Ratnamani Metals & Tubes Limited, Ahmedabad V. DCIT, Central Circle-2(3), Ahmedabad

ITA 958/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3191 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 16-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: Depreciation; Revised return; Set aside
• Section: 139(5); 80IA

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.958/AHD/2018 / ASSTT. YEAR: 2013-2014 RATNAMANI METALS & TUBES LTD. C/O. MEHTA LODHA & CO. CHARTERED ACCOUNTANTS 105, SAKAR-I, ASHRAM ROAD AHMEDBAAD 380 009. PAN : AABCR 1742 E VS. DCIT, CENT.CIR.2(3) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.D. SHAH, AR REVENUE BY : SHRI VIDHYUT TRIVEDI, SR.DR ! / DATE OF HEARING : 15/10/2019 '#$ ! / DATE OF PRONOUNCEMENT: 03/12/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-12, AHMEDABAD DATED 5.3.2018 PASSED FOR T HE ASSTT.YEAR 2013-14. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN NOT ALLOWING ADDITIONAL GROUND/CLAIM OF DEDUCTIO N UNDER SECTION 80IA(4)(IV) OF THE INCOME TAX ACT, 1961 AMOUNTING T O RS.6,84,59,347/- . ITA NO.958/AHD/2018 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-CO MPANY HAS FILED ITS RETURN OF INCOME ELECTRONICALLY ON 30.11.2013 DECLA RING TOTAL INCOME AT RS.190,55,63,456/-. AT THE RELEVANT TIME, THE ASSE SSEE-COMPANY WAS ENGAGED IN THE BUSINESS OF MANUFACTURING OF STEEL T YPE AND ITS SALE. IT WAS ALSO IN THE BUSINESS OF GENERATING POWER THROUG H WIND-MILL. THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IA(4 ) AT RS.4,82,22,557/-. THE LD.AO HAD ISSUED SHOW CAUSE NOTICE INVITING ITS EXPLANATION ON THE GROUND THAT THE ASSESSEE-COMPANY HAS BEEN ENGAGED IN THE BUSINESS OF GENERATION OF ELECTRICIT Y SINCE ASSTT.YEAR 2003-04, AND IT HAS ONLY CLAIMED DEDUCTION IN THE Y EAR 2009-10 AND 2010-11, 2011-12 AND 2012-13 IN THE RETURN OF INCOM E. ACCORDING TO THE AO, IN EARLIER YEARS, THE LOSS OCCURRED MAINLY ON THE GROUND OF SET OFF OF DEPRECIATION IN RESPECT OF WIND-MILL BUSINES S HAVE BEEN ADJUSTED AGAINST THE INCOME FROM REGULAR BUSINESS, SUCH AS M ANUFACTURING OF STEEL AND TUBES. HE WAS OF THE OPINION THAT LOSS O F EARLIER YEARS HAS TO BE BROUGHT FORWARD NOTIONALLY AND ADJUST AGAINST TH E PROFIT OF BUSINESS OF GENERATING ELECTRICITY. THE ASSESSEE FILED ITS REPLY WHICH HAS BEEN CONSIDERED BY THE AO. HOWEVER, AFTER PUTTING RELIA NCE UPON SUB-SECTION (5) OF SECTION 80IA, THE LD.AO HAS DISALLOWED THE C LAIM OF THE ASSESSEE. DISSATISFIED WITH THE DISALLOWANCE, THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). IT HAS RAISED AN ADDI TIONAL GROUND OF APPEAL ALSO. IT CONTENDED THAT AS FAR AS DEDUCTION CLAIMED BY THE ASSESSEE AT RS.4,82,22,557/- IS CONCERNED, THIS ISS UE IS COVERED IN ITS FAVOUR BY EARLIER ORDERS OF THE ITAT PASSED IN ITS OWN CASE. IT WAS ALSO CONTENDED THAT FROM THE ASSTT.YEAR 2009-10, THE LD. CIT(A) HAS ALREADY ALLOWED THIS TYPE OF COMPUTATION. HOWEVER, IT WAS CONTENDED THAT THE ASSESSEE HAS MISCONSTRUED AND MISINTERPRETED THE PR OVISIONS OF LAW, WHILE PUTTING CLAIM BEFORE THE AO IN THE RETURN OF INCOME. THEREFORE, IT HAS REVISED ITS COMPUTATION AND CLAIMED THE DEDUCTI ON OF RS.6,84,59,347/-. THE ASSESSEE HAS FILED THE FOLLO WING SUBMISSIONS BEFORE THE LD.CIT(A): ITA NO.958/AHD/2018 3 1) IN THIS REGARD WE ARE SUBMITTING HEREWITH THE C OPY OF THE ORDER OF THE HONBLE ITAT-AHMEDABAD, IN THE CASE AC IT VS. .HARSHA ENGINEERS LTD (ITA NO. 2295/AHD/2011 & 1759/AHD/2012) AS ANNEXURE 5 WHERE IN PARA 19 OF TH E ORDER THE HONBLE ITAT HAS HELD HAS UNDER:- SUBSTITUTED SUB-SECTION (2) OF SECTION 80IA,PROVIDE S THAT AN OPTION IS GIVEN TO THE ASSESSEE FOR CLAIMING ANY 10 CONSECUTIVE ASSESSMENT YEAR OUT OF 15 YEARS BEGINNING FROM THE YEAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AND BEGI N TO OPERATE. THE 15 YEARS IS THE OUTER LIMIT WITHIN WHICH THE AS SESSEE CAN CHOOSE THE PERIOD OF CLAIMING THE DEDUCTION. SUB-SE CTION (5) IS A NON-OBSTANTE CLAUSE WHICH DEALS WITH THE QUANTUM OF DEDUCTION FOR AN ELIGIBLE BUSINESS. THE RELEVANT PROVISION OF SUB-SECTION (5) OF SECTION 80IA, READS AS UNDER:- '(5) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT,, THE PROFITS AND GAINS OF AN ELIGIBLE BUS INESS TO WHICH THE PROVISIONS OF SUB-SECTION (1) APPLY SHALL, FOR THE PURPOSES OF DETERMINING THE INITIAL ASSESSMENT YEAR OR ANY SUBS EQUENT ASSESSMENT YEAR, BE COMPUTED AS IF SUCH ELIGIBLE BU SINESS WERE THE ONLY SOURCE OF INCOME OF THE ASSESSEE DURING TH E PREVIOUS YEAR RELEVANT TO THE INITIAL ASSESSMENT YEAR AND TO EVERY SUBSEQUENT ASSESSMENT YEAR UP TO AND INCLUDING THE ASSESSMENT YEAR FOR WHICH THE DETERMINATION IS TO BE MADE.' 20. FROM A PLAIN READING OF THE ABOVE, IT CAN BE GA THERED THAT IT IS A NON- OBSTANTE CLAUSE WHICH OVERRIDES THE OTHER PR OVISIONS OF THE ACT AND IT IS FOR THE PURPOSE OF DETERMINING THE QU ANTUM OF DEDUCTION UNDER SECTION 80IA, FOR THE ASSESSMENT YE AR IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR TO BE COMPUTED AS IF THE ELIGIBLE BUSINESS IS THE ONLY SOURCE OF INCOME. THUS, THE FI CTION CREATED IS THAT THE ELIGIBLE BUSINESS IS THE ONLY SOURCE OF IN COME AND THE DEDUCTION WOULD BE ALLOWED FROM THE INITIAL ASSESSM ENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR. IT NOWHERE DEFINES AS TO WHAT IS THE INITIAL ASSESSMENT YEAR. PRIOR TO 1ST APRIL 2000, THE INITIAL ASSESSMENT YEAR WAS DEFINED FOR VARIOUS TYPES OF EL IGIBLE ASSESSEES UNDER SECTION 80IA(12).HOWEVER, AFTER THE AMENDMENT BROUGHT IN STATUTE BY THE FINANCE ACT, 1999, THE DE FINITION OF 'INITIAL ASSESSMENT YEAR' HAS BEEN SPECIFICALLY TAK EN AWAY. NOW, WHEN THE ASSESSEE EXERCISES THE OPTION OF CHOOSING THE INITIAL ASSESSMENT YEAR AS CULLED OUT IN SUBSECTION (2) OF SECTION 80IA FROM WHICH IT CHOOSES ITS 10 YEARS OF DEDUCTION OUT OF 15 YEARS, ITA NO.958/AHD/2018 4 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 ASSE SSMENT YEAR WHICH HAS ALREADY BEEN SET-OFF CANNOT BE TAUGHT FOR WARD AND ADJUSTED INTO THE PERIOD OF TEN YEARS FROM THE INIT IAL ASSESSMENT YEAR AS CONTEMPLATED OR CHOSEN BY THE ASSESSES. IT IS ONLY WHEN THE LOSS HAVE BEEN INCURRED FROM THE INITIAL ASSESS MENT YEAR, THEN THE ASSESSEE HAS TO ADJUST LOSS IN THE SUBSEQUENT A SSESSMENT YEARS AND IT HAS TO BE COMPUTED AS IF ELIGIBLE BUSI NESS IS THE ONLY SOURCE OF INCOME AND THEN ONLY DEDUCTION UNDER SECT ION 80IA CAN BE DETERMINED. THIS IS THE TRUE IMPORT OF SECTION 8 0IA(5). 2) TILL DATE THE APPELLANT COMPANY HAS BEEN COMPUT ING THE PROFIT ELIGIBLE FOR DEDUCTION U/S 80IA(4)(IV) OF TH E ACT, AFTER SETTING OFF NOTIONALLY BROUGHT FORWARD., LOSS AND D EPRECIATION PERTAINING TO EACH WINDMILL AND ACCORDINGLY IN CASE OF OTHER WINDMILL EVEN WHEN THERE WAS NET PROFIT DURING THE RELEVANT ASSESSMENT YEAR THE SAME WAS NOT CLAIMED AS AFTER C ONSIDERING THE BROUGHT FORWARD LOSS SINCE THE DATE OF PUT TO U SE OVERALL THERE IS LOSS. HOWEVER IN LIGHT OF THE ABOVE RECENT JUDGM ENT OF AHMEDABAD 1TAT IT IS AT THE OPTION OF THE ASSESSEE TO SELECT THE INITIAL ASSESSMENT YEAR. ACCORDINGLY FOR THE A.Y. 2 012-13, THERE IS NET PROFIT DURING THE YEAR UNDER CONSIDERATION AND THERE IS NO BROUGHT FORWARD LOSS OR DEPRECIATION AND HENCE THE ID.AO SHOULD BE DIRECTED TO ALLOW RS. 6,84,59,347 U/S 80IA(4)(IV ) OF THE ACT. WORKING OF THE SAME IS ATTACHED HEREWITH AS ANNEXUR E 6. 3) WITHOUT PREJUDICE TO ABOVE, VIDE CIRCULAR NO. 1/ 2016 THE CENTRAL BOARD OF DIRECT TAXES HAS CLEARLY STATED TH AT 'IT IS ABUNDANTLY CLEAR FROM SUB SECTION (2) THAT AN ASSES SEE WHO IS ELIGIBLE TO CLAIM DEDUCTION U/S 80IA HAS THE OPTION TO CHOOSE THE INITIAL/FIRST YEAR FROM WHICH IT MAY DESIRE THE CLA IM OF DEDUCTION FOR 10 CONSECUTIVE YEARS, OUT OF A SLAB OF FIFTEEN (OR TWENTY YEARS) AS PRESCRIBED UNDER THAT SUB-SECTION. IT IS HEREBY CLARIFIED THAT ONCE SUCH INITIAL ASSESSMENT YEAR HAS BEEN OPTED FO R BY THE ASSESSEE, HE SHALL BE ENTITLED TO CLAIM DEDUCTION U /S 80IA FOR TEN CONSECUTIVE YEARS BEGINNING FROM THE YEAR IN RESPEC T OF WHICH HE HAS EXERCISED SUCH OPTION SUBJECT TO THE FULFILLMEN T OF CONDITIONS PRESCRIBED IN THE SECTION. HENCE, THE TERM 'INITIAL ASSESSMENT YEAR' WOULD MEAN THE FIRST YEAR OPTED FOR BY THE AS SESSEE FOR CLAIMING DEDUCTION U/S 80IA.' 4) IN VIEW OF THE ABOVE FACTS, CIRCUMSTANCES AND L EGAL POSITION THE ADDITION MADE BY THE LEARNED AO IS BAD IN LAW A ND IS THEREFORE REQUIRED TO BE DELETED IN FULL. ITA NO.958/AHD/2018 5 4. THE LD.CIT(A) HAS GONE THROUGH THE CASE OF THE A SSESSEE. SHE ACCEPTED THE CLAIM WHICH WAS MADE BEFORE THE AO, AF TER PUTTING RELIANCE UPON THE ORDER OF HER PREDECESSOR IN EARLI ER YEARS I.E. ASSTT.YEAR 2011-12 AND 2012-13. HOWEVER, WITH REGA RD TO THE ADDITIONAL CLAIM, THE LD.CIT(A) HAS REJECTED IT ON THE GROUND THAT THIS ADDITIONAL CLAIM COULD ONLY BE MADE AFTER A REVISED RETURN IS BEING FILED BY THE ASSESSEE. SINCE THE ASSESSEE HAS NOT FILED REVISED RETURN, THEREFORE, ITS ADDITIONAL CLAIM CANNOT BE ENTERTAIN ED. THE FINDING RECORDED QUA THIS ADDITION, WHICH IS UNDER CHALLENGE BEFORE THE TRIBUNAL READS AS UNDER: 5.4 AS TO THE ADDITIONAL GROUND WHEREIN FURTHER DE DUCTION OF RS.6,84,59,347/-U/S 80IA(4)(IV) OF THE ACT RELYING UPON THE ORDER OF THE HONBLE ITAT, AHMEDABAD IN THE CASE OF ACIT VS HARSH ENGINEERS LTD (SUPRA) IS BEING CLAIMED, IT IS SEEN THAT DURING THE AY 2012-13 THE APPELLANT HAD TAKEN SIMILAR ADDITION AL GROUND FOR CLAIM OF DEDUCTION OF RS.9,82,17,328/- U/S 80IA AND THE CONTENTION OF THE APPELLANT WAS EXAMINED THOROUGHLY BY MY PREDECESSOR CIT (APPEAL) AND THE ADDITIONAL GROUND WAS ADMITTED HOLDING THAT 'AFTER CONSIDERING THE AUTHORITIES REL IED UPON BY THE LD AR AND IN THE VIEW OF THE FACT THAT THE LD AO HA S OBJECTED TO THE ADMISSION OF THE ADDITIONAL GROUND ONLY ON THE FACT THAT FURTHER APPEAL IN THE CASE OFM/S HARSH ENGINEERING HAS BEEN FILED BY THE DEPARTMENT, THE ADDITIONAL GROUND HAS RAISED BY THE APPELLANT IS ADMITTED IN VIEW OF CLEAR MANDATE CONT ENTING THE HIGH COURT DECISION IN M/S ARVIND MILLS LTD.' FOLLOWING THE SAME, THE ADDITIONAL GROUND FOR THE A.Y.2013-14 IS ADMITTED. . 5.5 HAVING ADMITTED THE ADDITIONAL GROUND, MY PREDECESSOR CIT (APPEALS) EXAMINED THE FACTS RELATED TO ADDITIO NAL CLAIM OF DEDUCTION U/S 80IA AND HELD THAT 'AFTER HAVING CARE FULLY CONSIDERED THE FACTS, THE DECISION IN M/S HARSH ENG INEERING AND CONTENT OF CIRCULAR NO. 1 OF 2016,1 HAVE NO DOUBT I N MY MIND THAT THE PROFITS OF THE ELIGIBLE UNITS ON STANDALONE BAS IS HAS ONLY TO BE CONSIDERED FOR AND FROM INITIAL ASSESSMENT YEAR AS OBTAINED BY THE APPELLANT......... AFTER HAVING GIVE A CAREFUL CONSIDERATION TO THE ISSUE RAISED BY WAY OF ADDITIONAL GROUND AND AF TER PERUSAL OF THE AUTHORITY CITED AND RELIED UPON BY THE AR, INCL UDING JURISDICTIONAL HIGH COURT IN ARVIND MILLS LTD (SUPR A) I AM NOT PERSUADED TO GRANT THE RELIEF AS CLAIMED BY WAY OF ADDITIONAL ITA NO.958/AHD/2018 6 GROUND. .......... IN MY CONSIDERED OPINION, THE ON LY PROCEDURE PRESCRIBED STATUTORILY ENABLING THE APPELLANT TO RE DUCE TAX PAID INCOME AS RETURNED, BY WAY OF RETURN, OF INCOME IS TO FILE A REVISE RETURN AS PROVIDED U/S 139(5) ........ THE EXCLUS ION OF CIT (A) FROM THE OPERATION OF GOETZ INDIA LTD 327ITR 303 (S C) WITH REGARD TO CLAIM BY WAY OF PRAYER WITHOUT REVISING T HE RETURN OF INCOME AS APPROVED BY THE JURISDICTIONAL HIGH COURT IN ARVIND MILLS LTD, IN MY CONSIDERED OPINION, CANNOT BE STRETCHED SO AS TO GRANT A RELIEF OR ALLOW AN ADDITIONAL GROUND WHICH HAS EF FECT OF REDUCING THE RETURN INCOME IN VIEW OF THIS I FIND NO MERIT IN THE ADDITIONAL GROUND RAISED BY THE APPELLANT AND THERE FORE THE SAME IS DISMISSED.' I AGREE TO THE STAND TAKEN BY MY PRE DECESSOR. 5.6 I HAVE PERUSED THE SUBMISSION OF THE APPELLANT AND THOUGH I HAVE NOT OBTAINED THE COMMENTS OF THE AO ON ADMIS SION OF ADDITIONAL GROUND (WHICH WOULD NOT HAVE YIELDED A D IFFERENT OUTCOME), I AGREE TO THE DECISION RENDERED BY MY PR EDECESSOR FOR THE A.Y. 2012-13 AND FOLLOWING THE SAME I ALSO DISM ISS THE ADDITIONAL GROUND RAISED BY THE APPELLANT FOR THE A .Y.2013-14. 6. IN THE RESULT THE APPEAL FOR THE AY 2013- 14 IS PARTLY ALLOWED. 5. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT AN IDENTICAL ISSUE AROSE IN THE ASSTT.YEAR 2012-13 WHE REIN THE ASSESSEE HAS MADE ADDITIONAL CLAIM BEFORE THE LD.CIT(A). TH E LD.CIT(A) DID NOT ENTERTAIN THIS CLAIM ON THE GROUND THAT IT COULD ON LY BE MADE BY FILING REVISED RETURN OF INCOME. THE DISPUTE TRAVELLED BE FORE THE TRIBUNAL IN ITA NO.2081/AHD/2016, AND THE TRIBUNAL HAS ALLOWED APPEAL OF THE ASSESSEE VIDE ORDER DATED 14.8.2018. HE PLACED ON RECORD COPY OF THE TRIBUNALS ORDER. ON THE STRENGTH OF THIS ORDER, H E CONTENDED THAT FINDING OF THE LD.CIT(A) IN THE PRESENT ASSESSMENT YEAR IS BASED ON HER PREDECESSORS FINDING IN THE ASSTT.YEAR 2012-13. T HAT FINDING HAS ALREADY BEEN SET ASIDE BY THE TRIBUNAL, AND THEREFO RE, ORDER OF THE LD.CIT(A) ON THIS ISSUE IS NOT SUSTAINABLE. THE LD .DR, ON THE OTHER HAND, WAS UNABLE CONTROVERT THIS SUBMISSION OF THE LD.COU NSEL FOR THE ASSESSEE. ITA NO.958/AHD/2018 7 6. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. A PERUSAL OF ORDER OF THE LD.CIT (A) WOULD REVEAL THAT THE LD.CIT(A) HAS BASICALLY RELIED UPON THE FINDING OF HER PREDECESSOR IN THE ASSTT.YEAR 2012-13. WHEN THAT FINDING FALLEN F OR CONSIDERATION BEFORE THE TRIBUNAL, THEN THE TRIBUNAL DID NOT CONC UR WITH THE FINDING, AND REVERSED IT BY RECORDING THE FOLLOWING FINDING: 6. AGGRIEVED BY THE DENIAL OF THE ADDITIONAL CLAIM WHICH HAS THE EFFECT OF REDUCING THE ASSESSED INCOME BELOW TH E RETURN OF INCOME, THE ASSESSEE KNOCKED THE DOOR OF TRIBUNAL. 7. THE LEARNED AR FOR THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE DISPUTE IN THE PRESENT CASE IS NOT TOWARDS ELIG IBILITY OF DEDUCTION UNDER S.80IA(4) OF THE ACT. IT WAS SUBMITT ED THAT THE CIT(A) AFTER EXAMINATION OF FACTS HAS READILY ACCEP TED THE CLAIM OF DEDUCTION TO THE EXTENT MADE BY THE ASSESSEE IN ITS RETURN OF INCOME. THE DISPUTE IS TOWARDS ADDITIONAL CLAIM OF DEDUCTION MADE BY THE ASSESSEE BEFORE THE CIT(A) WHICH WAS DE NIED ON THE GROUNDS OF ABSENCE OF REVISED RETURN OF INCOME IN THIS REGARD. THE LEARNED AR SUBMITTED THAT THE ASSESSEE E ARNED PROFIT FROM THE WINDMILL PROJECT AMOUNTING TO RS.10,40,61,204/- IN AGGREGATE DURING THE YEAR. HOW EVER, WHILE MAKING THE CLAIM OF DEDUCTION AT THE TIME OF F ILING RETURN OF INCOME, THE ASSESSEE WRONGLY APPLIED THE PROVISI ONS OF LAW AND JUDICIAL INTERPRETATION RENDERED IN THIS REGARD AND THUS WRONGLY ADJUSTED THE LOSSES INCURRED IN THE WINDMIL L PROJECT IN THE PAST PRIOR TO THE EXERCISE OF OPTION TOWARDS 'I NITIAL ASSESSMENT YEAR' ENVISAGED UNDER S.80IA(4) OF THE AC T. DELVING FURTHER, THE LEARNED AR SUBMITTED THAT THE ASSESSEE INCURRED LOSSES IN THE WINDMILL PROJECTS IN THE EARLIER YEAR S, WHICH WAS CLAIMED AS SET OFF AGAINST ITS REGULAR BUSINESS IN EARLIER YEARS IN ACCORDANCE WITH LAW. THUS, NO UNADJUSTED BUSINESS LOSS/DEPRECIATION REMAINED TO BE CARRIED FORWARD FO R SET OFF. HOWEVER, FOR THE PURPOSE OF DETERMINATION OF ELIGIB LE PROFIT UNDER S.80IA(4) OF THE ACT, THE ASSESSEE MISUNDERSTO OD THE RESTRICTIONS PLACED UNDER S.80IA(5) OF THE ACT FOR TH E PURPOSE OF DETERMINATION OF QUANTUM OF DEDUCTION. THE ASSESSEE THUS INCORRECTLY RECREATED THE BUSINESS LOSS/DEPRECIATIO N AROSE IN THE PRECEDING YEARS (PRIOR TO INITIAL ASSESSMENT YE AR) AND NOTIONALL Y ADJUSTED THE SAME FROM THE ELIGIBLE PRO FIT AROSE DURING THE YEAR TO ITS DETRIMENT, OWING TO SUCH MIS - ITA NO.958/AHD/2018 8 INTERPRETATION OF LAW. THE ASSESSEE IMPROPERLY REDU CED ITS ELIGIBLE PROFIT FOR DEDUCTION TO RS.3.05 CRORE AS A GAINST RIGHTFUL CLAIM TOWARDS ELIGIBLE PROFIT OF RS.10.40 CRORE AS A RESULT OF WRONGFUL ADJUSTMENT OF SUCH NOTIONAL LOSSES 'DEEMED ' TO BE CARRIED FORWARD. THE LEARNED AR THEREAFTER CONTENDED THAT HAVING ACCEPTED THE ELIGIBILITY OF CLAIM OF DEDUCTI ON ON FULL AMOUNT OF PROFIT, THERE WAS NO WARRANT FOR THE CIT( A) TO DENY THE DEDUCTION ONLY ON A TECHNICAL GROUND THAT SUCH CLAIM IS PERMISSIBLE ONLY WHERE THE ASSESSEE FILED THE REVIS ED RETURN AND NOT OTHERWISE. THE DECISION OF THE CIT(A) AGAIN ST THE ASSESSEE RESTS ON THE OBSERVATION THAT GRANT OF REL IEF ON ACCOUNT OF SUCH ADDITIONAL GROUND WHICH HAS THE EFF ECT OF REDUCING THE ASSESSED INCOME BELOW THE RETURNED INC OME IS NOT PERMISSIBLE. THE LEARNED AR SUBMITTED THAT SUCH PRE MISE FOR DENIAL OF LAWFUL RELIEF BY THE CIT(A) IS SQUARELY A T ODDS WITH THE LONG LINE OF JUDICIAL PRECEDENTS INCLUDING THE DECI SION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT G AS CO. LTD. VS. JCIT 245 ITR 84 (GUJ); CIT VS. MILTON LAMINATES LTD. TAX APPEAL NO. 1022 OF 2010 JUDGMENT DATED 24.01.2012; CIT VS. ARVIND MILLS LTD. TAX APPEAL NO . 1407 OF 2011 JUDGMENT DATED 05.07.2012; CIT VS. PRUTHVI BROKERS & SHAREHOLDERS P VT. LTD. [2012] 349 ITR 336 (BOM.) ETC. THE LEARNED AR THUS SUBMITTED THAT THE ADDITIONAL CLAIM TOWARDS ENHANCED DEDUCTIO N ELIGIBLE UNDER S.80IA(4) OF THE ACT BE DIRECTED TO BE ALLOWED TO THE ASSESSEE IN ACCORDANCE WITH LAW. 8. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE CIT(A). 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE LAWS CITED. THE CENTRAL ISSUE IN THE PRESENT APPEAL IS WHETHER THE CLAIM OF THE ASSESSEE TOWARDS HIGHER QUANTIFICA TION OF DEDUCTION UNDER S. 80IA(4) OF THE ACT CAN BE ENTERTAINED ON THE BASIS OF FACTS AVAILABLE ON RECORD AND IN THE LIGHT OF JUDICIAL PRECEDENTS AND CBDT CIRCULAR WHERE THE ASSESSEE HAS ORIGINALLY CLAIMED LOWER AMOUNT OF DEDUCTION BY WAY OF RETURN OF INCOME UNDER ERRONEOUS IMPRESSION OF LAW. AS NOTI CED, THE CLAIM MADE BY THE ASSESSEE IN ITS RETURN OF INCOME TOWARDS DEDUCTION UNDER S.80IA(4) OF THE ACT WAS DULY ACCEPTE D BY THE CIT(A) AT THE FIRST APPELLATE STAGE. THE CIT(A) REF USED HIS INDULGENCE TOWARDS THE ADDITIONAL CLAIM AROSE ON AC COUNT OF RE- WORKING OF DEDUCTION IN THE LIGHT OF PREVAILING JUDI CIAL PRECEDENTS AND CBDT CIRCULAR NO.1 OF 2016 DATED 15. 02.2016 ITA NO.958/AHD/2018 9 ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FILE THE REVISED RETURN AND CONSEQUENTLY THE ADDITIONAL RELIEF CANNO T BE ENTERTAINED AS IT WOULD HAVE THE EFFECT OF BRINGING THE ASSESSED INCOME BELOW THE RETURNED INCOME. WE DO NOT FIND AN Y MERIT WHATSOEVER IN SUCH REASONING PROPOUNDED BY THE CIT( A). THE RATIONALE ADOPTED BY THE CIT(A) FOR REFUSAL OF THE ADDITIONAL CLAIM IS IN DIRECT CONTRAVENTION WITH THE JUDICIAL PRECEDENTS CITED ON BEHALF OF THE ASSESSEE (SUPRA). THEREFORE, WE HAVE NO HESITATION TO HOLD ON FIRST PRINCIPLES THAT THE ADD ITIONAL CLAIM REQUIRES TO BE ENTERTAINED WHEN FOUND ELIGIBLE AS P ER THE RELEVANT PROVISIONS OF THE ACT IN THE LIGHT OF THE J UDICIAL PRECEDENTS AND CBDT CIRCULAR ISSUED IN FAVOUR OF TH E ASSESSEE. IT IS WELL SETTLED THAT THE APPELLATE AUTHORITY IS NOT PRECLUDED FROM ADJUDICATING THE ADDITIONAL CLAIMS OF AN ASSES SEE REGARDLESS OF WHETHER THE RETURN WAS REVISED OR NOT . THE REVENUE IS UNDER DUTY TO ASSESS THE TRUE PROFITS OF AN ASSESSEE AND CANNOT TAKE ADVANTAGE OF THE IGNORANCE OF THE AS SESSEE ON THE PROVISIONS OF THE ACT. THUS, THE ACTION OF THE C IT(A) TO THIS EXTENT REQUIRES TO BE SET ASIDE AND ADDITIONAL CLAI M OF THE ASSESSEE AMOUNTING TO RS.7,35,01,934/- REQUIRES TO BE ENTERTAINED. HOWEVER, IN THE SAME VAIN, WE NOTICE T HAT THE QUANTIFICATION ASPECTS OF ADDITIONAL CLAIM FLOWING FROM NOTIONAL SET OFF / CARRY FORWARD OF LOSSES OF EARLIER YEARS FROM ELIGIBLE PROFITS HAS NOT BEEN EXAMINED BY THE AUTHORITIES BE LOW. ACCORDINGLY, WE SET ASIDE THE ISSUE TO THE FILE OF T HE AO FOR THE LIMITED PURPOSES OF DETERMINATION OF CORRECT QUANTU M OF DEDUCTION TO BE COMPUTED WITHOUT SETTING OFF ANY NO TIONAL LOSSES OF THE WINDMILL POWER PROJECT PERTAINING TO THE EARLIER ASSESSMENT YEARS AS DISCUSSED HEREINABOVE. THE AO SH ALL ALLOW ENHANCED DEDUCTION UNDER S.80IA(4) OF THE ACT AS ELIG IBLE TO ASSESSEE IN ACCORDANCE WITH LAW REGARDLESS OF CLAIM MADE BY THE ASSESSEE IN THIS REGARD IN ITS RETURN OF INCOME . 7. THERE IS NO DISPARITY ON THE FACTS, THEREFORE, R ESPECTFULLY FOLLOWING ORDER OF THE COORDINATE BENCH, WE ALLOW THIS ADDITI ONAL GROUND OF APPEAL FOR STATISTICAL PURPOSE. WE REMIT THIS ISSUE TO TH E FILE OF THE AO. THE LD.AO SHALL WORK OUT CORRECT QUANTUM OF DEDUCTION I N ACCORDANCE WITH THE FINDING RECORDED BY THE TRIBUNAL IN THE ASSTT.Y EAR 2012-13. IN VIEW OF THE ABOVE DISCUSSION, SOLE SUBSTANTIAL GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.958/AHD/2018 10 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 3 RD DECEMBER, 2019 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER