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TMI Blog2016 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 income of the assessee, the Revenue cannot rework the set off amount and bring it notionally. Fiction created in sub-section does not contemplate to bring set off amount notionally. Fiction is created only for the limited purpose and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue are found to have been filed late by one day. The Assessing Officer has filed affidavit for condonation of delay. By pleading the reasons stated in the affidavit, the ld. DR has requested for condoning the delay and to admit the appeal for hearing. The ld. Counsel for the assessee has not seriously object to the submissions of the ld. DR. Thus, we condone the delay of one day in filing both the appeals and admit the appeals for hearing. 3. The first common ground raised in the appeals of the Revenue is with regard to deduction under section 80IA of the Income Tax Act [ Act in short]. The assessee is engaged in the business of manufacture and export of textiles and wind mill power generation. The assessee has filed its return declari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years.] (2) The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any ten consecutive assessment years out of fifteen years beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. From reading of sub-s (1), it is clear that it provides that where the gross total income of an assessee includes any profits and gains derived by an undertaking for an enterprise from any business referred to in sub-s(4) i.e. referred to as the eligible business, there shall, in accordance with and subject to the provisions of the section, be allowed, in computing the total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d every subsequent assessment year. From reading the above, it is clear that the eligible business were the only source of income during the previous year relevant to 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o allow the claim of the assessee on carbon credit as capital receipt if not under 80IA of the Act. 8. On being aggrieved, the Revenue is in appeal before the Tribunal for both the assessment years and the ld. DR has relied on the decision of the Cochin Bench of the Tribunal in the case of Apollo Tyres Ltd. v. ACIT in I.T.A. No. 616/Coch/2011 dated 20.12.2013 9. On the other hand, the ld. Counsel for the assessee has relied on the decision of the Coordinate Bench of the Tribunal in the case of My Home Power Ltd. v. DCIT 21 ITR (Trib) 186 (Hyderabad) and also the decision of the Hon ble High Court of Andhra Pradesh in the case of CIT v. My Home Power Ltd. (2014) 365 ITR 82. 10. We have heard both sides, perused the materials on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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