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TMI Blog2017 (9) TMI 1652X X X X Extracts X X X X X X X X Extracts X X X X ..... the loss of a unit eligible u/s. 80IA with another unit eligible u/s. 80IA of the Act - Held that:- As relying on Jindal Aluminium Ltd. [2012 (11) TMI 507 - ITAT BANGALORE ]the AO is directed to compute the deduction u/s.80IA without making any adjustment of loss of one unit with the profit of another unit and allow the deduction accordingly on the profit derived from one eligible unit. - Decided against revenue - ITA No.1628/Kol /2014 - - - Dated:- 15-9-2017 - Shri N.V.Vasudevan, Judicial Member and Shri Waseem Ahmed, Accountant Member Appellant : Shri Goulean Halgshing, CIT-DR O R D E R PER Waseem Ahmed, Accountant Member:- This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-XIX, Kolkata dated 13.06.2014. Assessment was framed by ACIT, Range-12, Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 26.12.2008 for assessment year 2006-07. 2. None appeared for and on behalf of the assessee- respondent when its appeal was called out for hearing, nor any adjournment application stands received. At the very outset, it was observed by the Bench that the disposa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Hon'ble Supreme Court in the case of Goetze (India) Limited (supra) has made it clear that the appellant authority can entertain and allow the additional claim of the assessee. After considering the submission of the assessee Ld. CIT(A) granted relief to assessee by observing as under:- 4.3 The issue in this ground has been analysed after considering both the assessment order and the submission of the appellant for coming to a decision. I find that the AO disallowed the claim of the appellant since the claim u/s. 80CI was never incorporated in the original return or even at the time of revised return being filed. It was only at the assessment stage that the appellant brought to the notice of the AO that the omission to claim the deduction was due to inadvertence. The pertinent question in such a situation is whether the claim of the appellant at the assessment stage could be entertained or not which was not claimed earlier. As has been contended by the appellant in its submission that based on the various court decisions as narrated (supra), the appellate authority can entertain the claim of the appellant even if a claim is not made before the AO and that it can be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us is that assessee has claimed deduction u/s. 80IC of the Act by way of filing a letter to AO at the time of assessment proceedings but AO rejected the same on the ground that he cannot entertain the claim of deduction as the assessee failed to claim the same in its return of income. However, Ld. CIT(A) observed that the appellant authority are entitled to admit the claim of assessee which was not made in the income tax return. Now the limited issue before us for our adjudication arises so as to whether the assessee can make a fresh claim during the assessment proceedings which was not claimed in the return of income. On this issue, the law is fairly settled by the judgment of Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra), wherein it was held as under:- 4. The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set off the loss of power plant-2 with the profit of power plant-1 and allowed the deduction for the amount of profit for ₹4,07,79,893/- u/s 80IA of the Act. 11. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that deduction u/s. 80IA is to be allowed unite-wise without deducting the loss of other unit. The assessee in support of its claim has relied on the order of ITAT Bengaluru Bench in the case of Jindal Aluminium Ltd. vs. ACIT 26 taxmann.com 317. Ld. CIT(A) after considering the submissions of assessee has granted relief to assessee by observing as under:- 5.4 Going by the above ruling of the ITAT, the facts of which are squarely applicable in the appellant s case, the AO is directed to compute the deduction u/s.80IA without making any adjustment of loss of one unit with the profit of another unit and allow the deduction accordingly on the profit derived from one eligible unit. The Revenue, being aggrieved, is in appeal before us. 12. Before us Ld. DR heavily relied on the order of AO and prayed before the Bench to confirm the same. 13. Having heard Ld. DR and perused the material available on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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