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TMI Blog2015 (3) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... n giving such directions. The Commissioner of Income-tax (Appeals) had directed the Assessing Officer to treat the windmills as a separate undertaking for the purpose of calculating deduction under section 80-IA of the Act though the power generated was captively consumed. The question of set-off of notional losses prior to the initial year of claim does not arise in view of Velayudhaswamy Spinning Mills P. Ltd. v. Asst. CIT [2010 (3) TMI 860 - Madras High Court] . The Commissioner of Income-tax (Appeals) had rightly relied on this decision for taking a view in favor of the assessee. The learned Departmental representative was unable to produce order of any higher authority which could disturb the view taken by the hon'ble jurisdictional High Court. - Decided in favour of assessee. Levy of interest under section 234D - Held that:- The assessee's grievance regarding levy of interest under section 234D cannot be accepted in view of the hon'ble jurisdictional High Court's decision in the case of CIT v. Infrastructure Development Finance Co. Ltd. [2011 (9) TMI 591 - Madras High Court] assessments having been completed after first of June, 2003. - Decided against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate For the Respondent : Dr. S. Moharana, CIT-DR ORDER These are cross-appeals filed by the assessee and the Revenue respectively, directed against the orders of the Commissioner of Income-tax (Appeals)-I, Madurai, for respective assessment years. The appeals of the Revenue are taken up first for disposal. 2. There is only one effective ground taken by the Revenue for all these years. Such ground for the assessment years 2002-03, 2003-04, 2005-06 and 2006-07 assails allowance given to the assessee under section 80-IB of the Act, despite its income being in the negative after set-off of the losses of other units. The ground taken by the Revenue for the assessment years 2007-08 and 2008-09 assails the direction given by the Commissioner of Income-tax (Appeals) to allow the assessee deduction under section 80-IA on windmills, treating it as only source of income, without adjusting earlier year's losses. The ground relating to appeals for the assessment years 2002- 03, 2004-05 and 2006-07 are taken up first. 3. The facts apropos are that the Assessing Officer denied the assessee deduction claimed under section 80-IA for a reason that once inter se adjustmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. Assessing Officer (Income-tax) [2008] 299 ITR 444 (SC). 6. Per contra, the learned authorised representative supported the orders of the Commissioner of Income-tax (Appeals). 7. We have perused the orders and heard the rival submissions. For all the impugned years, what we note specifically from the orders of the learned the Commissioner of Income-tax (Appeals) is that gross total income of the assessee was positive. The assessee had no carried forward loss of earlier years as well. That gross total income for all the impugned assessment years was positive, was not disputed by the learned Departmental representative. Further, the assessee had returned positive total income for all the impugned assessment years, and therefore, by necessary implication its gross total income, before deductions claimed under Chapter VI-A, whatever be that amount, would have only been positive. So, the only question that remains is, when the gross total income is positive, a deduction under sections 80-IA and 80-IB can be worked out independently without setting off losses of units on which such deduction was not being claimed. In our opinion, this question stands already answered by the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the hon'ble apex court in the case of Waterfall Estates Ltd. v. CIT [1996] 219 ITR 563 (SC). The hon'ble apex court in the case of L. M. Chhabda and Sons v. CIT [1967] 65 ITR 638 (SC) has also held that where an assessee carried on business ventures at different places, there was no general principle that they should all be considered as part of single business. Thus, if an assessee had different units resulting in positive gross total income, in view of decisions of the hon'ble jurisdictional High Court in the case of CIT v. Macmillan India Ltd. [2007] 295 ITR 67 (Mad), CIT v. Rathore Brothers [2002] 254 ITR 656 (Mad), CIT v. Suresh B. Mehta [2007] 291 ITR 462 (Mad) and CIT v. M. Gani and Co. [2008] 301 ITR 381 (Mad), each of the unit had to be separately considered for working out deduction under section 80-IA or 80-IB or 80HHC of the Act, once separate accounts were being maintained and there was no interlacing and interdependence. In the given case before us, the assessee had positive gross total income. Therefore, each undertaking had to be considered separately for working out deduction under section 80-IA of the Act, since the gross total income was positive. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance regarding levy of interest under section 234D cannot be accepted in view of the hon'ble jurisdictional High Court's decision in the case of CIT v. Infrastructure Development Finance Co. Ltd. [2012] 340 ITR 580 (Mad), assessments having been completed after first of June, 2003. 15. In its appeals for the assessment years 2002-03, 2005-06, 2006-07 and 2007-08, one of the grievances taken by the assessee is on disallowance made by the Assessing Officer under section 14A of the Act, which was confirmed by the Commissioner of Income-tax (Appeals). 16. The learned authorised representative submitted that for the impugned assessment years rule 8D would not apply at all. The Assessing Officer had simply made an addition relying on section 14A without giving any finding that the assessee had incurred any expenditure in relation to dividend income on which the assessee had claimed exemption. 17. The learned Departmental representative fairly admitted that the matter should go back to the file of the Assessing Officer for proper verification of the issue. 18. We have perused the orders and heard the submissions. The Assessing Officer had disallowed 6 per cent. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in its order dated December 30, 2008 in I.T.A. No. 423/Mds/2007 had remitted the issue back to the Commissioner of Income-tax (Appeals) for fresh consideration. In such fresh proceedings for the assessment year 2003-04 and also the regular appellate proceedings for the assessment year 2005-06, the Commissioner of Income-tax (Appeals) again rejected the claim of the assessee citing a reason that the assessee could not be allowed to amend a return filed by it, otherwise than through a revised return. For this, once again reliance was placed on the decision of the hon'ble apex court in the case of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC). 21. Now before us, the learned authorised representative submitted that the powers of the appellate authority was wide enough to consider a fresh claim even where the assessee had not filed a revised return. 22. The learned Departmental representative strongly supported the order of the Commissioner of Income-tax (Appeals). 23. We have perused the orders and heard the rival submissions. There is no dispute that the assessee had not made any claim for additional depreciation on windmills under section 32(1)(iia) in its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax (Appeals) was justified in not considering such claim raised by the assessee. 24. Related ground of the assessee is dismissed. 25. For the assessment years 2003-04 and 2005-06, one of the grounds raised by the assessee assails the finding of the Commissioner of Income- tax (Appeals) that it had claimed deduction under section 80-IA for the assessment year 2004-05 and the audit report for that year in Form 10CCB mentioned assessment year 2003-04 as the initial year. As per the assessee, there was no claim for deduction under section 80-IA for the assessment year 2003-04. 26. The assessee had raised a claim before the learned Commissioner of Income-tax (Appeals) that the assessment year 2005-06 was the initial assessment year for claiming deduction under section 80-IA in respect of its Wind Farm Vestas. However, the Commissioner of Income-tax (Appeals) did not accept such a claim since according to him, in audit report in Form 10CCB, filed along with the return for the assessment year 2004-05, the assessee had mentioned the initial assessment year as 2003-04. As per the Commissioner of Income-tax (Appeals), once the claim was based on the return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se through a revised return. Relying on the decision of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC), he rejected the claim of the assessee. The assessee's appeal before the Commissioner of Income-tax (Appeals) was not successful. 32. Now before us, the learned authorised representative, assailing the orders of authorities below, submitted that the power of appellate authority would not be circumscribed by the decision of the hon'ble apex court in the case of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC). Therefore, according to him, the claim was unduly rejected by the learned Commissioner of Income-tax (Appeals). 33. Per contra, the learned Departmental representative supported the order of the Commissioner of Income-tax (Appeals). 34. We have perused the orders and heard the rival submissions. Without doubt, the assessee had included in its income, interest from its Malaysian subsidiary. The claim that it was not received and if received withholding tax would be deducted by the Malaysian company, were all new pleadings made during the course of assessment proceedings. The assessee never cared to file a revised return. In our opinion, for the same reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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