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TMI Blog2023 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant craves leave to amend, modify, add or substitute the above grounds of appeal. 3. The 1st issue raised by the assessee in ground number 1 is that the learned CIT-A erred in denying the claim of deduction made by it under the provisions of section 80 IA(4) of the Act. 4. The necessary facts are that the assessee in the present case is a public limited company and claimed to be engaged in the activity of maintenance of infrastructure facility being solid waste management. As per the assessee, the profit from the impugned activity was eligible for deduction under section 80IA(4) of the Act effective from assessment year 2004-05 being maintenance of infrastructure facilities. The assessee company was established dated 20 January 1993 which has taken over the running business of partnership firm namely M/s Nemi Briquettes Industries from April 1993. The assessee right from the inception has been either claiming, in most of the assessment years, hundred percent depreciation or the benefit under section 80I or 80JJA of the Act in different assessment years subject to the availability of profit. 4.1 As per the assessee, it acquired plants and machinery in the earlier years but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r first-time in the assessment year 2004-05 which was allowed in the assessment framed under section 143(3) r.w.s. 147 of the Act. Thus, as per the learned AR the validity of the deduction under section 80-IA(4) of the Act in the subsequent year cannot be disputed. In support of his contention, the learned AR has vehemently relied on the several judicial pronouncements which are part of record. 10. On the other hand, the learned AR has filed written submissions dated 27- 02-2023, running from pages 1 to 12 wherein it was inter alia contended as under: 6. Row, before the Hon'ble ITAT the assessee has raised a totally new claim of i.e. setting up of a new industrial undertaking in the FY:2003-04 i.e. AY 2004-05. Though no claim for deduction U/s 80IA(4) was made in the relevant AY;2004-05, but from the subsequent AY i.e 2005-06. During the course of hearing on 21.02.2023 the Ld. AR of the f assessee claimed before the Hon'ble Tribunal that deduction u/s 801A(4) was allowed by, the department for AY:2004-05 is totally false and misplaced. The Ld AR had thus submitted that since its claim for deduction u/s 80IA was accepted and allowed for AY 2004-05, the claim for this year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed by it under section 80-IA of the Act after the initial assessment year on account of examination of preconditions. In holding so, we draw support and guidance from the judgement of Gujarat High Court in of Saurashtra Cement & Chemical Industries Ltd. Vs. CIT reported in 123 ITR 669 wherein it was held as under: 7. This takes us to the questions referred to us in the Income-tax Reference No. 239 of 1975 at the instance of the Revenue. We do not find any justifying reasons to interfere with the order of the Tribunal so far as both these questions are concerned. The Tribunal was perfectly justified in taking the view that if the relief of tax holiday was granted to the assessee-company for the assessment year 1968-69, the assessee was, therefore, entitled to continuance of that relief for the subsequent four years and the ITO would not be justified in refusing to continue the allowance for the assessment year under reference, i.e., 1969-70 without disturbing the relief for the initial year. At this stage, it should be noted that for purposes of entitlement to the relief under section 80J which is corresponding to section 15(c) of the 1922 Act, an industrial unit claiming such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred appeal before CIT(A) and CIT(A) enhanced the assessment of the assessee by withdrawing the deduction under section 80-IB of the Act allowed to the assessee by the Assessing Officer on the ground that the manufacture and sale of dehydrated onion flakers and potato chips is not manufacture or production of article or thing to be eligible to incentive deduction under section 80-IB of the Act. The assessee by filing chart narrating fact that all through assessment years 1993-94 to 2002-03 assessee had been allowed deduction under section 80-IB of the Act and therefore in the present year being assessment year 2003-04, the claim of the assessee is that it is eligible for deduction under section 80-IB of the Act and that the conditions to be eligible for deduction under section 80-IB have to be considered and decided in the first year of deduction and not in the subsequent years. We find that under the IT Act, each year is separate unit of assessment and taxable income as well as tax liability are to be determined keeping in view the facts prevailing in that year and the law as applicable. Further, res judicata is not applicable in an income-tax assessment is also an establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(1)(a) of the Act. Thereafter, the case of the assessee was selected under income escaping assessment under section 147 of the Act for calculating the tax liability under the provisions of section 115JB of the Act. However, the assessee during the assessment proceedings has also made submissions regarding the admissibility of his claim under the provisions of section 80IA of the Act. The relevant fact from the assessment order is extracted below: The assessee has no submitted any reply on the point of assessment of income to be taxed u/s. 115JB of the Act, it has submitted the reply on the points of admissibility of deduction u/s. 80IA/80IB and u/s. 80JJA of the Act. It means the assessee has accepted the tax ability of income proposed u/s. 115JB of the Act. Therefore, income of the assesse assessable in the books profit of Rs. 31,52,571/- is worked out from the accounts submitted along with the return of income. 11.5 Besides the above we have perused the paper book filed by the learned AR and find that the assessee has furnished form 10 CCB, a report of the chartered accountant for claiming the deduction under section 80IA of the Act for the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO during the assessment proceedings based on the audit report found that the assessee has given an advance of Rs.5 lakhs to the party namely Garima Communication towards the advertisement expenses without deducting the TDS. Therefore, the AO disallowed the same and added to the total income of the assessee. 14. On appeal the learned CIT (A) also confirmed the order of the AO. 15. Being aggrieved by the order of the learned CIT(A) the assessee is in appeal before us. 16. The learned AR before us contended that the assessee has never claimed the sum of Rs.5 lakhs as an expense and therefore the question of making the disallowance does not arise on account of non-deduction of TDS. 17. On the other hand, the learned DR vehemently supported the order of the authorities below. 18. We have heard the rival contentions of both the parties and perused the materials available on record. At the threshold, we note that the assessee has not claimed the deduction of Rs.5 lakhs shown as an advance to the party namely Garima Communication. Thus, in such a situation we are of the view that there is no question of making the disallowance of Rs.5 lakhs by adding to the total income of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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