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TMI Blog2015 (6) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities below has not bring HOTEL in the ambit of ECO-TOURISM and deviated from the main section 80IC of the Act. 3. The item no. 15 of PART-C of XIV schedule includes hotels under ECOTOURISM which is grossly mistaken by both the authorities below. 4. It is prayed to allow the claim of deduction u/s 80IC of Rs. 8,16,195/- and delete the entire addition." 2. Facts in brief:- The assessee is a company and filed its return of income on 26.8.2008 declaring nil income after claiming deduction u/s 80 IC at Rs. 8,16,195/- for the AY 2008-09. The Assessing Officer (the 'AO') denied exemption claimed by the assessee u/s 80 IC of the Income Tax Act, 1961 (the 'Act') by observing as follows: "3.8 I have considered the submission of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has visited the hotel and found that no measures for promoting ecotourism are adopted by the hotel. 3.9 Assessee made a writ petition before the Hon'ble High Court of Uttaranchal, Nainital against the assessment proceedings before any assessment order was passed by the A.O. The Hon'ble High Court of Uttaranchal Nainital has dismissed the writ petition of the assessee with directions 'that Assessing officer shall conclude the proceedings of assessment as expeditiously as possible, preferable within a period of three . months, If not already concluded from the date of production of certified copy of this order before him. The above action of the assessee proves that the assessee was well aware about his false claim for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Revenue authorities and submitted that the term echo tourism has to be properly appreciated and as the assessee does not possess any clearance from Pollution Control Board of Uttarakhand Govt., the exemption cannot be granted. 7. After hearing rival contentions, perusing papers on record, orders of authorities below, we hold as follows. 8. The assessee has been granted deduction u/s 80 IC for the AY 2005- 06, 2006-07 and 2007-08. The first year of claim was the A.Y. 2005-06. That the impugned AY i.e. AY 2008-09 is the fourth year of the claim. This Bench of the Tribunal in the case of ITO vs. M/s Ganga Beach Restorts order dt. 27.9.2013 has held as follows. "13. We are not expressing any opinion on the above findings of the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the initial year, but in all the assessment years in which the deduction u/s 80I is claimed by the assessee. The Hon'ble High Court at Para 74 to Para 80 held as follows :- '' 74. In the present case, the claim of the assessee u/s 80-I of the Act was examined and allowed by the Assessing Officer for three years preceding the assessment year 1991-92. It is relevant to note that assessments in the earlier years i.e relating to assessment years 1988-89, 1989-90 and 1990-91 has not been disturbed by the Assessing Officer and there has been no change that could justify the Assessing Officer adopting a different view in the assessment years 1991-92 and thereafter. As stated hereinbefore, in certain cases where the issues involved have attain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its cold storage plant or plants or the ship is first brought into use or the business of the hotel starts functioning or the company commences work by way of repairs to ocean-going vessels or other powered craft. Such deduction is also available for the seven assessment years immediately succeeding the initial assessment year. Surely in cases where an assessee is held to be eligible for deduction in the initial assessment year, the same cannot be denied in the subsequent assessment years on the ground of ineligibility since the set of facts which enable an assessee to claim to be eligible for deduction under section 80-1 of the Act occur in the previous year relevant to the initial assessment year and have to be examined in the initial ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in the initial assessment year. This in our view would not be permissible unless the past assessments are also disturbed. 77. The Assessing Officers over a period of three years being assessment years 1988-89, 1989-1990 and 1990-1991 have consistently accepted the claim of the assessee for deduction under section 80-I of the Act and it would not be open for the Assessing Officer to deny the deduction under section 80-1 of the Act on the ground of non fulfillment of the conditions under section 80- 1(2) of the Act without disturbing the assessment for the assessment years relevant to the previous year in which the Unit Nos. 2 & 3 were established. 78. This view has also been accepted by a Division Bench of Gujarat High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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