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TMI Blog2021 (5) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. This is not in Revenue s case that the said statutory provision carries any retrospective effect. We thus hold that both the lower authorities have erred in law and on facts in treating the assessee s carbon credits receipts as taxable income. The impugned addition is directed to be deleted therefore. Whether the impugned re-opening is liable to be sustained in the facts of the instant case or not? - Assessing Officer s sole re-opening reason recorded to this effect dt.30-03-2013 goes contrary to the tribunal s landmark decision in My Home Power Ltd., Vs. DCIT [ 2012 (11) TMI 288 - ITAT HYDERABAD] deciding the issue in assessee s favour as upheld in hon ble jurisdictional high court in CIT Vs. My Home Power Ltd.,[ 2014 (6) TMI 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond its control as per condonation petition/affidavit dt.19-06-2018. No rebuttal has come from the departmental side. The impugned delay is condoned therefore. 3. The assessee s pleadings in the instant appeal raises inter alia raises three folded substantive grievances i.e., validity of Section 147/148 proceedings followed by challenge the correctness of both the lower authorities action mainly carbon credits sales addition of ₹ 5,87,82,516/- and Section 43B disallowance of provisions of gratuity and leave encashment payments of ₹ 5,16,594/-; respectively made in the course of assessment and upheld in the CIT(A) s order. 4. Learned authorised representative reiterated the assessee s stand that both the lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from eligible business of assessee, though, assessee objected to the proposed disallowance', AO ultimately. disallowed the claim of deduction u/s. 80IA of ₹ 5,07,45,000 by excluding it from business income in the assessment order passed by him. Assessee challenged the decision of AO in appeal preferred before the CIT(A). The learned CIT(A) following the decision of the ITAT. Hyderabad Bench in case of M/s My Home Power Ltd. Vs. DCIT, 151 TTJ 616 deleted the addition by holding that the amount of ₹ 5,07,45,000 on sale of carbon credits is in the nature of capital receipt, hence, is not taxable. 4. We have heard both the parties and perused the orders of revenue authorities as well as other material on record. At the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the facts of the instant case or not. We repeat as per our discussion in the preceding paragraphs that the Assessing Officer s sole re-opening reason recorded to this effect dt.30-03-2013 goes contrary to the tribunal s landmark decision dt.02-11-2012 in My Home Power Ltd., Vs. DCIT (2012) [27 taxmann.com 27] Hyderabad tribunal s deciding the issue in assessee s favour as upheld in hon ble jurisdictional high court in CIT Vs. My Home Power Ltd., (2014) [365 ITR 82] AP. The assessee s case in the light of hon ble apex court s landmark decision in GKN Driveshafts (India) Ltd., Vs. ITO, [(2003) 259 ITR 101 (SC)], that all the facts invalidate the impugned re-opening as well since their lordships have made it clear that there are twin stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectness of the reasons recorded for reopening the assessment- one at the stage of dealing with the objections of the assessee prior to proceeding with the reassessment proceedings, and the other at the point of time when, during the reassessment proceedings, the Assessing Officer has to take a call on additions to be made in respect of these reasons. That is where there is a paradigm shift in the scheme of things post GKN Drivershaft decision. In a situation in which, during the reassessment proceedings, the Assessing Officer finds these reasons to be so incorrect that he concludes that no income has escaped the assessment and the additions on that count are unwarranted, the same should have been the position at the stage of adjudicating on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening was not an issue before Their Lordships. The correctness of the reasons for reopening was not, directly or indirectly, in challenge. 19. As is evident from the discussions earlier in this order, here is a case in which the very reasons on account of which the CIT(A) has deleted the quantum additions were also good enough to hold that the initiation of reassessment proceedings is bad in law and yet the CIT(A) was fighting shy of the logical conclusions thereto and natural corollaries to these findings. It is also important to bear in mind the fact that the relief so granted by the CIT(A), on the basis of which the additions in respect of the reasons recorded for reopening the assessment were deleted and which were, in our consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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