NSL RENEWABLE POWER PRIVATE LIMITED,HYDERABAD vs. DY. COMMISSIONER OF INCOME TAX, CIRCLE-16(1), HYDERABAD

The learned Counsel for the assessee submitted that in the return of income filed by the assessee, deduction u/s 80IA of the Act in respect of their power generating unit aggregating to Rs.21,04,47,956/- was claimed as is evident from the tax audit report and form 10CCB filed along with the return of income. He submitted that there were 8 units eligible for deduction u/s 80IA and in respect of two units i.e. Bheema Samudram Unit-I & II, there was a loss and with regard to Kapatgudda Unit-VI(K) and Unit-V(T), Udumelpet, the income was set off against the loss relating to brought forward losses of earlier years. It is submitted that only units 1 to 4 at Jaglur had positive income which had been claimed as a deduction u/s 80IA of the Act and that the AO during the assessment proceedings has considered the issue and accepted the claim of deduction u/s 80IA of the Act. He submitted that vide the subsequent notice u/s 154 of the Act, the AO has proposed to amend/reduce the deduction claimed u/s 80IA of the Act to the tune of Rs.6,77,38,404/- after adjusting the loss of two units out of the 4 eligible units. The learned Counsel submitted that the assessee had 8 power generating units in different locations and during the year, six units earned profits and two units incurred losses and out of the six profit generating units, two units had brought forward losses of earlier years which were set off against the profits of respective units for the year and there is no profit eligible to be claimed u/s 80IA of the Act for these two units. The loss incurred by the other two units were carried forward to the next years and the assessee claimed deduction u/s 80IA of the Act in respect of profit generating units from the four. He submitted that the AO, without considering the above facts adjusted the losses of two units against profit generated by four

Further, the learned Counsel for the assessee submitted that the claim of deduction u/s 80IA of the Act was allowable in respect of each eligible unit without setting of losses of other eligible units. He submitted that u/s 80IA of the Act, the deduction has to be computed on a standalone basis and the loss from one eligible unit cannot be set off against the profits of another eligible unit. In support of this contention, he placed reliance upon the following case law: i) Punit Construction Co. vs. JCIT (2018) 92 Taxmann.com 28 (Mum.Trib). ii) Jindal Aluminium Ltd vs. ACIT (2012) 26n Taxmann.com 317 (Bang.Trib.) iii) Meera Cotton & Synthetic Mills (P) Ltd vs. ACIT (2009) 29 SOT 177 (Mum.Trib). iv) Sriram Properties (P) LTd vs. ACIT (2013) 36 Taxmann.com 398 (Chennai.Trib). v) CIT vs. Dewan Kraft Systems (P) Ltd (2008) 297 ITR 305 (Del. HC)

Therefore, he prayed that the AO has correctly allowed the claim of deduction u/s 80IA of the Act in the assessment order passed u/s 143(3) of the Act.

The learned Counsel for the assessee further submitted that the CIT (A)’s observation that the deduction u/s 80IA is eligible only to the extent of business income and not against the gross total income, is not correct and not sustainable. He, therefore, prayed for deletion of the remarks of the CIT (A).

The learned DR, on the other hand, submitted that the AO while passing the assessment order u/s 143(3) of the Act, had not verified the quantum claim of the assessee’s deduction u/s 80IA of the Act and that he only noticed the same only after passing the assessment order that there is an excess claim of deduction. He submitted that there is a mistake apparent from the record which can be rectified u/s 154 of the Act. He submitted that the AO is not examining the eligibility of the assessee in claiming the deduction u/s 80IA, but he is only examining the correctness of the quantification of the claim and therefore, it is not a debatable issue but is a mistake apparent from record which is rectifiable u/s 154 of the Act. Further, he placed reliance upon the decision of the Hon'ble Supreme Court in the case of Plastiblends India Ltd vs. Add. CIT (2017) 86 Taxmann.com 137 (SC) wherein the Hon'ble Supreme Court held that while computing the deduction u/s 80IA of the Act, the depreciation has to be reduced for computing the profit eligible for deduction u/s 80IA of the Act. Applying the same rationale, he submitted

Having regard to the rival contentions and the material on record, we find that the assessee has claimed deduction u/s 80IA of the Act in the return of income filed along with Form 10CCB. The AO has accepted and allowed the claim u/s 80IA. It is only subsequent thereto, that he has issued notice u/s 154 on the ground that there is an excess claim of deduction u/s 80IA. The argument of the assessee that it is a debatable issue and therefore, it could not be rectified u/s 154 of the Act has to be examined first. It is not mere quantification but the method of quantification that has been considered u/s 154 of the Act. If there is mistake in the calculation of quantum to be allowed, it is a mistake which can be rectified u/s 154 of the Act. However, if the issue sought to be rectified, is the method of calculation, then we agree with the contention of the assessee that it is a debatable issue and cannot be rectified u/s 154 of the Act. The Hon'ble Supreme Court in the case of CIT vs. Hero Cycles (P) Ltd (Supra) has clearly held that “Rectification under section 154 can only be made when glaring mistake of fact or law has been committed by the officer passing the order and it becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which is not examined on fact or in law cannot be dealt with as mistake apparent on the record. The dispute in the instant case raised a mixed question of fact and law. Hence, the Tribunal was in error in upholding the Assessing Officer's order allowing the assessee's claim for weighted deduction by way of rectification order under section 154”.

In the case of T.S Balaram, ITO vs. Volkart Brothers (Supra), the Hon'ble Supreme Court has held as under: “Section 17(1) of 1922 Act can apply to a 'person'. The expression 'person' is defined in section 2(9) of 1922 Act to include a HUF and a local authority. Unless a firm can be considered as a 'person', section 17(1) of the 1922 Act cannot govern the assessment of the assessee-firm. In the 1961 Act the expression 'person' is defined differently. It is a matter for consideration whether the definition contained in section 2(31) of the 1961 Act is an amendment of the law or is merely declaratory of the law that was in force earlier. To pronounce upon this question, it may be necessary to examine various provisions in the Act as well as its scheme. Thus, the question whether section 17(1) was applicable to the case of the assessee-firm was not free from doubt. Therefore, the ITO was not justified in thinking that on that question there could be no two opinions. It was not open to the ITO to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the 1961 Act. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. Thus, the ITO was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the assessee-firm. The revenue's appeal was accordingly dismissed”. 10. After considering the above decisions, the Hon’ble Delhi High Court in the case of CIT vs. Richa & Co (Supra) has held as under: “The adjustment, which was sought to be made by the Assessing Officer, was not one of those prima facie adjustments, permissible while exercising power under section 143(1)(a). Law is fairly well settled that section 154 has no application where debatable issues are involved. Where the error sought to be rectified is far from self-evident, it ceases to be an apparent error. An error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. The power exercisable under section 154 to correct ‘any mistake apparent from the record’ is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an ‘error apparent on the face of the record’. That being the position, the Tribunal’s conclusion that the matter could be taken up in a regular proceeding and not under section 154 was in order. Accordingly, this appeal was not entertained.

From the above judgements, it is clear that only a mistake which is glaring and apparent can be rectified u/s 154 of the Act. In the case before us, the AO had set off the loss of the eligible units from the profits of the eligible units to calculate the deduction u/s 80IA of the Act. Whether the loss from the eligible units cannot be set off from the profits of other eligible units is a datable issue and therefore, it cannot be rectified u/s 154 of the Act. Therefore, we allow the ground of appeal of the assessee. Even otherwise, on merits of the issue which is raised in Ground No.2, we find that the issue is covered in favour of the assessee by various decisions which are relied upon by the ld Counsel for the assessee. Sub-section 5 of Section 80IA provides that the deduction should be calculated in respect of an eligible unit on a standalone basis i.e. as if it is the only source of income to the assessee. This is for the reason that an assessee is eligible for deduction u/s 80IA for a period of 10 years and the first of these ten years can be selected by the assessee.

In the case of CIT vs. Dewan Kraft Systems () Ltd (2008) 297 ITR 305, the hon’ble Delhi High Court has clearly brought out that loss of eligible unit cannot be set off against the profits of another eligible unit. Relevant paragraphs of the Hon’ble Delhi High Court decision are as under: “13. Perusal of the above provision shows that it is a distinct and separate deeming provision which lays down the special method of computing the profits and gains entitled to deduction under section 80-IA of the Act. Moreover, this provision is of overriding nature providing specifically that during each of the assessment years in the tax holiday, period in which the assessee is entitled to deduction under section 80-IA of the Act, this provision will be applied as if the industrial unit is an independent unit and is the one and only source of income possessed by the assessee. 14. It is clear that while computing deduction under section 80-IA of the Income-tax Act, 1961, the profits and gains of Kalamb unit for the purpose of determining the quantum of deduction under section 80-IA(5) of the Act is to be computed if such eligible business of the said unit is the only source of income of the assessee. The Assessing Officer mixed the profits of the Kalamb unit with the profits of units at Delhi and NOIDA and, thus, he

In the case of Punit Construction Co (Supra), the Coordinate Bench of the Tribunal at Mumbai has considered various judicial precedents including the decision of the hon Apex Court in the case of Plastiblends India Ltd vs. Add. CIT which was relied upon by the learned DR, and has held as under: “13. In this case, the assessee is into two segment of business i.e. construction business which is non eligible and power generation business which is eligible business u/s 80IA of the Act. Admittedly, the assessee has set up 5 wind mills out of which two wind mills are set up in the financial year relevant A.Ys. 2005- 06 and 2006-07 and remaining 3 wind mills have been set up during the financial year relevant to A.Y. 2011-12. All 5 wind mills are situated at different locations and commenced production at different point of time. All 5 wind mills are eligible units for deduction u/s 80IA of the Act. The assessee has derived profit from 2 wind mills and incurred losses from 3 wind mills. The assessee has claimed deduction u/s 80IA in respect of profit of 2 wind mills without set off of losses of 3 wind mills, considering each wind mill as a separate unit eligible for deduction u/s 80IA of the Act. Considering the facts and circumstances of this case, we are of the considered view that the assessee's claim of deduction u/s 80IA is in accordance with the provisions of section 80IA(5) of the Act and also in consonance with the decisions of ITAT, Ahmedabad special Bench and ITAT, Bangalore decision. Hence, we direct the AO to allow deduction claimed u/s 80IA of the Income Tax Act, 1961.

In the case of Jindal Aluminium Ltd (Supra), in similar circumstances it was held as under: “13. Coming back to the facts of our case we observe that the gross total income of the assessee is at Rs. 8,03,26,598 lakhs after adjusting the losses suffered by it in the eligible as well as profits of the non-eligible units. There are no brought forward losses or unabsorbed depreciation. The claim of deduction under section 80-IA was in respect of eligible unit 4.14 MW wind energy division at Rs. 4,72,28,143 and the deduction u/s.80HHC of the Act was claimed in respect of other units at Rs.15,51,440. Even if both the deductions are added the sum total is obviously less than the gross total income. In our considered opinion the learned Commissioner of Income-tax (Appeals) has

Further, in the case of Meera Cotton & Synthetics Mills (P) Ltd (Supra), the Coordinate Bench of the Tribunal has held as under: “9. Section 80A(1) provides that in computing total income of the assessee, there shall be allowed from the gross total income the deductions specified in sections 80-C to 80-U. Sub-section (2) further provides that the aggregate amount of deductions under this Chapter shall not in any case exceed the gross total income of the assessee. The gross total income has been defined under section 80B (5) to mean 'the total income computed in accordance with the provisions of this Act, before making any deduction under this Chapter.' It therefore follows that the primary step for considering the grant of deductions under Chapter VI-A is to determine the gross total income, which, in turn, is computed by aggregating the income from all the sources in this year after adjusting the losses of the current year under any head. The brought forward loss or unabsorbed depreciation etc., are also reduced. The resultant figure is determined as gross total income. To put it simply gross total income is the income available at the disposal of the assessee immediately before allowing deductions under Chapter VI-A. If the gross total income is say Rs. 100 and the assessee is entitled to deduction under section 80-IB at Rs. 150, then the amount of deduction under section 80-IB will be restricted to Rs. 100 as per the mandate of section 80A which provides that the deductions shall be allowed from the gross total income and the aggregate amount of all the deductions shall not in any case exceed the gross total income of the assessee.

In the case of Sriram Properties (P) Ltd (Supra), the Coordinate Bench at Chennai has held as under: “19. We are reminded of the celebrated judgment rendered by the Hon'ble Supreme Court in the case of CIT v. Canara Workshop (P.) Ltd. [1986] 27 Taxman 262/161 ITR 320 in which the assessee was engaged in the manufacture of automobile spares. The products manufactured by it were covered by the list in the Fifth Schedule to the Income-tax Act. During the relevant period, the assessee commenced another activity, that is the manufacture of alloy steels, which was also an industry covered in the Fifth Schedule. The assessee sustained loss in the alloy steel industry but profit in the other industry. It claimed deduction in respect of the profit without reducing the loss from the alloy steel industry. The ITO held that the assessee will be entitled to deduction under section 80E on the profits from the manufacture of automobile parts only after setting off the loss in alloy steel manufacture. The High court decided the point in assessee's favour. The revenue assailed the judgment of the Hon'ble High Court before the Hon'ble Supreme Court. While affirming the view taken by the Hon'ble High Court, it was held that in computing the profits for the purpose of deduction under section 80E, the loss incurred by the assessee in the manufacture of alloy steels (a priority industry) could not be set off against the profits of the manufacture of automobile ancillaries (another priority industry) and hence the assessee was entitled to deduction at the specified rate on the entire profits of the automobile parts industry included in the total income without deducting there from the loss in the alloy steel manufacture. Facts involved in the instant appeal are mutatis mutandis similar. 20. The Hon'ble Andhra Pradesh High Court in the case of CIT v. Visakha Industries Ltd. [2001] 251 ITR 471/118 Taxman 777 has also taken the similar view by holding that the deductions contemplated under section 80HH and 80-I are to be allowed with reference to the profits of the particular industrial undertaking and not with reference to the total income of the assessee and therefore loss in an other unit cannot be set off against the profits of eligible unit. 21. In the instant case, we observe that gross total income of the assessee is Rs. 2,56,37,975/- after adjusting losses suffered by the assessee in the

Respectfully following the above decisions, we hold that the loss of the eligible units cannot be set off against the profits of other eligible units.

As regards the third ground of the appeal against the observations of the CIT (A) that it is only the business income of the eligible unit and not the gross total income eligible for deduction u/s 80IA of the Act, we find that the case law relied upon by the assessee and in support of ground No.2 are also applicable to this issue. Respectfully following the same, we delete the findings of the CIT (A).

In the result, assessee’s appeal is allowed. Order pronounced in the Open Court on 14TH August, 2019. Sd/- Sd/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER