A O AS ERRONEOUS AND PRE-JUDICIAL TO THE INTEREST OF TH E REVENUE IN AS MUCH AS DEDUCTION UNDER SECTION 80IA (5) AMOUNTING TO RS.96.22 LAKHS HAD BEEN GIVEN IN EXCESS. ACCORDINGLY THE ASSESSMENT ORDER DATED 24. 12. 2010 WAS CANCELLED AND THE AO WAS DIRECTED TO RECOMPUTE THE DEDUCTION UNDER SECTION 80 IA (5). TH E AO, THEREAFTER, ISSUED A QUESTIONNAIRE ALONGWITH NOTICE UNDER SECTION 143 (2) AND 142 (1) TO SHOW CA USE WHY THE EXCESS DEDUCTION OF RS.96,22,131/-CLAIMED UNDER SECTION 80 IA (5) MAY NOT BE WITHDRAWN. THE ASSESSEE FILED ITS REPLY. THE AO REJECTED THE SUBMISSIONS OF THE ASSESSEE SINCE THE SAME HAD BEEN DEALT WITH BY THE COMMISSIONER OF INCOME TAX IN THE ORDER PASSED UNDER SECTION 263. THE AO CONCLUDED THAT AS PER THE DETAILS TABULATED AT PARA 2 (I) AND 2 (II) OF THE COMMISSIONER OF INCOME TAXS ORDER THERE WER E BROUGHT FORWARD LOSSES OF PERTAINING TO THE ELIGIBL E BUSINESS OF THE ASSESSEE OF RS.746.38 LAKHS, WHICH WERE TO BE SET OFF AGAINST THE INCOME FROM THE WIND MILL BUSINESS AS REFLECTED IN THE IMPUGNED ASSESSMENT YE AR 5 OF RS.96,22,131/-. THE AO HELD THAT THIS EXERCISE RENDERED THE INCOME FROM ELIGIBLE BUSINESS AT NIL A ND THEREFORE DENIED THE CLAIM MADE BY THE ASSESSEE OF DEDUCTION UNDER SECTION 80 IA AMOUNTING TO RS.96,22,131/-. 5. AGGRIEVED BY THE SAME THE ASSESSEE CAME UP IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS), WHEREIN THE ASSESSEE SUBMITTED THAT IT HAD STARTED PRODUCTION IN ASSESSMENT YEAR 2004-05 BUT HAD CHOSEN TO CLAIM DEDUCTION U/S 80IA W.E.F. ASSESSMENT YEAR 2008-09, AS PER THE PROVISIONS OF SECTION 80 IA (2), WHICH GAVE THE ASSESSEE THE OPTI ON TO CLAIM DEDUCTION FOR ANY 10 CONSECUTIVE ASSESSMEN T YEARS OUT OF 15 YEARS BEGINNING FROM THE YEAR IN WH ICH THE UNDERTAKING OR ENTERPRISE DEVELOPED AND BEGAN T O OPERATE ANY INFRASTRUCTURE FACILITY. THUS THE ASSES SEE SUBMITTED THAT ITS INITIAL ASSESSMENT YEAR WAS 2008 -09 AND NOT 2004-05 AND THEREFORE THERE WAS NO OCCASIO N TO MAKE ADJUSTMENT OF LOSSES OF ELIGIBLE BUSINESS PERTAINING TO THE EARLIER YEARS. THE ASSESSEE PLEAD ED THAT IT HAD BEEN ALLOWED THIS CLAIM IN ASSESSMENT YEARS 2010-11 TO 2012-2013 BY THE COMMISSIONER OF INCOME TAX (APPEALS), WHICH WAS UPHELD BY THE ITA T. THE ASSESSEE ALSO RELIED ON THE CBDT CIRCULAR NO. 1/2016 DATED 15. 02. 2016 AND STATED THAT THE CBDT HAD CLARIFIED THE ISSUE AND ADOPTED THE ASSESSEES VIEWPOINT AS THE CORRECT VIEWPOINT. LD. COMMISSIONE R 6 OF INCOME TAX( APPEAL), AFTER GOING THROUGH THE ASSESSEES SUBMISSION HELD THAT IDENTICAL ISSUE HAD BEEN DECIDED IN ASSESSEES FAVOUR IN ASSESSMENT YEA R 2010-2011 BY THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS UPHELD BY THE ITAT, CHANDIGARH BENCH, IN ITA NO. 1062 AND 1063/CHD/2014 VIDE ORDER DATED 10. 02. 2016. FURTHER LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO HELD THAT THE CBDT, VIDE CIRCULAR NO. 1/2016 DATED 15. 02. 2016 HAD CLARIFIE D THAT THE TERM INITIAL ASSESSMENT YEAR WOULD MEAN THE FIRST-YEAR OPTED BY THE ASSESSEE FOR CLAIMING DEDUC TION UNDER SECTION 80 IA. THE COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE ALLOWED THE ASSESSEES APPEAL. 6. AGGRIEVED BY THE SAME THE REVENUE HAS COME UP IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS: 1. WHETHER THE CIT(A), PANCHKULA WAS RIGHT IN ACCEP TING THE CLAIM OF THE ASSESSEE THAT THE INITIAL ASSESSMENT YEA R A.Y. 2004-05 WAS INADVERTENTLY MENTIONED IN FORM 10CCB, SINCE IN ALL THE AUDIT REPORTS FOR A.Y. 2004-05, 2008-09, 2010-11 AND A.Y. 2011-12, THE INITIAL YEAR HAS BEEN MENTIONED A.Y. 2004-05 ONLY. 2. WHETHER THE ASSESSEE HAS THE LIBERTY TO ALTER THE OPTION OF CHOOSING INITIAL A.Y. WHICH HAS ALREADY BEEN EXERCISED THROUGH AUDIT REPORT IN FORM NO. 10CCB. 3. IT IS PRAYED THAT THE ORDER OF THE LD. CIT (APPEAL ) BE SET- ASIDE AND THAT OF THE A.O. BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROU NDS 7 OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 7. DURING THE COURSE OF HEARING BEFORE US, LD.DR RELIED UPON THE ORDER OF THE AO WHILE THE LD. COUNS EL FOR THE ASSESSEE STATED THAT THE ISSUE HAD ALREADY BEEN SETTLED IN FAVOUR OF THE ASSESSEE IN ASSESSMENT YEA R 2010- 2011 AND 2011-2012 AS POINTED OUT BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO AND THERE FORE THERE WAS NO REASON TO TAKE ANY OTHER VIEW IN THE M ATTER. 8. WE HAVE HEARD THE CONTENTIONS OF BOTH THE PARTIES PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS ALSO THE DOCUMENTS PLACED BEFORE US. WE FIND NO INFIRMIT Y IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APP EALS) ALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER S ECTION 80 IA, TO THE EXTENT OF PROFITS EARNED DURING THE Y EAR FROM ITS ELIGIBLE BUSINESS AMOUNTING TO RS.96,22,131/-WI THOUT SETTING OFF THE BROUGHT FORWARD LOSSES OF THE ITS E LIGIBLE BUSINESS OF THE PRECEDING YEARS. THE ISSUE REGARDI NG ASSESSEES CLAIM OF THE IMPUGNED ASSESSMENT YEAR I.E . AY 2008-09 AS THE INITIAL ASSESSMENT YEAR FOR THE PU RPOSE OF CLAIMING DEDUCTION U/S 80IA DESPITE COMMENCING PRODUCTION IN AY 2004-05, BY CLAIMING RECOURSE TO T HE OPTION PROVIDED U/S 80IA(2) FOR CHOOSING ANY TEN CONSECUTIVE YEARS OUT OF A BLOCK OF FIFTEEN YEARS F OR THE PURPOSE OF CLAIMING DEDUCTION U/S 80IA , WE FIND HA S BEEN ADJUDICATED UPON IN FAVOUR OF THE ASSESSEE BY THE ITAT IN ASSESSMENT YEAR 2010-2011 AND 2011-2012 IN ITA NO. 1062 AND 1063/CHD/2014 DATED 10.02.2016. THE ITAT IN 8 THE SAID ORDER HAS ALSO HELD THAT THERE WAS NO NEED TO NOTIONALLY CARRY FORWARD LOSSES OF ELIGIBLE BUSINES S PERTAINING TO THE PERIOD EARLIER TO THE INITIAL ASS ESSMENT YEAR, RELYING UPON THE JUDGEMENT OF THE KARNATAKA H IGH COURT IN THE CASE OF CIT VS. ANIL H. LAD 102 DTR 2 41 (KAR), THE JUDGEMENT OF THE MADRAS HIGH COURT IN T HE CASE OF VELAYUDHASWAMY SPINNING MILLS PRIVATE LIMIT ED VS CIT (2010) 231 CTR 368(MAD) AND THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SHEVIE EXPORTS (2013) 156 TTJ 525(MUM). THE RELEVANT FINDI NGS OF THE ITAT AT PARA 9-11 OF ITS ORDER ARE AS FOLLOW S: 9. ON PERUSAL OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPEALS) AS THE ONLY CONTROVERSY TO BE DECIDED IS WHETHER FOR CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT, THE LOSSES WHICH WERE INCURRED BY THE ELIGIBLE BUSINESS IN THE PERIOD EARLIER TO THE INITIAL YEAR ARE TO BE NOTIONALLY CARRIED FORWARD TO THE INITIAL ASSESSMENT YEAR AND BE ADJUSTED BEFORE CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT. WE HAVE ALSO PERUSED THE JUDGMENT OF THE KARNATAKA HIGH COURT IN THE CASE OF ANIL H. LAD. (SUPRA), WHEREBY ADJUDICATING THE SAME ISSUE, THE HON'BLE COURT HAS ANALYZED THE JUDGMENT OF THE MADRAS HIGH COURT IN CASE OF SRI VELAYUDHASWAMY SPINNING MILLS (P) LTD. (SUPRA), WHICH HAS BEEN RELIED VERY HEAVILY BY THE ASSESSEE. THE FINDINGS OF THE HON'BLE COURT ARE AT PARAS 9 AND 10 OF THE JUDGMENT, WHICH READS AS UNDER : 9. THE MADRAS HIGH COURT IN THE AFORESAID VELAYUDHASWAMY'S CASE INTERPRETING THE VERY PROVISI ON HELD, 9 FROM A READING OF SUB-SECTION (1) SECTION 80-IA , IT IS CLEAR THAT IT PROVIDES THAT WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERTA KING OR AN ENTERPRISE FROM ANY BUSINESS REFERRED TO IN SUB-S ECTION (4) I.E. REFERRED TO AS THE ELIGIBLE BUSINESS, THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THE SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESS EE, A DEDUCTION OF AN AMOUNT EQUAL TO 100 PER CENT OF THE PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR TEN CONSEC UTIVE ASSESSMENT YEARS. DEDUCTION IS GIVEN TO ELIGIBLE BUS INESS AND THE SAME IS DEFINED IN SUB-SECTION (4). SUB-SECTION (2) P ROVIDES OPTION TO THE ASSESSEE TO CHOOSE 10 CONSECUTIVE ASS ESSMENT YEARS OUT OF 15 YEARS. OPTION HAS TO BE EXERCISED. IF IT IS NOT EXERCISED, THE ASSESSEE WILL NOT BE GETTING THE BENE FIT. FIFTEEN YEARS IS OUTER LIMIT AND THE SAME IS BEGINNING FROM T HE YEAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AND BEGINS TO OPERATE ANY INFRASTRUCTURE ACTIVITY ETC. SUB- SECTION (5 ) DEALS WITH QUANTUM OF DEDUCTION FOR AN ELIGIBLE BUSINESS. T HE WORDS 'INITIAL ASSESSMENT YEAR' ARE USED IN SUB-SECTION (5) AN D THE SAME IS NOT DEFINED UNDER THE PROVISIONS. IT IS TO BE NOTED THAT 'INITIAL ASSESSMENT YEAR' EMPLOYED IN SUB-SECTION (5) IS DIFFERENT FROM THE WORDS 'BEGINNING FROM THE YEAR' REFERRED TO IN SUB-SECTION (2). SUB-SECTION (5) STARTS WITH NON OBSTA NTE CLAUSE WHICH MEANS IT OVERRIDES ALL THE PROVISIONS O F THE ACT AND OTHER PROVISIONS ARE TO BE IGNORED; FOR THE PURP OSE OF DETERMINING THE QUANTUM OF DEDUCTION; FOR THE ASSESS MENT YEAR IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR, THEREBY A FICTION IS CREATED BY INTRODUCING A DEEMI NG PROVISION AND THEREFORE, IT IS CLEAR THAT THE ELIGIBLE BUSINESS WERE THE ONLY SOURCE OF INCOME, DURING THE PREVIOUS YEAR RELEVA NT TO INITIAL ASSESSMENT YEAR AND EVERY SUBSEQUENT ASSESSMEN T YEARS. WHEN THE ASSESSEE EXERCISES THE OPTION, THE ONLY LOS SES OF THE YEARS BEGINNING FROM INITIAL ASSESSMENT YEAR ALON E ARE TO BE BROUGHT FORWARD AND NO LOSSES OF EARLIER YEARS WHICH WERE ALREADY SET OFF AGAINST THE INCOME OF THE ASSES SEE. LOOKING FORWARD TO A PERIOD OF TEN YEARS FROM THE I NITIAL ASSESSMENT IS CONTEMPLATED. IT DOES NOT ALLOW THE REVEN UE TO 10 LOOK BACKWARD AND FIND OUT IF THERE IS ANY LOSS OF EA RLIER YEARS AND BRING FORWARD NOTIONALLY EVEN THOUGH THE SAME WE RE SET OFF AGAINST OTHER INCOME OF THE ASSESSEE AND THE SE T OFF AGAINST THE CURRENT INCOME OF THE ELIGIBLE BUSINESS. O NCE THE SET OFF IS TAKEN PLACE IN EARLIER YEAR AGAINST THE OTHER INCOME OF THE ASSESSEE, THE REVENUE CANNOT REWORK THE SET O FF AMOUNT AND BRING IT NOTIONALLY. FICTION CREATED IN SUB - SECTION DOES NOT CONTEMPLATES TO BRING SET OFF AMOUNT NOTIO NALLY. FICTION IS CREATED ONLY FOR THE LIMITED PURPOSE AND TH E SAME CANNOT BE EXTENDED BEYOND THE PURPOSE FOR WHICH IT I S CREATED. 10. THEREFORE, KEEPING IN MIND THE OBJECT WITH WHICH T HESE PROVISIONS ARE INTRODUCED, IT IS CLEAR THAT AN ASSESS EE IS GIVEN THE BENEFIT OF 100% DEDUCTION OF THE PROFITS AND GA INS FROM THE ELIGIBLE BUSINESS. THE QUANTUM OF DEDUCTION IS TO BE CALCULA TED WHEN THE CLAIM FOR DEDUCTION IS MADE. IF BEFORE CLAIMIN G DEDUCTION, THE LOSS AND DEPRECIATION CLAIMED BY THE AS SESSEE EVEN IN RESPECT OF ELIGIBLE BUSINESS IS SETOFF AGAIN ST INCOME OF THE ASSESSEE OR OTHER SOURCE, THE SAID LOSS OR DEPREC IATION IS ALREADY ABSOLVED, IT DOES NOT EXIST. FOR THE PURPOSE OF DETERMINING THE QUANTUM OF DEDUCTION UNDER SUB-SECTI ON (5) OF SECTION 80IA , THE REVENUE CANNOT TAKE INTO CONSIDERATION THE LOSS AND DEPRECIATION WHICH IS ALREADY SETOFF AGAINST T HE INCOME OF THE ASSESSEE FROM OTHER SOURCE AND COMPUT E THE PROFIT UNDER SECTION 80IA . THEREFORE, THE APPROACH OF THE TRIBUNAL IS IN ACCORDANCE WITH LAW. THE ASSESSING AUTH ORITY AND THE COMMISSIONER COMMITTED A SERIOUS ERROR IN SE TTING OFF THE PROFIT EARNED BY THE ASSESSEE UNDER SECTION 80IA AGAINST THE LOSSES AND DEPRECIATION OF THE ELIGIBLE BUSINESS WHICH IS ALREADY SETOFF FROM OTHER SOURCE BEFORE SUCH A CLAIM IS PUTFORTH. THUS, THERE IS NO ERROR COMMITTED BY THE TRI BUNAL IN SETTING ASIDE THE ORDER PASSED BY THE ASSESSING AUT HORITY AS WELL AS THE LOWER APPELLATE AUTHORITY. THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESSE E AND AGAINST THE REVENUE. 11 10. THIS VIEW HAS ALSO BEEN UPHELD BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SHEVIE EXPORTS (SUPRA), WHEREBY ALL THE JUDGMENTS RELIED ON BY THE ASSESSEE AS WELL AS THE REVENUE HAVE BEEN CONSIDERED AND THE BENCH HAS GIVEN FINDINGS AT PARAS 9 TO 12, WHICH READS AS UNDER : 9. SECTION 80IA, WHICH HAS BEEN SUBSTITUTED W.E.F. 1 ST APRIL 2000, PROVIDES THAT WHERE THE GROSS TOTAL INCOME OF A N ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY A N UNDERTAKING FROM ANY ELIGIBLE BUSINESS REFERRED TO I N SUB SECTION 4, THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED IN COMPUTING TH E TOTAL INCOME, THE DEDUCTION OF AN AMOUNT EQUAL TO 100% OF TH E PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR 10 CONSECUTIVE YEARS. SUBSTITUTED SUBSECTION (2) OF SECT ION 80IA, PROVIDES THAT AN OPTION IS GIVEN TO THE ASSESSEE FO R CLAIMING ANY 10 CONSECUTIVE ASSESSMENT YEAR OUT OF 15 YEARS BEGINNING FROM THE YEAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AND BEGIN TO OPERATE. THE 15 YEAR S IS THE OUTER LIMIT WITHIN WHICH THE ASSESSEE CAN CHOOSE THE P ERIOD OF CLAIMING THE DEDUCTION. SUBSECTION (5) IS A NONOBSTA NTE CLAUSE WHICH DEALS WITH THE QUANTUM OF DEDUCTION FOR AN ELIGIBLE BUSINESS. THE RELEVANT PROVISIONS OF SUBSECT ION (5) OF SECTION 80IA, READS AS UNDER: (5) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, THE PROFITS AND GAINS OF AN E LIGIBLE BUSINESS TO WHICH THE PROVISIONS OF SUB-SECTION (1) A PPLY 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 AN Y SUBSEQUENT ASSESSMENT YEAR, BE COMPUTED AS IF SUCH ELIGIBLE BUSINESS WERE THE ONLY SOURCE OF INCOME OF T HE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE IN ITIAL ASSESSMENT YEAR AND TO EVERY SUBSEQUENT ASSESSMENT YEAR 12 UP TO AND INCLUDING THE ASSESSMENT YEAR FOR WHICH TH E DETERMINATION IS TO BE MADE. 10. FROM A PLAIN READING OF THE ABOVE, IT CAN BE GATH ERED THAT IT IS A NONOBSTANTE CLAUSE WHICH OVERRIDES THE OTHER PROVISIONS OF THE ACT AND IT IS FOR THE PURPOSE OF DETERMINING THE QUANTUM OF DEDUCTION UNDER SECTION 80IA, FOR THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR T O BE COMPUTED AS IF THE ELIGIBLE BUSINESS IS THE ONLY SOU RCE OF INCOME. THUS, THE FICTION CREATED IS THAT THE ELIGIBLE BUS INESS IS THE ONLY SOURCE OF INCOME AND THE DEDUCTION WOULD BE ALLOWED FROM THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR. IT NOWHERE DEFINES AS TO WHAT IS T HE INITIAL ASSESSMENT YEAR. PRIOR TO 1 ST APRIL 2000, THE INITIAL ASSESSMENT YEAR WAS DEFINED FOR VARIOUS TYPES OF ELI GIBLE ASSESSEES UNDER SECTION 80IA(12). HOWEVER, AFTER THE AMENDMENT BROUGHT IN STATUTE BY THE FINANCE ACT, 19 99, THE DEFINITION OF INITIAL ASSESSMENT YEAR HAS BEEN SPECI FICALLY TAKEN AWAY. NOW, WHEN THE ASSESSEE EXERCISES THE OPT ION OF CHOOSING THE INITIAL ASSESSMENT YEAR AS CULLED OUT IN SU B SECTION (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 ASSESSMENT YEAR ALONE ARE TO BE BROUGHT FORWARD AS STIPULATED IN SECTION 80IA(5). THE LOSS PRIOR TO THE INITIAL ASSESSMENT YEAR WHICH HAS ALREADY BEEN SETOFF CANNOT BE BROUGHT FORWARD AND ADJUSTED INTO THE PERIOD OF TEN YEARS FROM THE INITIAL ASSESSMENT YEAR A S CONTEMPLATED OR CHOSEN BY THE ASSESSEE. IT IS ONLY W HEN THE LOSS HAVE BEEN INCURRED FROM THE INITIAL ASSESSMENT YEA R, THEN THE ASSESSEE HAS TO ADJUST LOSS IN THE SUBSEQUENT AS SESSMENT YEARS AND IT HAS TO BE COMPUTED AS IF ELIGIBLE BUSINE SS IS THE ONLY SOURCE OF INCOME AND THEN ONLY DEDUCTION UNDER SECTION 80IA CAN BE DETERMINED. THIS IS THE TRUE IMPORT OF SE CTION 80IA(5). 11. IN THE DECISION OF GOLDMINE SHARES AND FINANCE P VT. LTD. (SUPRA), DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL, T HE 13 CLAIM OF DEDUCTION BY THE ASSESSEE HAD STARTED FROM ASSESSMENT YEAR 199697 ONWARDS AND THE ASSESSEE HA D CLAIMED DEDUCTION UNDER SECTION 80IA STARTING FROM T HE FIRST YEAR ITSELF I.E., ASSESSMENT YEAR 199697. THUS, THE SPE CIAL BENCH WAS DEALING WITH THE OPERATION OF SECTION 80IA(5) WHERE THE ASSESSEE HAD FIRST CLAIMED THE DEDUCTION IN THE ASSESSMENT YEAR 199697 AND FOR SUBSEQUENT ASSESSME NT YEARS. THIS ASPECT OF THE MATTER HAS BEEN VERY WELL EL ABORATED BY THE MADRAS HIGH COURT IN VELAYUDHASWAMY SPINNING MILLS PVT. LTD. (SUPRA) AFTER CONSIDERING THE SPECIAL BENCH D ECISION OF THE TRIBUNAL IN GOLDMINE SHARES AND FINANCE PVT. L TD. (SUPRA) AND RELEVANT PROVISIONS OF THE ACT I.E., PRE AME NDMENT AND POST AMENDMENT HAVE COME TO THE SAME CONCLUSION: FROM READING OF THE ABOVE, IT IS CLEAR THAT THE ELIGI BLE BUSINESS WERE THE ONLY SOURCE OF INCOME, DURING THE PREVIOUS YEAR RELEVANT TO INITIAL ASSESSMENT YEAR AND E VERY SUBSEQUENT ASSESSMENT YEARS. WHEN THE ASSESSEE EXERCISES THE OPTION, THE ONLY LOSSES OF THE YEARS B EGINNING FROM INITIAL ASSESSMENT YEAR ALONE ARE TO BE BROUGHT FORWARD AND NO LOSSES OF EARLIER YEARS WHICH WERE ALR EADY SET OFF AGAINST THE INCOME OF THE ASSESSEE. LOOKING FORWARD TO A PERIOD OF TEN YEARS FROM THE INITIAL ASSESSMENT I S CONTEMPLATED. IT DOES NOT ALLOW THE REVENUE TO LOOK BACKWARD AND FIND OUT IF THERE IS ANY LOSS OF EARLIE R YEARS AND BRING FORWARD NOTIONALLY EVEN THOUGH THE SAME WE RE SET OFF AGAINST OTHER INCOME OF THE ASSESSEE AND TH E SET OFF AGAINST THE CURRENT INCOME OF THE ELIGIBLE BUSINESS. O NCE THE SET OFF IS TAKEN PLACE IN EARLIER YEAR AGAINST THE O THER INCOME OF THE ASSESSEE, THE REVENUE CANNOT REWORK TH E SET OFF AMOUNT AND BRING IT NOTIONALLY. FICTION CREATED I N SUB- SECTION DOES NOT CONTEMPLATES TO BRING SET OFF AMOU NT NOTIONALLY. FICTION IS CREATED ONLY FOR THE LIMITED PUR POSE AND THE SAME CANNOT BE EXTENDED BEYOND THE PURPOSE FOR WHICH IT IS CREATED. 14. IN THE PRESENT CASES, THERE IS NO DISPUTE THAT LOSS ES INCURRED BY THE ASSESSEE WERE ALREADY SET OFF AND AD JUSTED 14 AGAINST THE PROFITS OF THE EARLIER YEARS. DURING TH E RELEVANT ASSESSMENT YEAR, THE ASSESSEE EXERCISED THE OPTION U NDER S. 80-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 PERIOD, THERE WERE NO UNABSORBED DEPRECIATION OR LOSS OF THE ELIGIBLE UNDERTAKINGS AND THE SAME WERE ALREADY ABSORBED IN THE EARLIER YEARS. THER E IS A POSITIVE PROFIT DURING THE YEAR. THE UNREPORTED JUDG MENT OF THIS COURT CITED SUPRA CONSIDERED THE SCOPE OF SUB-S. (6) OF S.80-I, WHICH IS THE CORRESPONDING PROVISION OF SUB-S. (5) OF S. 80-IA. BOTH ARE SIMILARLY WORDED AND THEREFORE WE AGREE ENTIRELY WITH THE DIVISION BENCH JUDGMENT OF THIS COURT C ITED SUPRA. IN THE CASE OF CIT VS. MEWAR OIL & GENERAL MILLS LTD. (2004) 186 CTR (RAJ) 141 : (2004) 271 ITR 311 (RAJ), THE RAJASTHAN HIGH COURT ALSO CONSIDERED THE SCOPE OF S. 80-I AND HELD AS FOLLOWS: 'HAVING CONSIDERED THE RIVAL CONTENTIONS WHICH FOLLOW ON THE LINE NOTICED ABOVE, WE ARE OF THE OPINION THAT O N FINDING THE FACT THAT THERE WAS NO CARRY FORWARD LOS SES OF 1983-84, WHICH COULD BE SET OFF AGAINST THE INCOME OF THE CURRENT ASST. YR. 1984-85, THE RECOMPUTATION OF INCOME FROM THE NEW INDUSTRIAL UNDERTAKING BY SETTING OFF TH E CARRY FORWARD OF UNABSORBED DEPRECIATION OR DEPRECI ATION ALLOWANCE FROM PREVIOUS YEAR DID NOT SIMPLY ARISE AND ON THE FINDING OF FACT NOTICED BY THE CIT(A), WHICH HAS NOT BEEN DISTURBED BY THE TRIBUNAL AND CHALLENGED BEFORE U S, THERE WAS NO ERROR MUCH LESS ANY ERROR APPARENT ON T HE FACE OF THE RECORD WHICH COULD BE RECTIFIED. THAT QUE STION WOULD HAVE BEEN GERMANE ONLY IF THERE WOULD HAVE BEEN CARRY FORWARD OF UNABSORBED DEPRECIATION AND UNABSORBED DEVELOPMENT REBATE OR ANY OTHER UNABSORBE D LOSSES OF THE PREVIOUS YEAR ARISING OUT OF THE PRIOR ITY INDUSTRY AND WHETHER IT WAS REQUIRED TO BE SET OFF AGAINST THE INCOME OF THE CURRENT YEAR. IT IS NOT A T ALL REQUIRED THAT LOSSES OR OTHER DEDUCTIONS WHICH HAVE ALREADY BEEN SET OFF AGAINST THE INCOME OF THE PREVI OUS 15 YEAR SHOULD BE REOPENED AGAIN FOR COMPUTATION OF CUR RENT INCOME UNDER S. 80-I FOR THE PURPOSE OF COMPUTING ADMISSIBLE DEDUCTIONS THEREUNDER. IN VIEW THEREOF, WE ARE OF THE OPINION THAT THE TRIB UNAL HAS NOT ERRED IN HOLDING THAT THERE WAS NO RECTIFIC ATION POSSIBLE UNDER S. 80-I IN THE PRESENT CASE, ALBEIT, FOR REASONS SOMEWHAT DIFFERENT FROM THOSE WHICH PREVAILE D WITH THE TRIBUNAL. THERE BEING NO CARRY FORWARD OF ALLOWABLE DEDUCTIONS UNDER THE HEAD DEPRECIATION OR DEVELOPMENT REBATE WHICH NEEDED TO BE ABSORBED AGAINST THE INCOME OF THE CURRENT YEAR AND, THEREFOR E, RECOMPUTATION OF INCOME FOR THE PURPOSE OF COMPUTIN G PERMISSIBLE DEDUCTION UNDER S. 80-I FOR THE NEW INDUST RIAL UNDERTAKING WAS NOT REQUIRED IN THE PRESENT CASE. ACCORDINGLY, THIS APPEAL FAILS AND IS HEREBY DISMISSED WITH NO ORDER AS TO COSTS.' FROM READING OF THE ABOVE, THE RAJASTHAN HIGH COURT HELD THAT IT IS NOT AT ALL REQUIRED THAT LOSSES OR OTHER DE DUCTIONS WHICH HAVE ALREADY BEEN SET OFF AGAINST THE INCOME O F THE PREVIOUS YEAR SHOULD BE REOPENED AGAIN FOR COMPUTATI ON OF CURRENT INCOME UNDER S. 80-I FOR THE PURPOSE OF COMPU TING ADMISSIBLE DEDUCTIONS THEREUNDER. WE ALSO AGREE WITH TH E SAME. WE SEE NO REASON TO TAKE A DIFFERENT VIEW. 12. THIS JUDGMENT HAS BEEN FURTHER FOLLOWED BY THE SAME HI GH COURT IN CIT V/S EMERALD JEWEL INDUSTRY (P) LTD. [2011] 53 DTR 262 (MAD.). FROM THE ABOVE, RATIO OF THE HIGH COUR T, IT IS AMPLY CLEAR THAT SUBSECTION (5) OF SECTION 80IA WIL L COME INTO OPERATION ONLY FROM THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR. THE OPTION OF CHOOSING T HE INITIAL ASSESSMENT YEAR IS WHOLLY UPON THE ASSESSEE IN THE POST AMENDMENT PERIOD I.E., AFTER 1 ST APRIL 2000 BY VIRTUE OF SECTION 80IA(2). 11. IN VIEW OF THE JUDGMENT OF THE KARNATAKA HIGH COURT, WHICH HAS ALSO BEEN RELIED ON BY THE MUMBAI BENCH OF THE TRIBUNAL 16 AND IN THE BACKGROUND THAT NO JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT HAS BEEN CITED BEFORE US, WE HOLD THAT CHOOSING OF INITIAL ASSESSMENT YEAR FOR CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT IN A BLOCK OF TEN YEARS OUT OF FIFTEEN YEARS IS WITH THE ASSESSEE I.E. IT IS TH E OPTION OF THE ASSESSEE TO CHOOSE THE INITIAL ASSESSMENT YEAR FOR CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT. FURTHER, THE LOSS CLAIMED BY THE ASSESSEE IN RESPECT OF ELIGIBLE BUSINESS IS TO BE SET OFF AGAINST THE INCOME OF THE ASSESSEE FROM OTHER INELIGIBLE BUSINESS AS IN RESPECT OF ASSESSMENT YEARS AND THERE IS NOT NEED TO NOTIONALLY CARRY FORWARD THESE LOSSES UP TO THE INITIAL ASSESSMENT YEAR AND WRITE OFF THE SAME OUT OF THE PROFITS OF ELIGIBLE BUSINESS. 9. FURTHER WE FIND THAT EVEN THE CBDT, VIDE ITS CIRCULAR NO. 1/2016 DATED 15. 02. 2016, HAS CLARIFI ED THIS ISSUE AND HELD THAT THE TERM INITIAL ASSESSMENT YEA R WOULD MEAN THE FIRST-YEAR OPTED FOR BY THE ASSESSEE FOR C LAIMING DEDUCTION UNDER SECTION 80IA. 10. IN VIEW OF THE ABOVE WE HOLD THAT THE IMPUGNED ASSESSMENT YEAR IS THE INITIAL ASSESSMENT YEAR AS OPTED BY THE ASSESSEE FOR THE PURPOSE OF CLAIMING DEDUCTI ON U/S 80IA OF THE ACT, AND FURTHER HOLD THAT THE LOSSES PERTAINING TO THE EARLIER YEARS ,OF THE ELIGIBLE BU SINESS, ARE NOT TO BE SET OFF FROM THE INCOME OF THE ELIGIB LE BUSINESS FOR THE YEAR. WE THEREFORE UPHOLD THE ORDE R OF THE LD. COMMISSIONER OF INCOME TAX( APPEAL) ALLOWIN G THE ASSESSEES CLAIM TO DEDUCTION UNDER SECTION 80IA T O THE 17 EXTENT OF PROFITS EARNED BY IT FROM ITS ELIGIBLE BU SINESS DURING THE YEAR AMOUNTING TO RS.96, 22, 131/-. 11. IN GROUND NOS. 1 AND 2 THE REVENUE HAS ALSO AGITATED THE ACCEPTANCE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OF ASSESSMENT YEAR 2004-05 AS THE INITIAL ASSESSMENT YEAR DESPITE THE FACT THAT IN AL L AUDIT REPORTS RELATING TO ASSESSMENT YEAR 2004-2005, 2008 - 2009, 2010-2011 AND ASSESSMENT YEAR 2011-2012, THE INITIAL YEARS HAD BEEN MENTIONED AS ASSESSMENT YEAR 2004-2005 ONLY. FURTHER THE REVENUE HAS CHALLENGED THE EXERCISE BY THE ASSESSEE TO ALTER THE INITIAL ASSES SMENT YEAR FROM 2004-2005 TO 2008 2009 BY FILING A FRESH AUDIT REPORT IN FORM NO. 10 CCB. 12. WE FIND NO MERIT IN THE ABOVE GROUNDS RAISED B Y THE ASSESSEE SINCE AS PER THE DIRECTIONS OF THE LD. COMMISSIONER OF INCOME TAX IN HIS ORDER PASSED UNDE R SECTION 263 OF THE ACT, THE CLAIM OF THE ASSESSEE O F DEDUCTION UNDER SECTION 80IA WAS HELD TO BE ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ONLY ON ACCOUNT OF THE FACT THAT THE ASSESSEE HAD NOT SET O FF BROUGHT FORWARD LOSSES OF THE ELIGIBLE BUSINESS FR OM ASSESSMENT YEAR 2004-2005 TO ASSESSMENT YEAR 2007- 2008, BEFORE CLAIMING DEDUCTION IN THE IMPUGNED YEA R. THE LD. COMMISSIONER OF INCOME TAX HAS NOWHERE HELD THE ORDER OF THE AO TO BE ERRONEOUS ON ACCOUNT OF THE F ACT THAT THE INITIAL ASSESSMENT YEAR OF THE ASSESSEE WA S ASSESSMENT YEAR 2004-05 AND NOT A.Y 2008-2009. THE AO, 18 WE FIND, ALSO HAS PASSED THE ORDER FOLLOWING THE SP ECIFIC DIRECTIONS OF THE LD. COMMISSIONER OF INCOME TAX IN THE ORDER PASSED UNDER SECTION 263 AND HAS NOT DEALT WI TH THE ISSUE OF INITIAL ASSESSMENT YEAR BEING ASSESSMENT Y EAR 2004-2005 OR A.Y 2008-2009 AT ALL. HAVING SAID SO THE REVENUE CANNOT NOW EXPAND THE SCOPE OF THE ASSESSME NT ORDER PASSED OR GO BEYOND THE DIRECTIONS OF THE LD. COMMISSIONER OF INCOME TAX IN THE ORDER PASSED UNDE R SECTION 263. THEREFORE THE PRESENT GROUNDS RAISED B Y THE REVENUE ARE DISMISSED FOR THIS REASON. IN ANY CASE WE FIND THAT THIS ISSUE HAD COME UP IN APPEAL BEFORE THE LD . COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2010-11, WHEREIN HE HAD HELD THE MENTIONING OF ASSESSMENT YEAR 2004-2005 IN THE AUDIT REPORT IN FO RM NO. 10 CCB ,AS AN ERROR ON THE PART OF THE ASSESSEE SINCE IN ASSESSMENT YEARS 2008-2009, 2009-10 & 2010-11 TH E AUDIT REPORTS SHOWED THE INITIAL YEAR AS ASSESSMENT YEAR 2008-2009 ONLY. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD THEREFORE ACCEPTED THE CORRECTED AUDI T REPORT FROM THE AUDITOR FILED DURING THE APPELLATE PROCEEDINGS MENTIONING THE INITIAL ASSESSMENT YEAR AS ASSESSMENT YEAR 2008-2009. AGAINST THIS FINDING OF THE LD. COMMISSIONER OF INCOME TAX( APPEALS), WE FIND T HAT THE REVENUE HAD NOT FILED AN APPEAL TO THE ITAT. T HE ISSUE THEREFORE HAS ATTAINED FINALITY. FOR THIS REA SON ALSO THE REVENUE CANNOT CHALLENGE THE SAME BEFORE US IN THE PRESENT APPEAL. IN VIEW OF THE ABOVE, GROUND NO. 1 AND 2 RAISED BY THE REVENUE ARE DISMISSED. 19 13. IN EFFECT THE APPEAL FILED BY THE REVENUE IS DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN I TA NO.595/CHD/2013 IS DISMISSED AND THE APPEAL OF THE REVENUE IN ITA NO.561/CHD/2016 IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH NOVEMBER, 2016 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH