ACIT, CHENNAI V. Khivraj Automobiles & Infrastructure Pvt. Ltd., CHENNAI

ITA 789/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4298 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 31-03-2017
• Court: TRIBUNAL
• Department Lawyers: B NISCHAL
• Assessee Lawyers: AJITH CHORADIA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , # , ' ( BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ./ ITA NOS.787, 788, 789 & 790/MDS/2017 '# # /ASSESSMENT YEARS: 2009-10, 2012-13, 2013-14 & 2014 -15 THE ASST. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-4(2), CHENNAI-600 034 VS. M/S.KHIVRAJ AUTOMOBILES & INFRASTRUCTURE PVT. LTD., 617, BHARAT KUMAR BHAVAN, ANNA SALAI, THOUSAND LIGHTS, CHENNAI-600 006. [PAN: AABCK 6189 L ] ( * /APPELLANT) ( +,* /RESPONDENT) * - / APPELLANT BY : MR.B.NISCHAL, JCIT +,* - /RESPONDENT BY : MR.AJITH CHORADIA, CA - /DATE OF HEARING : 06.06.2017 - /DATE OF PRONOUNCEMENT : 06.06.2017 / O R D E R PER BENCH : ITA NOS.787, 788, 789 & 790/MDS/2017 ARE FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-8, CHENNAI, IN ITA NOS.50/2011-12, 59/2015-16 & 106 & 274/2016- 17 DATED 30.01.2017 FOR THE AYS 2009-10, 2012-13, 2013-14 & 2014-15 . ITA NOS.787 TO 790/MDS/2017 :- 2 -: 2. MR.B.NISCHAL, JCIT REPRESENTED ON BEHALF OF THE REVENUE AND MR.AJITH CHORADIA, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LD.AR THAT THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDER OF THE LD.CIT(A) ALLOWING THE ASSESSEES CLAIM FOR DEDUCTION U/S.80IA(1) OF THE ACT IN RESPECT OF INCOME FROM WIND MILLS. IT WAS A SUBMISSION THAT THE AO HAD DISALLOWED THE ASSESSEES CLAIM FOR DEDUCTION U/S.80IA(1) ON THE GROUND THAT THE ASSESS EE WAS NOT THE OWNER OF THE WIND MILLS AND HAD TAKEN THE WIND MILLS ON L EASE AND, CONSEQUENTLY, THE ASSESSEE COULD ONLY BE HELD TO BE THE CONTRACTO R IN RESPECT OF THE RUNNING OF THE WIND MILLS. IT WAS A SUBMISSION THA T THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AYS 2008-09, 2010-11 & 2011-12 IN ITA NOS.1176, 1177 & 1178/MDS/2015 DAT ED 03.05.2017 HAS HELD THAT UNDER THE PROVISIONS OF SEC.80IA(4)(I V), THERE WAS NO BAR ON THE ASSESSEE TO GENERATE POWER BY TAKING THE ASS ETS ON LEASE FOR CLAIMING DEDUCTION U/S.80IA(1). IT WAS A SUBMISSIO N THAT CO-ORDINATE BENCH OF THIS TRIBUNAL HAD FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE ASSESSEES OWN CAS E IN WRIT PETITION NO.11871/2011 DATED 14.03.2012 WAS HELD IN PARA NO. 20 AS HELD AS FOLLOWS: 20. I AGREE WITH THE SUBMISSION MADE BY THE LEARNE D COUNSEL APPEARING FOR THE PETITIONER THAT IN CONTRADISTINCTION TO SUB-CLAUSE (V) TO SUB-S ECTION (4) OF SECTION 80IA, THERE IS NO QUALIFICATION TO BE READ INTO THE TERM UNDERTAKING SO AS TO BE RESTRICTIVE OF AN ASSESSEE TO BE A OWNER ALONG TO CLAIM THE BENEFIT UNDER SECTION 80IA. CONTRARY TO THE ASSERTION OF THE LEARNED STANDING COUNSEL APPEARING FOR THE REVENUE, I DO NOT FIND ANYTHING IN SUB-SECTION (3) OF SECTION 80IA, WHICH WOULD GO AGAINST THE CLAI M OF THE ASSESSEE HEREIN THAT THE MERE FACT THAT THE ASSESSEE IS A LESSEE, PER SE, DOES NO T RESULT IN ANY DISQUALIFICATION TO REJECT THE DEDUCTION CLAIM UNDER SECTION 80IA. ITA NOS.787 TO 790/MDS/2017 :- 3 -: IT WAS A SUBMISSION THAT THESE APPEALS FILED BY TH E REVENUE WERE LIABLE TO BE DISMISSED. 4. THE LD.DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO. IT WAS A SUBMISSION THAT THE ASSESSEE WAS NOT THE OWNER OF T HE WIND MILLS AND CONSEQUENTLY THE ASSESSEE WAS NOT ENTITLED TO THE D EDUCTION U/S.80IA(1) OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ON PE RUSAL OF THE ORDERS OF CO-ORDINATE BENCH OF THIS TRIBUNAL FOR THE AYS 2 008-09, 2010-11 & 2011-12 IN ITA NOS.1176, 1177 & 1178/MDS/2015 DATED 03.05.2017, WHICH WAS HELD AS UNDER: FROM THE PLAIN READING OF THE SECTIONS 80-IA(4)(IV), THERE WAS NO BAR ON THE ASSESSEE TO GENERATE POWER BY TAKING THE ASSETS ON LEASE FOR CL AIMING DEDUCTION U/S 80IA(4)(IV). THE CONDITIONS FOR GRANTING THE DEDUCTION AS LAID DOWN IN SECTION 80IA ARE (I) GENERATION OF POWER (II) THE UNIT SHOULD NOT FORMED BY THE SPLITTI NG UP OF BUSINESS AND (III) THE UNIT SHOULD HAVE BEEN FORMED DURING PERIOD 01/04/1993 TO 31/03/201 7 APART FROM OTHER CONDITIONS MAINTENANCE OF ACCOUNTS AND FILING OF THE TAX AUDIT REPORT AND FILING THE RETURN OF INCOME BEFORE THE DUE DATE. THE ASSESSEE HAS SATISFIED ALL THE CONDITIONS AND THIS FACT WAS NOT DISPUTED BY THE LD.DR DURING THE APPEAL. SINCE TH E ASSETS WERE NOT PUT USE BY THE LESSOR AND THE ASSETS WERE FIRST PUT TO USE BY THE ASSESSE E FOR POWER GENERATION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND THE SAME IS UPHELD. 6. FURTHER, A PERUSAL OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE WRIT PETITION NO.11871/2011 DATED 14.03.2012 IN THE ASSE SSEES OWN CASE AS HAS BEEN EXTRACTED ABOVE IN PARA NO.20 SHOWS THAT T HE ASSESSEE CAN CLAIM THE DEDUCTION U/S.80IA(1) EVEN THOUGH THE ASS ESSEE HAS LEASED THE WIND MILLS. IN THESE CIRCUMSTANCES, RESPECTFULLY F OLLOWING THE DECISION OF THIS TRIBUNAL AND ALSO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT ITA NOS.787 TO 790/MDS/2017 :- 4 -: IN THE ASSESSEES OWN CASE, THE FINDINGS OF THE LD. CIT(A) STANDS CONFIRMED. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 06, 201 7, AT CHENNAI. SD/- SD/- ( ) ( SANJAY ARORA ) /ACCOUNTANT MEMBER ( # ) (GEORGE MATHAN) ' /JUDICIAL MEMBER /CHENNAI, 3 /DATED: JUNE 06, 2017. TLN - +'45 65 /COPY TO: 1. * /APPELLANT 4. 7 /CIT 2. +,* /RESPONDENT 5. 5 +'' /DR 3. 7 ( ) /CIT(A) 6. # /GF