9911796707
TMI Blog2016 (7) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... beit, for reasons somewhat different from those which prevailed with the Tribunal. There being no carry forward of allowable deductions under the head depreciation or development rebate which needed to be absorbed against the income of the current year and, therefore, recomputation of income for the purpose of computing permissible deduction under section 80-I for the new industrial undertaking was not required in the present case. - Decided in favour of assessee - T.C.A. Nos. 881 to 884 of 2007 - - - Dated:- 6-7-2016 - S. Manikumar And D. Krishnakumar, JJ. For Appellant :Mr.N.Devanathan For Respondent :Mr.T.R.Senthilkumar ORDER ( Order of the Court was made by S.MANIKUMAR, J.) Instant Tax Appeal Nos.881 to 884 of 2007 have been filed, assailing the correctness of the Common Order made in ITA Nos.1749 to 1752/Mds/03 dated 19.07.2006. At the time of filing the Tax Case Appeals, the appellant has raised the following substantial questions of law: 1. Whether in the facts and circumstances of the case, and on the evidence on the record, the order of the Tribunal is not correct in law and perverse in regard to reopening of the assessment in view of: (a) Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased the windmills, at a cost of ₹ 2,72,56,875/- and windmill qualifies 100% depreciation and as per the assessee's version, windmill qualifies 100% depreciation under Section 32 of the Income Tax Act, 1961 r/w appendix 1, Rule 5 of the Income Tax Rules. The appellant claimed deduction under Section 80-IA from the Assessment years 1997-98 to 2000-2001. However the Assessing Officer issued notice under Section 148 of the Income Tax Act, 1961 in respect of the Assessment Year 1997-98 to 2000-2001 for the purpose of reopening assessment under Section 147, based on audit objections. Assessing Officer, also pointed out that as per the decisions of the Hon'ble Supreme Court in CIT v. P.V.S. Beedies Pvt. Ltd. reported in 237 ITR 13 (SC), reopening of assessment on the basis of the factual error pointed out by Internal Audit Party is permissible under the law. Objection of the appellant for reopening on the basis of the change of opinion, has been overruled, following the judgment of the Delhi High Court in Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT and another reported in 246 ITR 173 (Del). Thus the Assessing Officer, disallowed the claim of deduction under Section 80- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and the fact that as per the order of the Tribunal it was made clear that no further adjournment shall be given in the matter, we reject the adjournment application which is filed without any medical certificate and proceed to decide the matter ex parte, qua the assessee, on merits. 4. The first common issue pertains to the question whether the conditions precedent for assumption or jurisdiction u/s 147 of the Income Tax Act, 1961 did exist in the facts and circumstances of the case. 5. In the adjournment petition counsel for the assessee did mention that assessee was awaiting the copy of the audit objection from the department and had filed requisition under the Right to Information Act. 5. Details extracted supra, makes it abundantly clear that hearing of the appeals has been adjourned to several dates, only on the request of the appellant, despite clear indication by the Tribunal that no further adjournments would be granted. Having regard to the above, this court is not inclined to accept the contention that the appellant, has been denied an opportunity and thus there was violation of principles of natural justice, in passing an ex-parte order. In light of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of ten years from the initial assessment is contemplated. It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business. Once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it notionally. A fiction created in sub-section does not contemplates to bring set off amount notionally. The fiction is created only for the limited purpose and the same cannot be extended beyond the purpose for which it is created. 19. In the present cases, there is no dispute that losses incurred by the assessee were already set off and adjusted against the profits of the earlier years. During the relevant assessment year, the assessee exercised the option under Section 80-IA(2). In Tax Case Nos.909 of 2009 as well as 940 of 2009, the assessment year was 2005-06 and in Tax Case No.918 of 2008 the assessment year was 2004-05. During the relevant period, there were no unabsorbed depreciation or loss of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for the purpose of computing permissible deduction under section 80-I for the new industrial undertaking was not required in the present case. Accordingly, this appeal fails and is hereby dismissed with no order as to costs. 20. From a reading of the above, the Rajasthan High Court held that it is not at all required that losses or other deductions which have already been set off against the income of the previous year should be reopened again for computation of current income under Section 80-I for the purpose of computing admissible deductions thereunder. We also agree with the same. We see no reason to take a different view. 21. The standing counsel appearing for the Revenue is unable to bring to our notice any relevant material or any compelling reason or any contra judgment of other courts to take a different view. He only relied heavily on the Memorandum explaining the provisions in the Finance (No.2) Bill, 1980, [1980] 123 ITR (St.) 154 to support this case and the same reads as follows: Clause 30(iii). In computing the quantum of 'tax holiday' profits in all cases, taxable income derived from the new industrial units, etc., will be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
