DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 7,, PUNE vs. M/S. L.B. KUNJIR,, PUNE

Shri Nikhil Pathak appearing on behalf of the assessee submitted at the outset that the Assessing Officer has erred in holding that all the four windmills set up by the assessee at four different locations are single undertaking. The Tribunal in the case of Dy. Commissioner of Income Tax Vs. J-Sons Foundry Pvt. Ltd. in ITA No. 2349/PN/2012 for assessment year 2009-10 decided on 28-01-2014 has held that every unit constitute separate undertaking engaged in eligible business. Similar view was taken by the Tribunal in the case of D.J. Malpani Vs. ACIT in ITA Nos. 1148 to 1154/PN/2013 for assessment years 2004-05 to 2010-11 decided on 30- 10-2015. The Tribunal held that each windmill has to be considered as separate undertaking eligible for deduction u/s. 80IA and the deduction should be computed independently for each unit and not on consolidated basis. The Commissioner of Income Tax (Appeals) has granted relief to the assessee by following the decision of Tribunal and the decision of Hon’ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd. Vs. Assistant Commissioner of Income Tax reported as 340 ITR 477.

On the other hand Shri N. Ashok Babu representing the Department vehemently defended the impugned order. The ld. DR submitted that the Department has filed appeal against the order of Tribunal in the case of D.J. Malpani Vs. ACIT (supra).

We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The assessee has

The assessee has claimed deduction u/s. 80IA(4) separately for each unit of windmill. It is an undisputed fact that the date of commencement of operation of each windmill is different. The stand of the Revenue is that instead of claiming deduction u/s. 80IA(4) on each windmill as separate unit, the assessee should have computed deduction on all the windmills as single undertaking.

Since, the issue has already been considered by the Tribunal and has held that each unit of windmill has to be considered separately for computing deduction u/s. 80IA(4), we see no reason to deviate from the view already taken. No contrary judgment has been placed on record before us by the Revenue. The ld. DR has pointed that the Department has filed appeal against the Tribunal’s decision in the case of M/s. D.J. Malpani Vs. ACIT (supra), however, no order by the Hon’ble High Court either staying or reversing the aforesaid decision of Tribunal has been furnished by the ld. DR.

We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in allowing assessee’s claim of deduction u/s. 80IA(4) considering each windmill as separate unit for allowing deduction u/s. 80IA(4) of the Act. Hence, the impugned order is upheld and the appeal of Revenue is dismissed.

Both the sides are unanimous in stating that the facts in assessment years 2012-13 and 2014-15 are identical to the facts in assessment year 2013-14. The disallowance of deduction u/s. 80IA(4) in respect of windmills has been made by the Assessing Officer on similar lines and the Commissioner of Income Tax (Appeals) has allowed assessee’s claim of deduction by following the decision of Tribunal in the case of M/s. D.J. Malpani Vs. ACIT (supra) in both the impugned assessment years. Since, the issue in both the appeals are identical to the one already adjudicated by us in appeal of Revenue for assessment year 2013-14, the findings given

In the result, all the three appeals by the Revenue are dismissed.