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TMI Blog2014 (10) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... not based just on failure to obtain NOC from the pollution Control Board but it was based on the factual facts. 2. Whether the Ld. CIT(A) has erred in law and on facts not to appreciate the fact that ecotourism is the condition precedent, to be complied with for hotels for claiming deduction u/s 80-IC of the IT. Act, 1961. 3. Whether the Ld. CIT(A) has erred in law and on facts in holding that deduction should be allowed if the assessee satisfies the following conditions:- (a) It is a Hotel, (b) It has a valid License, (c) NOC from the pollution Control Board has not been denied to it. 2. Brief facts The assessee, a partnership firm, under the name and style of M/s. Tapovan Resorts at Tapovan, Tehri Garhwal. The assessee claimed dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3 of that departmental appeal is prima-facie misconceived as all the three points viz :- a. That it is a Hotel, b. That it has a valid license, c. That NOC from the Pollution Control Board has not been denied to it 6. We have heard Shri O.P. Sapra, the Ld.Counsel for the assessee and Shri Sameer Sharma, Sr. D.R. on behalf of the Revenue. 7. On a careful consideration of the facts and circumstances of the case, on a perusal of the material on record, orders of the authorities below and case laws cited, we hold as follows. 8. The assessee made its claim for deduction u/s 80IC for the first time during the asstt. Year 2007-08. This claim has been allowed and has not been withdrawn till date. Similar claim was not disallowed or withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade and allowed in the earlier years is given in the table below. Sr. No. Assessment Year Deduction claimed u/s 80IC (Rs.) Disallowance 80IC (Rs.) Assessment u/s i) 2005-06 31,069/- -------- 143(3)(page 18 of Paper Book) ii) 2006-07 23,25,655/- --------- 143(3) (pages 19- 20 of Paper Book) iii) 2007-08 67,19,255/- --------- 143(1) iv) 2008-09 1,06,03,655/- -------- 143(3)(page 23 of Paper Book) v) 2009-10 72,28,540/- 72,28,540/- Disputed in Appeal vi) 2010-11 8,72,235/- -------- 143(1) 13.1. The assessments of the earlier years or the later years are not disturbed and the assessee was allowed the claims u/s 80IC. 14. The Hon'ble Delhi High Court in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity." 75. In the facts of the present case, where although the Assessing Officer has allowed the assessee deduction under section 80-1 of the Act in the preceding years, one may still have certain reservations as to whether the issue of eligibility of Unit nos. 2 and 3 fulfilling the conditions has been finally settled, since the question has not been a subject matter of any appellate proceedings in the years preceding the assessment year 1991-92. However, there is yet another aspect which needs to be considered. By virtue of section 80-I(5) of the Act, ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80-1 of the Act, the applicability of the section is determined in the year in which the new industrial undertaking is established. The qualification as to whether any industrial undertaking fulfills the condition as specified under section 80-1 of the Act has to be determined in the year in which the new industrial undertaking is established. Although the deduction under section 80-1 of the Act is available for the assessment years succeeding the initial assessment year, the conditions for availing the benefit are inextricably linked with the previous year relevant to the assessment year in which the new undertaking was formed. In such circumstances, it would not be possible for an Assessing Officer to reject the claim of an asseses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Cement & Chemical Industries (supra) is quoted below :- "The next question to which the Tribunal addressed itself, and no our opinion rightly, was whether the Tribunal was justified in refusing to continue the relief of tax holiday granted to the assessee-company for the assessment year 1968-69, in the assessment year under reference, that is, 1969-70, without disturbing the relief granted for the initial year. It should be stated that there is no provision in the scheme of s. 80J similar to the one which we find in the case of development rebate which could be withdrawn in subsequent years for breach of certain conditions. No doubt, the relief of tax holiday under section 80J can be withheld or discontinued provided the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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