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Income Tax Appellate Tribunal, BENCH “F”, MUMBAI
Before: SHRI SHAMIM YAHYA & SHRI PAWAN SINGHShri Ram Tiwari (DR) Shri A. N. Shah (AR) PER PAWAN SINGH:
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by Revenue under section 253 of Income Tax Act (‘the Act’) is directed against the order of Ld. Commissioner of Income-Tax (Appeals)-32, Mumbai, [for short the ld. CIT(A)] dated 11.05.2016 for Assessment Year 2012-2013 which in turn arises from the assessment order passed by Assessing Officer under section 143(3) of the Act dated 27.03.2015. The Revenue has raised following grounds of appeal:
The ld. CIT(A) erred in holding that notional losses incurred by assessee cannot be carried forward in respect of Wind Mill Unit and set off of against the profit of the initial Assessment Year before allowing the deduction under section 80IA.
2. The ld. CIT(A) erred in allowing assessee’s claim of Rs. 32,52,730/- under section 80IA notwithstanding the decision of Hon’ble Ahmedabad Tribunal in case of ACIT vs. Goldmine Share and Finance P. Ltd. (133 ITD 209) (Ahd)(SP).
At the outset of hearing, the Ld. Authorized Representative (AR) of the assessee submits that the grounds of appeal raised in the present appeal is M/s Relishah Exports covered in favour of assessee in assessee’s own case in for Assessment Year 2011-12. On gone through the order of Tribunal in ITA No. 4278/Mum/2015 for Assessment Year 2011-12 dated 24.03.2017, the ld. DR for the Revenue has fairly conceded that the ground of appeal raised by Revenue is squarely covered against the Revenue.
We have considered the rival submission of the parties and gone through the orders of authorities below. We have seen that the Revenue has raised the identical ground of appeal as raised in appeal for Assessment Year 201-12. We have noted that on identical ground of appeal in assessee’s own case, the Tribunal has passed the following order:
“6. We have heard the rival submissions and perused the relevant material on record. We find after the amendment in section 80IA by the Finance Act 1999, an assessee has an option for selecting the initial assessment year. The losses prior to the initial assessment year which has already been set off cannot be brought forward and adjusted into the period of 10 years from the initial assessment year as chosen by the assessee. It is only when the loss has been incurred from the initial assessment year, then the assessee has to adjust loss in subsequent years and it has to be computed as if eligible business is the only source of income and then only deductions u/s 80IA can be determined. 6.1 The Special Bench decision relied on by the AO is not applicable since the same pertains to AY 1996-97 and 1997-98 i.e. prior to the amendment. Moreover, the assessee has clearly shown in the instant appeal that the initial year of assessment for claiming of deduction is AY 2010-11. 6.2 In the case of Shevie Exports (supra), it has been held that in terms of provision of section 80IA(5), loss incurred prior to initial assessment year of claiming deduction is not required to be notionally carried forward and adjusted against eligible profit so as to disallow a part of deduction claimed. In the case of Devi Seafoods Ltd. vs. JCIT [2016] 70 taxmann.com 57 (Visakhapatnam-Trib.), it has been held that in order to claim deduction u/s 80IA, the initial assessment year would mean 1st year adopted by the assessee for claiming deduction and not the year in which eligible business was commenced. The same is reiterated in M/s. Hyderabad Chemical Products Pvt. Ltd. Vs. ACIT (ITA No. 1033/Hyd/2015) by the ITAT “B” Bench Hyderabad for the A.Y.2008-09. 6.3 In view of the reasons narrated para 6 to 6.2 here-in-above, we uphold the order passed by the learned CIT(A). 2
In the result, the appeal filed by the revenue is dismissed.”
Considering the decision of Tribunal in assessee’s own case on identical set of fact in earlier year, we find that the grounds of appeal raised by Revenue are covered in favour of assessee and against the Revenue. Hence, respectfully following the decision of earlier year, the grounds of appeal raised by Revenue is dismissed.
In the result, appeal filed by Revenue is dismissed.
Order pronounced in the open court on 20th day of March 2018.