Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
These three appeals by the Revenue for the assessment years 2012-13, 2013-14 and 2014-15 are directed against the orders of Commissioner of Income Tax (Appeals)-5, Pune for the respective assessment years. The order of Commissioner of Income Tax (Appeals) for the assessment year 2012-13 is dated 17-09-2018. The impugned order of Commissioner of Income Tax (Appeals) for assessment year 2013-14 is dated 30-06-2017 and the order of Commissioner of Income Tax (Appeals) for assessment year 2014-15 is dated 18-09-2017.
3 ITA Nos.76/PUN/2019, 2614/PUN/2017 & 07/PUN/2018
Since, the issue raised in all these appeals is identical and is emanating from same set of facts, these appeals are taken up together for adjudication and are being disposed of vide this common order.
The Revenue in all the three appeals has assailed the action of Commissioner of Income Tax (Appeals) in allowing assessee’s claim of deduction u/s. 80IA(4) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”).
Since, the order of First Appellate Authority for assessment year 2013-14 is first in time, the facts are culled out from the appeal for assessment year 2013-14.
ITA No. 2614/PUN/2017 (A.Y. 2013-14)
The assessee has set up four windmills at different locations viz. Jaisalmer (Rajasthan), Dhulia, Nandurbar and Sinnar. The assessee claimed deduction u/s. 80IA(4) of the Act in respect of income derived from the four windmills separately. The Assessing Officer rejected assessee’s claim by treating all the four windmills as single undertaking.
Aggrieved against the assessment order dated 29-02-2016 passed u/s. 143(3) of the Act, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The First Appellate Authority after appreciating the facts of the case and the decision of Pune Bench of Tribunal in the case of Malpani Tea Corporation Vs. Dy. Commissioner of Income Tax in ITA No. 912/PN/2011 for assessment year 2006-07 decided on 31-12-2012 allowed assessee’s claim of deduction u/s. 80IA(4) of the Act in full.
4 ITA Nos.76/PUN/2019, 2614/PUN/2017 & 07/PUN/2018
Against the findings of Commissioner of Income Tax (Appeals), the Revenue is in appeal.
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
5 ITA Nos.76/PUN/2019, 2614/PUN/2017 & 07/PUN/2018
set up four windmills and claimed deduction u/s. 80IA(4) in respect of each of the windmills as per the table given below : Sr. Location of Date of Income from Initial Assessment No. windmills commencement operation Year from when of operation claimed as deduction is being deduction u/s. claimed 80IA(4) 1 Jaisalmer, 31.03.2004 11,39,020/- 2011-12 Rajasthan 2 Dhulia 20.09.2005 64,10,668/- 2011-12 3 Nandurbar 06.03.2006 61,53,036/- 2011-12 4 Sinnar 30.03.2009 57,03,873/- 2013-14 Total 1,94,06,597/-
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.
We find that the issue whether deduction u/s. 80IA(4) is to be computed on each windmill unit separately or on consolidated basis was considered by the Co-ordinate Bench in the case of M/s. D.J. Malpani Vs. ACIT (supra). The Tribunal after considering the earlier decision rendered in the case of Dy. Commissioner of Income Tax Vs. J-Sons Foundry Pvt. Ltd. (supra) concluded as under : “58. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (Supra) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.80IA and therefore deduction u/s.80IA(4) should have been computed independently for each phase and not on consolidated basis. The grounds raised by the assessee on this issue is accordingly allowed.”
6 ITA Nos.76/PUN/2019, 2614/PUN/2017 & 07/PUN/2018
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.
ITA Nos. 76/PUN/20019 for A.Y. 2012-13 and ITA No. 07/PUN/2018 for A.Y. 2014-15)
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
7 ITA Nos.76/PUN/2019, 2614/PUN/2017 & 07/PUN/2018
by us while adjudicating the appeal for assessment year 2013-14 would mutatis mutandis apply to the appeals for assessment years 2012-13 and 2014-15. Both the appeals of Revenue are dismissed, accordingly.
In the result, all the three appeals by the Revenue are dismissed.
Order pronounced on Tuesday, the 27th day of August, 2019.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 27th August, 2019 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-5, Pune 3. 4. The Pr. Commissioner of Income Tax-4, Pune ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “ए” बेंच, 5. ऩुणे / DR, ITAT, “A” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune