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TMI Blog2016 (5) TMI 1476X X X X Extracts X X X X X X X X Extracts X X X X ..... ear when Jojobera 67.5 MW power generating unit started generating power. We also hold that the notionally brought forward losses/ depreciation of the Jojobera 67.5 MW power generating unit for the period from the assessment year 1997-98 to 2001-02 which are already set off against the other business income in earlier years and set-off being allowed by the Revenue shall not be adjusted from the profit so computed by the assessee company with respect to Jojobera 67.5MW power generating unit for the assessment year 2002-03 for the purposes of computing deduction u/s.80IA of the Act. Since, we have adjudicated this issue on merit in favour of the assessee company based on detailed discussions and reasoning as set out above, the grounds raised by the assessee company challenging the reopening of the assessment u/s 147/148 has become academic and infructuous and hence we refrain from deciding the same and the questions raised by the assessee company in the grounds of appeal are kept open. X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned assessment year 2002-03 as the 'initial assessment year', although the plant was installed in the assessment year 1997-98. As per the provisions of section 80IA(5) the profits and gains of sub-section (1) shall for the purpose of determining the quantum of deduction u/s. 80IA for the assessment year immediately succeeding initial assessment year or any subsequent assessment year be computed as if such eligible business were the only source of income of the tax-payer during the previous year relevant to the 'initial assessment year' and to every subsequent assessment years. Thus as per the AO, in view of the above provisions of law , the brought forward unabsorbed depreciation/losses of the unit Jojobera 67.5MW pertaining to earlier years should have been set off against the profit of the current year to compute deduction u/s 80IA of the Act. Since , there was omission to set off the brought forward losses while computing deduction u/s 80IA of the Act, the case was reopened u/s 147 of the Act by issue of notice u/s 148 of the Act and the assessee company responded vide letter dated 22nd June, 2005 asking for the reasons for reopening which was provided to the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s out of twelve/twenty years was available in respect of operation and maintenance of infrastructure facility under the earlier section 80IA. The "initial assessment year" in such a case was defined to mean the assessment year specified at the option of the assessee to be the initial year, not falling beyond the twelfth assessment year starting from the previous year in which the enterprise begins operating and maintaining the infrastructure facility. On the same analogy, the "initial assessment year" under the new sec.80IA for an undertaking engaged in generation/distribution of power would be the assessment year specified at the option of the assessee to be the initial year, not falling beyond the fifteenth assessment year starting from the previous year in which the enterprise begins to generate / distribute power. This view is further supported by paras 8 and 9 of Form 10CCB which is the form of audit report for claiming deduction u/s.80IA which specifies the date of commencement of operation by the undertaking and initial assessment year from when deduction is being claimed." It was submitted by the assessee company that from perusal of the above submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee comapny. The assessee company submitted that the total taxable income of the assessee company includes Jojobera 67.5 MW taxable income of ₹ 20,70,84,187/- which amount has been claimed by the assessee company as deduction u/s. 80IA of the Act and since there is no brought forward loss/unabsorbed depreciation set off against the total income , to arrive at final taxable total income, no adjustment has been made to the claim u/s 80IA of the Act for the Jojobera 67.5MW power undertaking's taxable income. The contention of the assessee company was rejected by the A.O. as in the opinion of the A.O. , Section 80IA(5) of the Act clearly stipulates the quantum of deduction u/s 80IA for the assessment year immediately succeeding the 'initial assessment year' or any subsequent assessment year , the profit and gains from the eligible business shall be computed as if such eligible business were the only source of income of the assessee company during the financial year relevant to the 'initial assessment year' and to every subsequent assessment year up-to and including the assessment year up-to which the determination is made. It was observed by the A.O. that the assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,187 Balance loss (-)22,67,07,251 Thus it was observed by the AO, it can be seen from the above that from the assessment year 1997-98 onwards the assessee company had unabsorbed depreciation in respect of Jojobera 67.5 MW power generating unit for the assessment year 1997-98 and 1998-99. However, after set off of unabsorbed depreciation of earlier years against the income of the assessment years 1999-00 to 2001-02, there is still unabsorbed depreciation of ₹ 43,37,91,438/- which has to be set off against the income for the assessment year 2002-03 for working out the deduction u/s 80IA of the Act. Since there is no eligible profit, the assessee company is not eligible for any deduction u/s 80IA of the Act although the impugned assessment year 2002-03 has been considered as the 'initial assessment year' for deduction u/s 80IA of the Act, unabsorbed depreciation of the earlier years have to be set off against the income of this 'initial assessment year' in respect of this Jejobera 67.5MW power generating unit. It was held by the AO that in view of the provisions of Section 80IA(5) of the Act which lays down that the profits and gains of eligible business shall be computed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. No other adjustment was made despite the disclosure in the tax audit report. The A.O. reopened the assessment and passed reassessment order dated 25th October, 2006 u/s 143(3) r.ws. 147 of the Act and the deduction granted earlier u/s 80IA of the Act in respect of Jojobera 67.5 MW power generating unit had been nullified by re-computing the taxable income of the said unit as a separate entity right from the date of commencement of power generation by the Jejobera 67.5MW unit . Accordingly the brought forward depreciation of the unit on a standalone basis from the date of its commencement has been set off to arrive at the taxable income of that unit qualifying for deduction u/s 80IA of the Act by the AO in re-assessment proceedings. It was submitted that no adjustment has been made by the assessee for the unabsorbed depreciation relating to earlier assessment years which has been set off against the other business income of the assessee company in earlier years, has been indicated in the tax audit report. Despite this disclosure, no adjustment was made for brought forward unabsorbed depreciation for determining deduction u/s 80IA of the Act at the time of assessment u/s 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and the reliance placed by the assessee company on various case laws has been misplaced. It was also observed by the ld. CIT(A) that the issue of application of 80IA(5) of the Act has never been examined by the A.O. though there is disclosure on the part of the assessee company, therefore, the fact of the present case are different than the case relied upon by the assessee company, therefore reliance placed by the assessee company is misplaced and not applicable in the present case. It was held by the ld. CIT(A) that in the reasons recorded, satisfaction of the A.O. has been arrived. In the reasons recorded for reopening of the assessment, a copy of the same has also been supplied to the assessee company , therefore, reopening of assessment was held to be valid by the ld. CIT(A). On merit, the assessee company submitted before the ld. CIT(A) that the A.O. has reopened the assessment u/s 147 of the Act and allowed deduction u/s 80IA of the Act on the taxable income after setting off the brought forward depreciation of the units eligible for deduction u/s 80IA of the Act. It was submitted that the A.O. erred in not appreciating the fact that such depreciation has already been set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company. The assessee company relied upon the decision of Hon'ble Rajasthan High Court in the case of CIT v. Mewar Oil and General Mills Ltd., (2004)186 CTR 141(Raj.) to content that the Hon'ble 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 u/s 80-I for the purpose of computing admissible deductions there under. The assessee company relied upon the decision of Chennai Tribunal in the case of Mohan Breweries & Distilleries Limited v. ACIT in ITA no. 1077 of 2007, whereby the Chennai Tribunal held that the provisions of Section 80IA(5) of the Act treating the undertaking as a sole source of income could not be applied to a year prior to the year in which the tax-payer opted to claim relief u/s 80IA of the Act for the first time. Further , the depreciation and carry forward losses of the unit cannot notionally be carried forward and set off against the income from the year in which the tax-payer started claiming deduction u/s 80IA of the Act. The ld. CIT(A) held that the unit had incurred losses amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Circular No. 1 of 2016 dated 15th February, 2016 issued by CBDT which is binding on Revenue which is reproduced below: "Circular No. 1 /2016 Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes North Block, New Delhi, the 15th February, 2016 Subject: Clarification of the term 'initial assessment year' in section 80lA (5) of the Income-tax Act, 1961. Section 80IA of the Income-tax Act, 1961 ('Act'), as substituted by the Finance Act, 1999 with effect from 01.04.2000, provides for deduction of an amount equal to 100% of the profits and gains derived by an undertaking or enterprise from an eligible business (as referred to in sub-section (4) of that section) in accordance with the prescribed provisions. Sub-section (2) of section 80IA further provides that the aforesaid deduction can be claimed by the assessee, at his option, for any ten consecutive assessment years out of fifteen years (twenty years in certain cases) beginning from the year in which the undertaking commences operation, begins development or starts providing services etc. as stipulated therein. Sub-section (5) of section 80IA further prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, directed to allow deduction u/s 80IA in accordance with this clarification and after being satisfied that all the prescribed conditions applicable in a particular case are duly satisfied. Pending litigation on allowability of deduction u s 80 IA shall also not be pursued to the extent it relates to interpreting 'initial assessment year' as mentioned in sub-section (5) of that section for which the Standing Counsels/D.R.s be suitably instructed. The above be brought to the notice of all Assessing Officers concerned. Sd/- (Deepshikha Sharma) Director to the Government of India (F.No.200/31/2015-ITA-I) Copy to: 1. Chairman and all Members of CBDT 2. PS/OSD to Secretary (Revenue) 3. O/o Pr. Director General of Income Tax(Systems) with request for uploading on official website in public domain 4. All Pr. Chief-Commissioners/Directors-General of Income-tax 5. All Officers and Technical Sections of CBDT 6. ITCC Division of CBDT (3 copies) 7. Addl./Jt. CIT Database Cell for uploading on IRS Officers website 8. ADG(PR,PP & OL) with request to post a tweet on official handle of the Department. 9. Guard File (Deepshikha Sharma) Director to the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company to the tune of ₹ 20,70,84,187/- filed in the return of income filed with the revenue. The ld Senior Counsel submitted that there was change of opinion of the A.O. as no new tangible material has come into the possession of the AO which could have live link and nexus with the formation of an belief of the AO that the income has escaped assessment , and the reopening has been done merely on the basis of audit objection while in the original assessment the A.O. has applied his mind while passing the order u/s 143(3) of the Act and it is clearly a case of change of opinion. It was also contended that now the CBDT has come with a Circular No. 1 of 2016 whereby the CBDT has clarified that the assessee company has option to choose the 'initial assessment year'. The assessee company has commenced generation of power in the assessment year 1997-98, while the assessee company has chosen the impugned assessment year 2002-03 as the 'initial assessment year' for claiming the deduction u/s 80IA of the Act. The ld. Senior Counsel submitted that the unit Jojobera 67.5 MW power generating unit is the independent source of income of the assessee company. There is no unabsorbed deprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its' to that effect were duly filed by the assessee company vide affidavit dated 19-11-2014 of Mr P D Suvarna, employee of the assessee company who appeared before the AO for representing the assessee company during the re-assessment proceedings and the affidavit dated 10-02-2015 of Sh. Anil Sardana , Managing Director of the assessee company and both the affidavits are filed before the Tribunal which are placed in the file . The ld. Senior Counsel submitted that no new tangible material has been brought on record by the Revenue to substantiate that any income has escaped assessment. The assessee company challenged the change of opinion before the ld. CIT(A) but the specific issue of non supplying of the reasons for the re-opening of the assessment was not raised before the ld CIT(A). The assessee company relied upon the decision of the Tribunal in the case of Tata Communications Ltd. v. Addl. CIT in ITA No. 3417/M/2009 for the assessment year 2001-02 order dated 29.1.2016. The assessee company also relied on the decision of Hon'ble Bombay High Court in the case of CIT v. Videsh Sanchar Nigam Ltd. [2012] 340 ITR 66 (Bom) to contend that it is not sufficient on the part of the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997-98. The said undertaking went into losses till the assessment year 2001-02 and the losses/depreciation of the said undertaking were adjusted and set off against the other business income in the earlier years , which set off was allowed by the Revenue. Thus, in nutshell, there was no carry forward of unabsorbed losses/depreciation of the 67.5 MW Jojobera power project undertaking. With effect from the assessment year 2001-02, the said 67.5 MW Jojobera power project undertaking is directly owned and managed by the assessee company as earlier it was owned by Tata Electric (AOP) whereby the assessee company had 50% shares, while rest of the shares were held by Andhra Valley (30%) and Tata Hydro (20%). Section 80IA of the Act provides that for ten consecutive assessment years out of fifteen years beginning from the year in which generation of power commenced, deduction u/s 80IA is available on the 100% profit of the undertaking derived from generation of power. The assessee company has chosen the assessment year 2002-03 as the 'initial assessment year' for the purposes of claiming deduction u/s 80IA of the Act although the 67.5 MW Jojobera power generation undertaking commenced gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent it relates to interpreting 'initial assessment year' as mentioned in sub-section (5) of that section. In view of the said Circular, the claim of the Revenue is now not sustainable as the circular is binding on Revenue. The relevant CBDT circular no 1/2016 (F.No.200/31/2015-ITA-1)dated 15-2-2006 is reproduced below Circular No. 1/2016 issued by the CBDT is binding on the Revenue and the same is reproduced below : "Circular No. 1 /2016 Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes North Block, New Delhi, the 15th February, 2016 Section 80IA of the Income-tax Act, 1961 ('Act'), as substituted by the Finance Act, 1999 with effect from 01.04.2000, provides for deduction of an amount equal to 100% of the profits and gains derived by an undertaking or enterprise from an eligible business (as referred to in sub-section (4) of that section) in accordance with the prescribed provisions. Sub-section (2) of section 80IA further provides that the aforesaid deduction can be claimed by the assessee, at his option, for any ten consecutive assessment years out of fifteen years (twenty years in certain cases) beginnin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction should not transgress the prescribed slab of fifteen or twenty years, as the case may be and the period of claim should be availed in continuity. The Assessing Officers are, therefore, directed to allow deduction u/s 80IA in accordance with this clarification and after being satisfied that all the prescribed conditions applicable in a particular case are duly satisfied. Pending litigation on allowability of deduction u s 80 IA shall also not be pursued to the extent it relates to interpreting 'initial assessment year' as mentioned in sub-section (5) of that section for which the Standing Counsels/D.R.s be suitably instructed. The above be brought to the notice of all Assessing Officers concerned. Sd/- (Deepshikha Sharma) Director to the Government of India (F.No.200/31/2015-ITA-I) Copy to: 1. Chairman and all Members of CBDT 2. PS/OSD to Secretary (Revenue) 3. O/o Pr. Director General of Income Tax(Systems) with request for uploading on official website in public domain 4. All Pr. Chief-Commissioners/Directors-General of Income-tax 5. All Officers and Technical Sections of CBDT 6. ITCC Division of CBDT (3 copies) 7. Addl./Jt. CIT Database Cell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee has the option to choose the first/initial assessment year of claim for deduction under Section 80IA ?" 2. Heard Mr.T.R.Senthilkumar, learned Standing Counsel for the Department. Mr.M.P.Senthilkumar, learned counsel takes notice for the respondent. 3. Even according to the learned Standing Counsel for the Department, this Court has consistently followed the decision in M/s.Velayudhaswamy Spinning Mills (340 ITR 477), despite the Honourable Supreme Court ordering notice. 4. Interestingly, on the basis of the decision in Velayudhaswamy Spinning Mills, the Central Board of Direct Taxes has issued Circular No.1/ 2016 dated 15.2.2016. It will be useful to extract the circular in entirety, which is as follows: "Circular No. 1 /2016 Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes North Block, New Delhi, the 15th February, 2016 Subject: Clarification of the term 'initial assessment year' in Section 80IA(5) of the Income Tax Act, 1961 Section 801A of the Income-tax Act, 1961 ('Act'), as substituted by Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified that once such initial assessment year has been opted for by the assessee, he shall be entitled to claim deduction u/s 801A for ten consecutive years beginning from the year in respect of which he has exercised such option subject to the fulfillment of conditions prescribed in the section. Hence, the term 'initial assessment year' would mean the first year opted for by the assessee for claiming deduction u/s 801A. However, the total number of years for claiming deduction should not transgress the prescribed slab of fifteen or twenty years, as the case may be and the period of claim should be availed in continuity. The Assessing Officers are, therefore, directed to allow deduction u/s 801A in accordance with this clarification and after being satisfied that all the prescribed conditions applicable in a particular case are duly satisfied. Pending litigation on allowability of deduction u/s 80 IA shall also not be pursued to the extent it relates to interpreting 'initial assessment year' as mentioned in SubSection (5) of that section for which the Standing Counsel/DRs be suitably instructed. above be brought to the notice of all Assessing Officers concerned." 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been setting off the loss against the income of the company for the earlier years. During the assessment year, the assessee exercised the option claim of deduction under section 80-IA of the Act. But the Assessing Officer denied the exemption on the finding that loss or depreciation already allowed and set off against other sources of the income of the assessee has to be notionally carried forward and set off against the current year's income from the units for which the assessee is claiming deduction under section 80-IA. There is no dispute that during the year, there is a profit. Therefore, the assessee claimed deduction under section 80-IA and the Revenue has no authority to notionally bring forward the unabsorbed depreciation and loss of the earlier year which has been already set off as against the current year profit from the unit. 11. It is pertinent to note that the learned senior counsel appearing for the assessee invited the attention of this court to an unreported judgment of this court dated December 23, 2009, in Tax Case (Appeal) No. 298 of 2004 wherein, this court considered the similar substantial question of law, which reads as follows : "Whether the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income in respect of the assessment year relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles or things, or to operate 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 assessment year being hereafter in this section referred to as the initial assessment year) and each of the seven assessment years immediately succeeding the initial assessment year : . . . (6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under subsection (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section included in this Chapter under the heading 'C-Deductions in respect of certain incomes' in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." 15. A mere reading of the above provision makes it clear that any income of the nature specified in that section, which is included in the gross total income of the assessee for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in the gross total income. Section 80AB defines "gross total income" which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops an industrial park or develops a special economic zone referred to in clause (iii) of sub-section (4) or generates power or commences transmission or distribution or power or undertakes substantial renovation and modernisation of the existing transmission or distribution lines. (4) This section applies to- (i) any enterprise carrying on the business of (i) developing, or (ii) operating and maintaining, or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely :- (a)it is owned by a company registered in India or by a consortium of such companies (or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act) ; (b)it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing, or (ii) operating and maintaining, or (iii)developing, operating and maintaining a new infrastructure facility ; (c)it has started or starts operating and mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantum of deduction ; (3)For the assessment year immediately succeeding the initial assessment year; (4)It is a deeming provision ; (5)Fiction created that the eligible business is the only source of income ; and (6)During the previous year relevant to the initial assessment year and every subsequent assessment year." 18. From a reading of the above, it is clear that the eligible business were the only source of income, during the previous year relevant to the initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were already set off against the income of the assessee. Looking forward to a 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 inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was required to be set off against the income of the current year. 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. In view thereof, we are of the opinion that the Tribunal has not erred in holding that there was no rectification possible under section 80-I in the present case, albeit, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year is 1999- 2000. From the records it is clear that the assessee claimed deduction under section 80-IA for the first time during the assessment year 2004-05. The Assessing Officer accepted the same and there is no dispute. The deduction under section 80-IA is rejected only on the ground that there was no positive income and it was held by the Assessing Officer that the eligible deduction under section 80-IA after setting off of the loss worked out to nil. Before the Assessing Officer, there was no dispute regarding the claim during the year. Aggrieved by that order, the assessee filed an appeal before the Commissioner of Income-tax (Appeals). Before the appellate authorities also there is no dispute regarding the claim during the year. Line 3 in paragraph 2 of the order reads as follows : "The appellant has claimed deduction under section 80-IA for the first time in the current year, namely, the assessment year 2004-05." 26. The Revenue has not filed an appeal against the order of the Commissioner of Income-tax (Appeals). It reached finality. Aggrieved by the order of the Commissioner of Income-tax (Appeals) regarding the quantum of deduction, the assessee filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to the findings of the lower authorities. The lower authorities categorically observed that the first year in which deduction was claimed was 2004-05. We have already narrated in the facts of the case that if the facts stated by the Assessing Officer or the Commissioner of Income-tax (Appeals) are wrong the Departmental representative is required to adduce the evidence as per rules 10 and 29 of the Income-tax (Appellate Tribunal) Rules, 1963, which read as follows : '10. Filing of affidavits.-Where a fact which cannot be borne out by, or is contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit. 29. Production of additional evidence before the Tribunal.-The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner of Incometax (Appeals) and, therefore, the same cannot be raised in the assessee's appeal before the Tribunal. It is a question of fact. It is not a perverse order. We do not find any error or illegality in the order of the Tribunal warranting interference. The order of the Tribunal is in conformity with law. Under these circumstances, we also answer questions Nos. 1 and 3 in favour of the assessee and against the Revenue. The tax case filed by the Revenue is dismissed. 28. In fine, Tax Case (Appeal) Nos. 909 and 940 of 2009, all the questions answered in favour of the assessee and against the Revenue and, hence, these appeals are allowed. 29. Under these circumstances, we confirm the order of the Tribunal and answer all the questions in favour of the assessee and against the Revenue in Tax Case (Appeal) No. 918 of 2008 and dismiss the appeal." Thus keeping in view judgment of the Hon'ble Madras Court in the case of Velayudhaswamy Spinning Mills Private Limited v. ACIT(2012) 340 ITR477(Mad.) , judgment of Hon'ble Madras High Court in the case of CIT v. GRT Jewellers(India) (supra) , CBDT Circular No. 01/2016 dated 15-02-2016 , provisions of Section 80IA of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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