2013 (12) TMI 652 - AT - Income Tax

Deduction claimed u/s 80-IA(4) Held that - Following CIT vs. Emerald Jewel Industry P. Ltd 2010 (8) TMI 648 - Madras High Court The assessee-company is eligible for deduction u/s 80-IA in respect of the income from Windmill installed by it - The unabsorbed depreciation set off in earlier years cannot be reduced from the profits for computing the deduction u/s 80-IA The issue remitted back for fresh decision.

Summary

Issues:
1. Validity of reopening assessment
2. Disallowance of deduction claimed u/s 80-IA(4) of the Act
3. Inclusion of capital subsidy in taxable income

Validity of Reopening Assessment:
The appeal challenged the order of the CIT (A) upholding the Assessing Officer's decision to reopen the assessment for the year 2005-2006. The appellant contended that the reopening was bad in law as there was no reason to believe that any income chargeable to tax had escaped assessment. The appellant argued that the assessment cannot be reopened on a debatable point. The counsel referred to revised grounds and emphasized the issue's importance for adjudication.

Disallowance of Deduction u/s 80-IA(4) of the Act:
The appellant contested the order disallowing the deduction of Rs. 19,07,508 claimed under section 80-IA(4) of the Act. The appellant argued that the Assessing Officer erred in adjusting notional unabsorbed losses of earlier years against the income eligible for deduction under section 80-IA(4). The appellant asserted that the law allows the deduction for any ten consecutive assessment years out of 15 years, beginning from the year the undertaking starts generating power. The counsel cited various decisions supporting the appellant's eligibility for the deduction.

Inclusion of Capital Subsidy in Taxable Income:
The appellant further challenged the inclusion of a capital subsidy of Rs. 13,87,500 in the taxable income. The appellant contended that since the deduction under section 80-IA of the Act was disallowed, the capital subsidy received for setting up a windmill should not be included in taxable income as it is a capital receipt and not taxable. The counsel highlighted the nature of the subsidy and its tax treatment.

The Tribunal decided to remit the matter back to the files of the CIT (A) for adjudicating the issue afresh in accordance with the judgments of the Madras High Court and other decisions by the Tribunal. The issue regarding the validity of reopening assessment was considered crucial, and the Tribunal allowed the appellant's appeal partly for statistical purposes. The legal issues raised in grounds 1 and 3 were dismissed as serving academic interests, leading to the partial allowance of the appeal for statistical purposes.