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TMI Blog2019 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted substantial relief to the assessee. Aggrieved by the order of Ld.CIT(A), Revenue is now in appeal before us and has raised the following grounds : "1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in allowing the claim of the assessee for a deduction of Rs. 17,69,56,668/- u/s 80IA(4) of the Income Tax Act, 1961. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in treating the windmills set up at different place in different year as separate undertaking and that such windmill do not constitute as single business undertaking for the purpose of deduction u/s 80IA of the I.T. Act. 3. On the facts and circumstances of the case, the Ld. CIT(A) has erred in allowing the deduction u/s 80IA (4) of the I.T. Act by not appreciating that each phase of wind mills was to be treated as a separate undertaking eligible for deduction u/s 80IA and the deduction u/s 80IA(4) should have been considered independently for each phases and not on consolidated basis." 3. All the grounds being inter-connected are considered together. 4. During the course of assessment proceedings, AO noticed that assessee had claimed deduction of Rs. 21,89,75,217/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the appellant on its consolidated income/loss from the business of windmills. 9.5 I find that this issue was considered by the Pune bench of the ITAT in the case of M/s. J-Sons Foundry Pvt. Ltd Sangli in its decision dated 30/01.2013. The relevant part of the tribunal's order is reproduced below: "15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations i.e. in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses. Though the first wind mill was erected and commissioned in the AY. 2002-03, there were consistent losses up to the AY. 2007-oB and assessee did not opt for claiming the deduction u/s 80IA(2) of the Act. So far as AY. 200B-09 is concerned, assessee opted for claiming the deduction u/s 80IA(2) treating the said assessment year (A.Y.) as an initial assessment year as there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-11) by holding as under: "18. In Ground No.4(b), the appellant's grievance is that it has two undertakings at Sangli and Dhule but the Assessing Officer has treated the same as one on the basis that eligible business is the same. This action of the Assessing Officer cannot be approved in view of the fact that deduction is allowed to the undertaking carrying out eligible business. Therefore, deduction has to be calculated for the each undertaking. 19. From the facts of the case, it is very clear that windmills are situated at two different locations at Sangli and Dhule. Therefore, unabsorbed loss/business of Dhule unit cannot be set off against profit of Sangli unit. Therefore, The Assessing Officer is directed to calculate deduction u/s.80(IA)(4)(iv)(a) of Sangli unit on standalone basis as per provisions of sec.80IA (5) of the I. T. Act. Accordingly, Ground No. 4(a) & 4(b) are allowed." 9.7 Respectfully following the decision of the jurisdictional ITAT, the grounds of appeal 2-5 are allowed in favor of the appellant. The deduction u/s 80IA should be allowed undertaking wise and not on a consolidated basis." 6.3.1 Respectfully following the decisions of the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d vice versa vide consolidated order dated 30.01.2013 for A.Y.2007-08 and 2008-09 he submitted that the Tribunal in the said decision held that each windmill is to be considerate as a separate undertaking. 56. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). 57. After hearing both the sides, we find the Coordinate Bench of the Tribunal in the case of J. Sons Foundry Pvt. Ltd. (supra) while dismissing the grounds raised by the Revenue on this issue has observed as under : "15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations i.e. in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses. Though the first wind mill was erected and commissioned in the A.Y. 2002-03, there were consistent losses up to the A.Y. 2007-08 and assessee did not opt for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate Bench of the Tribunal cited (supra.) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.80IA and therefore deduction u/s.80IA(4) should have been computed independently for each phase and not on consolidated basis. The ground raised by the assessee on this issue is accordingly allowed." 7. Considering the above facts, it is evident that the Tribunal relied on the decision of Coordinate Bench of the Tribunal in the case of J-Sons Foundry Pvt. Ltd Vs. DCIT (supra.) for A.Yrs. 2007-08 and 2008-09 order dated 30.01.2013 while granting relief to the assessee in appeal for the A.Yrs. 2007-08 to 2010-11. It is now a settled legal proposition that "every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profit of another unit engaged in the same business for the purpose of computing the deduction u/s 80IA." Therefore, we are of the opinion that order of the CIT(A) on this issue is fair and reasonable and it does not call for any interference. Accordingly, ground No. 2 raised by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reported in 340 ITR 477. As such, Ld. DR could not bring any contrary decision on the issue under consideration. Thus, the initial assessment year constitutes the assessment year in which the deduction u/s.80IA of the Act is first claimed by the assessee after exercising his option as per the provisions of Section 80IA(2) of the Act. Therefore, we are of the opinion that the relief granted by the CIT(A) on this issue does not require any interference. Accordingly, ground No.3 raised by the Revenue is dismissed. 7. Before us, Revenue has not pointed out any distinguishing feature in the facts of the present case and that of assessee's own case in A.Ys. 2011-12 and 2012-13 in ITA Nos.1382 & 1383/PUN/2015 order dt.16.10.2017 (supra) nor has placed any material on record to demonstrate that the decision of Pune Tribunal in assessee's own case in A.Ys. 2011-12 and 2012-13 which has been relied upon by Ld.CIT(A) has been set aside / overturned or stayed by the Higher Judicial Forum. In view of the aforesaid facts, we find no reason to interfere with the order of Ld.CIT(A) and thus the grounds of Revenue are dismissed. 8. In the result the appeal of Revenue is dismissed. Order pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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