Patankar Wind Farm P.Ltd., Satara V. ITO, Tech-III, Pune, Pune

ITA 634/PUN/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7642 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 14-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K TIWARICIT
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI G.S. PANNU (AM) ITA NO. 634 /PN/200 8 ( ASSTT. YEAR : 200 3 - 04 ) PATANKAR WIND FARM P . LTD. SHIKKA MANSION, PATAN , SATARA PAN : NOT AVAILABLE .. APPELL ANT V. COMMISSIONER OF INCOME - TAX - III, PUNE . RESPONDENT A PPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY : SHRI K.K. TIWARI(CIT) ORDER PER I.C. SUDHIR JM IN THIS APPEAL, ORDER U/S. 263 HAS BEEN IMPUGNED BY THE ASSESSEE ON SEVERA L GROUNDS , QUESTIONING MAINLY THE ACTION OF T H E LD. CIT IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT WITH DIRECTION TO THE A.O TO WITHDRAW THE DEDUCTION CLAIMED U/S. 80IA OF THE ACT HOLDING THE ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 2. ONE OF THE GROUNDS RAISED IS THAT UNDER APPEAL IS THE INITIAL YEAR WHEN FOR THE FIRST TIME DEDUCTION UNDER SECTION 80IA WAS CLAIMED, THEREFORE, THE PROVISIONS OF SECTION 80IA(5) READ WITH SECTION 80IA(1) WERE NOT APPLICABLE FOR THE EARLIER ASSESSMENTS AND THERE WAS NO QUESTION OF NOTIONALLY CARRYING FORWARD ANY LOSS OR UNABSORBED DEPRECIATION FROM THESE YEARS. 3. AT THE OUTSET OF HEARING, THE LD. A.R. SUBMITTED THAT THE ISSUE RAISED IN THE GROUNDS IS FULLY COVERED BY THE FOL LOWING DECISIONS OF THE PUNE BENCH OF THE TRIBUNAL : 1) PADMAVATI WIND ENERGY P.LTD. V/S. ACIT, ITA NO. 618/PN/2008 (A.Y. 2003 - 04), ORDER DT. 29TH OCTOBER, 2010. ITA NO 634 /PN/200 8 PATANKAR WIND FARM P. LTD.. ASSTT. YEAR : 2003 - 04 PAGE OF 3 2 2) MAHESH TEXTILE PROCESSORS V/S. ACIT, ITA NO. 511 & 512/PN/2009,(A.Y. 2004 - 05 & 2005 - 06), O RDER DT. 16 TH MARCH 2010. 3) G.B. RUBBER PRODUCTS V/S. DCIT, ITA NO. 459/PN/2009 (A.Y. 2004 - 05), ORDER DT. 16 TH DECEMBER 2010. 4. THE LD. D.R., ON THE OTHER HAND, TRIED TO JUSTIFY THE ORDER IMPUGNED. 5. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT ON AN IDENTICAL ISSUE, UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF PADMAVATI WIND ENERGY P.LTD. V/S. ACIT (SUPRA), FOLLOWED IN THE ABOVE MENTIONED OTHER CASES, HAS HELD AS UNDER IN ITS CONCLUDING PARA NO. 8 OF THE ORDER : 8. IN VIEW OF ABOVE DISCUSSION, WHILE HOLDING THAT THE CIT HAS EXERCISED THE JURISDICTION CORRECTLY U/S 263, WE HOWEVER MODIFY THE DIRECTIONS GIVEN BY THE CIT TO THE A.O AS THE SAID DIRECTIONS ARE NOT CORRECT ON THE FACTS STATED ABOVE. CONSEQUENTL Y, WE MODIFY THE DIRECTIONS OF THE CIT TO SET ASIDE THE ORDER OF THE A.O AND DIRECT HIM TO RECONSIDER THE ISSUE OF THE INITIAL ASSESSMENT YEAR, COMPUTATION OF THE PROFITS U/S. 80IA, COMPUTATION OF TOTAL INCOME AND CARRY FORWARD OF LOSSES AND DEPRECIATION A ND ALSO THE COMPUTATION U/S. 115JB AS PSER THE PROVISIONS OF THE ACT AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. THE ORDER OF THE CIT TO THAT EXTENT, MORE SO THE DIRECTIONS GIVEN IN PARA 5.5 AND 7 OF HIS ORDER HAVE BEEN MODIFIED AND ASSESSMENT MADE U/S. 143(3) DATED 21/10/2005 IS HEREBY, SET ASIDE. A.O IS DIRECTED TO REDO THE ASSESSMENT DENOVO ACCORDINGLY. FOLLOWING THE ABOVE DECISION OF THE PUNE BENCH IN THE CASE OF PADMAVATI WIND ENERGY P. LTD., WE WHILE HOLDING THE ACTION OF LD CIT TAKEN U/S. 2 63 AS VALID, MODIFY THE DIRECTION GIVEN BY THE LD CIT TO THE A.O , TO RECONSIDER THE ISSUE OF THE INITIAL ASSESSMENT YEAR, COMPUTATION OF THE PROFIT U/S. 80IA, COMPUTATION OF TOTAL INCOME AND CARRY FORWARD OF LOSSES AND DEPRECIATION AS PER THE PROVISIONS O F THE ACT , AFTER GIVING DUE OPORTUNITY OF HEARING TO THE ASSESSEE. 6. THE APPEAL UNDER CONSIDERATION IS THUS ALLOWED TO THAT EXTENT. ITA NO 634 /PN/200 8 PATANKAR WIND FARM P. LTD.. ASSTT. YEAR : 2003 - 04 PAGE OF 3 3 ORDER PRONOUNCED IN THE OPEN COURT ON 21ST JANUARY, 2011 SD/ - SD/ - ( G.S.PANNU ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 21ST JANUARY , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PPELLANT 2. THE RESPONDENT 3. THE CIT , CONCERNED 4 . THE D.R. B BENCH, PUNE 5 . GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE