9911796707
TMI Blog2023 (10) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the CIT(A) in the impugned order has rejected the claim of assessee by merely placing reliance on the order of his predecessor in AY 2011-12. The Co-ordinate Bench [ 2023 (4) TMI 1258 - ITAT SURAT] has reversed the findings of CIT(A). Taking into consideration the documents furnished by the assessee, we are of the view that the Incinerator Project-II is a separate undertaking eligible for deduction u/s 80IA(4) of the Act starting from AY 2012-13. The assessee succeeds on ground no. 3 of appeal. Disallowance made u/s 14A r.w.r. 8D under normal provision as well as u/s 115JB - It is an admitted position that in the period relevant to the assessment year 2012-13, the assessee has not earned any exempt income. It is no more res-integra that where the assessee has not earned any income exempt from tax, no disallowance u/s 14A of the Act is to be made. Hence, ground no. 4 of appeal is allowed. Disallowance of provision for post closure care expenditure under normal provision and u/s 115JB - In AY 2007-08, the Tribunal in appeal of the assessee [ 2017 (2) TMI 1493 - ITAT AHMEDABAD] deleted the disallowance placing reliance on earlier order of Tribunal in assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tim of assessment years. ITA No.586/Mum/2017 (AY.2012-13) 2. The assessee in appeal has raised following grounds: 1. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) [ CIT(A) ] erred in upholding the action of the Assessing Officer CAO) in holding that Landfill Project 1 and Landfill Project 2 are not separate undertakings and hence not eligible for deduction under section 80IA(4) of the Act separately. 2. On the facts and in the circumstances of the case and in law, the CIT (A) erred in holding that the deduction in respect of Landfill Project 2 which started its operations from 11 March 2007 ought to be allowed from assessment year 2002-03 to 2011-12 instead of assessment year 2008-09 to 2017-18 being 10 years from the date on which the undertaking commenced its operations. 3. On the facts and in the circumstances of the case and in law, the CIT(A) erred in holding that Incinerator Project 2 is not a separate undertaking and not eligible for deduction under section 80IA of the Act separately despite the fact that the said undertaking had started its operation from AY 2012-13. 4. On the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case submitted that, the assessee is engaged in management and handling of hazardous toxic waste generated by various industries of District Bharuch. For treatment and disposed of highly toxic solid waste, Gujrat Industrial Development Corporation ( GIDC ) has allotted centralised secured landfill facility to the assessee. The assessee commenced its business activity in April, 1998, for this purpose land bearing plot no. 9701 to 9716 ad measuring 59040 sq. mts. was allotted to the assessee by GIDC (hereinafter referred to as Landfill-I ). Thereafter, in March 2007, another set of plots bearing no. 7905/E to 7905/H, 7924 to 7927, 9401 to 9412 and 9501 to 9506 total having area of 1,36,402 sq. mts. was allotted to the assessee (hereinafter referred to as Landfill-II ). The assessee claimed deduction u/s 80IA of the Income Tax Act, 1961 (hereinafter referred to as the Act ) in respect of the separate Landfills, that is Landfill-I and Landfill-II as independent and separate undertakings. For Landfill-I, the assessee stated claiming deduction u/s 80IA of the Act from AY 2002-03 and for Landfill-II, the assessee claimed deduction u/s 80IA of the Act for the first time in AY 2008- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. 4.2 In respect of ground no. 4 of appeal, the ld. AR submitted that the AO made disallowance u/s 14A read with Rule 8D(2)(3) of the Act Rs. 1,89,103/- under normal provision as well as u/s 115JB of the Act. During the period relevant to assessment year under appeal, the assessee has not earned any dividend income/income exempt from tax. Hence, no disallowance u/s 14A of the Act is warranted. In support of his submissions, the ld. AR placed reliance on the following decisions: i. PCIT vs. Red Chillies Entertainment (P.) Ltd., 116 taxmann.com 77 (Bom.); ii. PCIT vs. Ballarpur Industries Limited in ITA No. 51 of 2016 decided by Hon ble Bombay High Court; iii. PCIT vs. McDonald s India Private Limited, 101 taxmann.com 86 (Delhi); iv. State Bank of Patiala, 99 taxmann.com 286 (SC); v. Vireet Investment (P.) Ltd. (2017), 165 ITD 27 (Del.) (SB) 4.3 In respect of ground no. 5 of appeal, the ld. AR submits that after the landfill pits are closed, the assessee has to incur expenditure on its maintenance viz: to manage sludge spillage, treatment of gases emanating from pit etc. For this purpose, the assessee has made a provision for post closure care expenditure Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the ld. Departmental Representative (DR) fairly admitted that the issues raised by the assessee in ground no. 1, 2, 5, and 6 of appeal were considered by the Tribunal in assessee s own case in preceding assessment years. 6. We have heard the submissions made by rival sides and have perused the orders of authorities below. The ground no. 1 to 3 of appeal are taken up together as they are interrelated. The assessee has claimed deduction u/s 80IA(4) of the Act in respect of different undertakings viz, Landfill-I, Landfill-II, Incinerator-I and Incinerator-II. The assessee is engaged in management and disposal of toxic waste discharged by various chemical industries in district Bharuch. For the disposal of toxic waste, the assessee has been allotted plots of land at different locations by GIDC. The assessee has separate sites for landfills. For Landfill-I, the assessee was allotted plot nos. 9701 to 9716 ad measuring 590404 sq. mts. The assessee commenced its activity on the said land in April, 1998. The assessee claimed deduction u/s 80IA(4) of the Act in respect of said site for the first time in AY 2002- 03. The assessee was allowed deduction u/s 80IA of the Act in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction under section 80IA for Land Fill Project-II, the ld. Senior Counsel for the assessee vehemently submitted that it is a separate undertaking. It was submitted that the assessee-company was allotted additional lands bearing Plot No.7905E to 7905H, 7924 to 7927, 9401 to 9412, 9501 to 9506 admeasuring 1,36,402 Sq. Mts. in Ankleshwar Estate by GIDC to create, execute and operate a Centralized Secured Land Fill Facility Project-II for the disposal of solid waste generated by the industries of Bharuch District. It was also brought to our notice that the assessee has also entered into a separate agreement dated 16th October 2012 with GIDC with effect from 12 March 2007. The assessee had commenced its Land Fill Project-II in FY 2006-2007 and claimed deduction under section 80IA of the Act from AY 2008-09 since the said unit is a separate infrastructure facility. These facts are not controverted by ld. SR DR for the revenue. Moreover, the Land Fill Project-II is set up on the separate land allotted by GIDC in Bharuch District, which was allotted to the assessee and separate agreement was entered with GIDC on 16th October 2012 with effect from 12.03.2007. We find that in appeal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the CIT(A) in the impugned order has rejected the claim of assessee by merely placing reliance on the order of his predecessor in AY 2011-12. The Co-ordinate Bench in ITA No.504/Ahd./2015 for AY 2011-12 vide order dated 24.04.2023 has reversed the findings of CIT(A). Taking into consideration the documents furnished by the assessee, we are of the view that the Incinerator Project-II is a separate undertaking eligible for deduction u/s 80IA(4) of the Act starting from AY 2012-13. The assessee succeeds on ground no. 3 of appeal. 8. In ground no. 4 of appeal, the assessee has assailed disallowance made u/s 14A read with Rule 8D under normal provision as well as u/s 115JB of the Act. It is an admitted position that in the period relevant to the assessment year 2012-13, the assessee has not earned any exempt income. It is no more res-integra that where the assessee has not earned any income exempt from tax, no disallowance u/s 14A of the Act is to be made. Hence, ground no. 4 of appeal is allowed. 9. In ground no. 5 of appeal, the assessee has assailed disallowance of provision for post closure care expenditure under normal provision and u/s 115JB of the Act. We find that di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed for statistical purpose. 11. In ground no. 7 and 8 of appeal, the assessee has made an alternate prayer to the ground no. 6 of appeal. Since, we have restored ground no. 6 of appeal to the AO. The ground no. 7 and 8 are also restored to AO. Thus, ground no. 7 and 8 are allowed for statistical purpose. 12. In ground no. 9 of appeal, the assessee has assailed charging of interest u/s 234C of the Act. Interest u/s 234C of the Act is consequential and mandatory. The AO is directed to re-examine the issue and charge interest u/s 234C of the Act on the returned income, in accordance with law. Ground no. 9 of appeal is thus allowed for statistical purpose. 13. In the result, appeal of the assessee is partly allowed. ITA No.400/Mum/2017 (AY.2012-13) 14. The Revenue in its appeal has assailed the findings of CIT(A) in allowing deduction u/s 80IA(4) of the Act to the assessee for Incinerator Project-I and II. The contention of the Revenue is that Incinerator Project-I and II are not new undertakings and only extension of the existing undertakings. The ld. DR submitted that the Department has not accepted the Tribunal order of the preceding years where it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
