ACIT, CHENNAI V. GRT Hotels & Resorts Pvt. Ltd., CHENNAI

ITA 837/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9145 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 01-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN IRS
• Assessee Lawyers: S SRIDHAR
• Keywords: Depreciation; Reason to believe; Unabsorbed depreciation
• Section: 143(3); 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.836/MDS/2016 # % &% / ASSESSMENT YEAR : 2007-2008. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3(3) CHENNAI 600 034. VS. M/S. GRT JEWELLERS (INDIA) PVT. LTD, 138, USMAN ROAD, T. NAGAR, CHENNAI 600 017. [PAN AAACR 3582R ] ./ I.T.A. NOS. 837 & 838/MDS/2016 # % &% / ASSESSMENT YEARS :2011-12 & 2012-13. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3(3) CHENNAI 600 034. VS. M/S. GRT HOTELS & RESORTS PVT. LTD, 138, USMAN ROAD, T. NAGAR, CHENNAI 600 017. [PAN AAACG 3608B] ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. P. RADHAKRISHNAN, IRS, JCIT. +,'( ) * /RESPONDENT BY : SHRI. S. SRIDHAR, ADVOCATE ! ) - / DATE OF HEARING : 08-06-2016 ./& ) - / DATE OF PRONOUNCEMENT : 10-06-2016 ITA NO. 836 TO 838/MDS/2016. :- 2 -: / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER :- THESE APPEALS FILED BY THE REVENUE ARE DIRECTED A GAINST DIFFERENT ORDERS OF COMMISSIONER OF INCOME-TAX (APP EALS)-19, CHENNAI FOR THE ABOVE ASSESSMENT YEARS PASSED U/S.143(3) R .W.S. 147 AND U/SEC. 143(3) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). SINCE THE ISSUE IN THESE APPEALS IS COM MON IN NATURE, HENCE THESE APPEALS ARE COMBINED, HEARD TOGETHER, AND DIS POSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. WE CONSID ER THE FACTS AS NARRATED IN ITA NO.836/MDS/2016 OF ASSESSMENT YEAR 2007-08 FOR ADJUDICATION. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS WITH REG ARD TO DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80- IA OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IN RESPECT OF WINDMILLS.. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 20 07-08 ON 13.10.2007 DISCLOSING TOTAL INCOME OF =3,25,46,675 /- AND ASSESSMENT WAS COMPLETED U/SEC.143(3) DATED 31.12.2009. SUBSEQ UENTLY, THE LD. ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AS ASSESSEE HAS CLAIMED DEDUCTION U/S.80 IA OF THE ACT BEFORE SET OFF OF UNABSORBED DEPRECIATION OF EARLI ER YEARS AND NOTICE U/S.148 OF THE ACT WAS ISSUED AND RE-ASSESSMENT U/S EC. 143(3) ITA NO. 836 TO 838/MDS/2016. :- 3 -: R.W.S.147 WAS COMPLETED ON 26.06.2014 DISALLOWING DEDUCTION OF =30,04,496/- UNDER SECTION 80IA OF THE ACT BY NOTIO NALLY BRINGING IN AND SETTING OFF THE BROUGHT FORWARD UNABSORBED DEPR ECIATION LOSS FOR DETERMINING THE PROFITS QUALIFYING FOR DEDUCTION U/ S.80IA FROM THE INITIAL ASSESSMENT YEAR BEING THE YEAR RELEVANT TO THE FINANCIAL YEAR IN WHICH OPERATIONS RELATING TO THE WINDMILL INFRASTRU CTURE COMMENCED . AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) .. 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS ) OBSERVED THAT THE ISSUE IS COVERED BY THE JURISDICT IONAL HIGH COURT ORDER IN THE CASE OF CIT VS. VELAYUTHASAMY SPINNING MILLS 231 CTR 368 AND ALLOWED THE CLAIM OF THE ASSESSEE. AGAINST COMM ISSIONER OF INCOME TAX (APPEALS) ORDER, THE REVENUE ASSAILED A N APPEAL BEFORE TRIBUNAL. 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. THE ONLY CONTENTION OF THE DEPARTMENT BEFOR E THE TRIBUNAL THAT THE REVENUE HAS NOT ACCEPTED THE JUDGMENT OF M ADRAS HIGH COURT AND AN APPEAL HAS ALREADY BEEN FILED ALONG WITH SPE CIAL LEAVE PETITION AND THE SAME IS PENDING BEFORE THE APEX COURT. TH IS TRIBUNAL IS OF THE CONSIDERED OPINION THAT MERE PENDENCY OF SPECIA L LEAVE PETITION BEFORE THE APEX COURT CANNOT BE A REASON TO TAKE A DIFFERENT VIEW. THE JUDGMENT OF MADRAS HIGH COURT IS BINDING ON ALL THE AUTHORITIES IN ITA NO. 836 TO 838/MDS/2016. :- 4 -: THE STATE OF TAMIL NADU AND UNION TERRITORY OF POND ICHERRY. THEREFORE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE BINDING JUDGMENT OF MADRAS HIGH COURT IN VELAYUDHASWAMY SPINNING MILLS (P) LTD (SUPRA). THEREFORE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). THE APPEAL OF THE REVENUE IS DISMISSED. 6. CONSEQUENTLY, THE APPEALS OF THE REVENUE IN ITA NO S.837, 838/MDS/2016 FOR ASSESSMENT YEARS 2011-2012 & 2012- 13 ARE DISMISSED. 7. IN THE RESULT, THE APPEALS OF THE DEPARTMENT IN IT A NOS. 836, 837 & 838/MDS/2016 ARE DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 10TH DAY OF JU NE, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI 1 / DATED: 10.06.2016 KV 2 ) +#-34 54&- / COPY TO: 1. '( / APPELLANT 3. ! 6- () / CIT(A) 5. 4 9: +#-# / DR 2. +,'( / RESPONDENT 4. ! 6- / CIT 6. :;% < / GF