ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, RAJAHMUNDRY vs. SREE MURALI MOHANA BOILED & RAW RICE MILL PRIVATE LIMITED, BICCAVOLU

आदेश /O R D E R Per Bench : These appeals are filed by the revenue against the order of the Commissioner of Income Tax(Appeals) [CIT(A)]-12,Hyderabad vide Appeal No.10163/2017-18, 10165/2017-18, 10162/2017-18, 10164/2017-18 dated 14.03.2018 and Cross Objections are filed by the assessee supporting the order of the Ld.CIT(A) for the assessment year 2012-13 to 2015-16. Since the grounds raised in the appeals are common, these appeals are clubbed, heard together and a common order is being passed for the sake of convenience as under.

3 I.T.A. Nos.293-296/Viz/2018 and CO Nos.80-83/Viz/2018 Sree Murali Mohana Boiled & Raw Rice Mill Private Ltd.,, East Godavari Dist.

4 I.T.A. Nos.293-296/Viz/2018 and CO Nos.80-83/Viz/2018 Sree Murali Mohana Boiled & Raw Rice Mill Private Ltd.,, East Godavari Dist.

“8.4 Thus, based on the ratio of the judicial decisions cited, and respectfully following the decision of Hon'ble ITAT in the appellant's own case for the A.Ys.2008-09 and 2009-10, it is held that the AO is not justified in restricting the deduction u/s. 8OIA(iv), disregarding the decision of ITAT, Visakhapatnam, which was not stayed in its operation and as such is binding. It is not correct on the part of the AO to not implement the said order, merely on the ground that such decision was not accepted by department. Thus, on similarity of facts, the AO is directed to calculate the profits and expenditure for allowing deduction u/s. 80IA(iv) of the Act, by adopting allocation of husk at 10%, as held by Hon'ble ITAT, Vishakhapatnam. Accordingly, this ground of appeal is treated as Allowed.” 5. Aggrieved by the order of the Ld.CIT(A), the revenue is in appeal before this Tribunal. During the appeal hearing, the Ld.DR supported the orders of the AO and the Ld.AR relied on the orders of this Tribunal in the assessee’s own case for the assessment year 2008-09 and 2009-10 in I.T.A.Nos.48, 63, 325 & 342/Vizag/2012 dated 28.04.2014 and the Ld.CIT(A). The Hon’ble ITAT in the assessee’s own case supra after considering the issue in detail allowed the appeal of the assessee holding that allocation of husk at 10% is reasonable. For ready reference, we extract para No.10 of the order of the Tribunal which reads as under : “16. On a careful examination, we are inclined to accept the submissions of the Ld. Counsel for the assessee for the reason that the cost of steam is what is to be

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allocated between the power plant and the rice mill. There is no logic in segregating the cost into two parts and allocating the normal loss in the generation of steam at 50-50 and therefore allocating the husk expenses at 15.75% to the power generation plant and 84.25% to the rice mill. Once we come to our conclusion that 10% of the steam is utilized by the power generation plant, then all the cost i.e. attributable and relatable to the generation of steam has to be allocated only on that basis. The cost of steam cannot be segregated into that which is incurred up to a particular point and cost incurred after a particular point. This to our mind is not logical. Thus the allocation made by the assessee to our mind is justified. Hence, we allow this ground of the assessee.” 5.1. The ITAT allowed the appeal of the assessee for the assessment year 2011-12 also in I.T.A.No.509/Viz/2016 dated 21.02.2018 following the order of this Tribunal cited supra.

6.1. However, the AO has not given the details of the initial assessment year in which the deduction u/s 80IA was claimed and the expiry of time limit for claiming the deduction in the assessment orders. As per the information available on record, the assessee had installed the power plant in the assessment year 2003-04 and started claiming the deduction u/s 80IA from the assessment year 2004-05. As per section 80IA, the assessee is entitled for deduction u/s 80IA for 10 consecutive years which expires in

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2014-15, whereas the assessee claimed the deduction in 2015-16 also. Therefore, the AO is directed to verify and allow deduction u/s 80IA correctly for the period for which the assessee is entitled. With the above observation we dismiss the appeals of the revenue.

The above order was pronounced in the open court on 26th October, 2018.

Sd/- Sd/- (धड.एस. सुन्दर ससह) (िी.दुगाा राि) (V. DURGA RAO) (D.S. SUNDER SINGH) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER धिशाखापटणम /Visakhapatnam ददिांक /Dated : 26.10.2018 L.Rama, SPS

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आदेश की प्रधिधलधप अग्रेधर्ि/Copy of the order forwarded to:- 1. निर्ााररती/ The Assessee- Sree Murali Mohana Boiled & Raw Rice Mill Private Ltd.,, 1-54, Komaripalem, Biccavolu Mandal, East Godavari Dist. 2. राजस्व/ The Revenue – ACIT, Central Circle-1, Rajahmundry 3. The Pr.Commissioner of Income Tax (Central) Visakhapatnam 4. The Commissioner of Income-Tax (Appeals)-12, Hyderabad 5. धिभागीय प्रधिधिधि, आयकर अपीलीय अधिकरण, धिशाखापटणम /DR, ITAT, Visakhapatnam 6.गाडाफ़ाईल / Guard file आदेशािुसार / BY ORDER // True Copy //

Sr. Private Secretary ITAT, VISAKHAPATNAM