ACIT, Coimbatore V. GVG Paper Mills Pvt. Ltd., Udamalpet

ITA 856/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57764 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-01-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R MAHADEVAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENN AI BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. ITA NO.854/MDS./2011 ASSESSMENT Y EAR:2007-08 ITA NO.856/MDS./2011 ASSESSMENT Y EAR:2003-04 ASSISTANT COMMISSIONER OF INCOME TAX, SALARY CIRCLE-I, COIMBATORE. 641 018 VS. M/S.GVG PAPER MILLS PVT. LTD.,NO.168/2,SIKANDHAR BATCHA STREET, GANDHI NAGAR, UDMALPET, 642 154. PAN AABCG 1438 N (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI SHAJI P. JACOB C.I.T. SR. DR ASSESSEE BY : SHRI R.MAHADEVAN DATE OF HEARING : 09.01.12 DATE OF PRONOUNCEMENT : 13.01 .12 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO.854/MDS/11 IS AN APPEAL FILED BY THE REVE NUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(A)- II COIMBATORE IN APPEAL NO.418/09-10 DATED 15.02.2011 FOR ASSESSMENT YEAR 2007-08. ITA NO.856/MDS/11 IS AN A PPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIO NER OF INCOME TAX(A),TIRUCHIRAPALLI IN APPEAL NO.08/10-11 DATED 15.02.2011 FOR ASSESSMENT YEAR 2003-04. AS BOTH TH E PAGE OF 5 ITA. 854 & 856/MDS/11 2 APPEALS RELATED TO THE SAME ASSESSEE AND INVOLVED I DENTICAL ISSUE, THE TWO APPEALS ARE BEING DISPOSED OF BY THI S COMMON ORDER 2. SHRI SHAJI P. JACOB, SENIOR DEPARTMENTAL REPRES ENTATIVE REPRESENTED ON BEHALF OF THE REVENUE AND SHRI R. MA HADEVAN, CHARTERED ACCOUNTANT REPRESENTED ON BEHALF OF THE A SSESSEE. 3. IN THE REVENUES APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (A) IS AGAINST FACTS AND CIRCUMSTANCES OF THE C ASE. 2. THE LD. COMMISSIONER OF INCOME TAX(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80-IA TREATING THE ASSESSMENT YEAR 2001-02 AS T HE INITIAL YEAR. 3. THE LEARNED COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE CONSIDERED THAT INITIAL YEAR SHOULD BE TAKEN A S THE YEAR OF COMMENCEMENT AND ANY LOSSES INCURRED RELATI NG TO THE YEAR PRIOR TO THE INITIAL ASSESSMENT YEAR SH OULD BE BROUGHT BACK NOTIONALLY TO BE ADJUSTED AGAINST THE INCOME OF THE INITIAL OR SUBSEQUENT ASSESSMENT YEAR S TREATING POWER GENERATION TO BE THE ONLY SOURCE OF INCOME OF THE ASSESSEE AS PER THE PROVISIONS OF SECTION 8 0-IA(5). PAGE OF 5 ITA. 854 & 856/MDS/11 3 4. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER RESTORED. 4. IT WAS SUBMITTED BY THE LEARNED D.R. THAT THE I SSUE WAS AGAINST THE ACTION OF THE LEARNED C.I.T.(A) IN DIRE CTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80-IA IN T REATING THE INCOME OF THE WINDMILL AS A SEPARATE AND IDENTIFIAB LE UNDERTAKING ENGAGED IN GENERATION AND DISTRIBUTION OF POWER. IT IS THE SUBMISSION THAT LEARNED C.I.T.(A) HAD REL IED UPON THE DECISION OF ITAT IN ASSESSEE'S OWN CASE FOR THE ASS ESSMENT YEARS 2004-05 & 2005-06 IN ITA NOS. 1350 & 1351/MDS /2010 DATED11.01.2011. IT WAS THE SUBMISSION THAT THE OR DER OF THE TRIBUNAL HAD NOT BECOME FINAL AND APPEALS WERE PEND ING BEFORE THE HONBLE JURISDICTIONAL HIGH COURT. IT W AS THE SUBMISSION THAT THE ORDER OF THE LD. C.I.T.(A) WAS LIABLE TO BE REVERSED. LEARNED A.R. IN REPLY VEHEMENTLY SUPPORT ED THE ORDER OF THE C.I.T.(A). IT WAS ALSO THE SUBMISSION THAT THE ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEARS 2004-05 & 2005-06 BY THE ITAT S ORDER NOS.1350 & 1351/MDS/2010 REFERRED TO SUPRA. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT THE ISSUE IN THE PRESENT APPEAL IS SQUARELY CO VERED BY THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN AS SESSEE'S OWN CASE FOR ASSESSMENT YEARS 2004-05 & 2005-06 IN ITA NOS.1350 & 1351/MDS/2010 REFERRED TO SUPRA WHEREIN THE TRIBUNAL HAS DISMISSED THE REVENUES APPEAL FOLLOWI NG THE PAGE OF 5 ITA. 854 & 856/MDS/11 4 DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF M/S.VELAYUDHASAMY SPINNING MILLS (P) LTD. AS ALSO T HE DECISION IN THE CASE OF M/S.MOHAN BREWERIES & DIST ILLERIES LTD. AS IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL, WHICH HAS FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONA L HIGH COURT IN THE CASE OF M/S.VELAYUDHASAMY SPINNING MILLS (P ) LTD., AS ALSO M/S.MOHAN BREWERIES & DISTILLERIES LTD., THE FINDING OF THE LEARNED C.I.T.(A) ON THIS ISSUE STANDS CONFIRMED. IN THE CIRCUMSTANCES, THE APPEALS OF THE REVENUE STAND DIS MISSED. 6. IN RESULT, THE APPEALS OF THE REVENUE STAND DIS MISSED. ORDER PRONOUNCED ON 13 TH JANUARY, 2012. SD/- SD/- (N.S.SAINI ) ( GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 13 TH JANUARY, 2012. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE PAGE OF 5 ITA. 854 & 856/MDS/11 5 DATE INITIALS 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHORITY 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S. 6. KEEP FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER