DCIT 8(3), MUMBAI vs. SUN-N-SAND HOTEL P. LTD, MUMBAI

The issue raised by the revenue in various grounds of appeal is against the deletion of disallowance of Rs.2,64,94,862/- by the ld. CIT(A) as made by the AO by rejecting the claim of the assessee u/s 80IA(4)(iv) of the Income Tax Act, 1961 (hereinafter referred to as the Act) by holding that the provisions of section 80iA were not applicable for the loss and 2 3064/Mum/2014 unabsorbed depreciation of the years prior to the initial year of claim which has already been set off against the other business income.

Facts of the case are that the assessee filed e-return on 30.10.2007 declaring total income of Rs.NIL and u/s 115JB at Rs.25,75,03,717/-. During the course of assessment proceedings the AO observed that the assessee has claimed deduction u/s 80IA(4)(iv) of Rs.1,34,14,246/- in respect of profit and gains from the business of windmill installed at Supa and Satara of State of Maharashtra in the year 2002 i.e. in the Assessment year 2002-03. During the course of assessment proceedings the assessee filed audited account of the said windmill undertaking to give details of working of deduction u/s 80IA(4)(iv) and also filed detailed explanation vide letter dated 12.1.2009, explaining the compliance of relevant provisions of section 80IA. During the course of assessment proceedings, the assessee has made a revised claim to enhance the quantum of deduction u/s 80IA. After considering the reply of the assessee, the AO held that the assessee has installed the windmills from AY 2002-03 and is eligible for claiming deduction u/s 80IA in respect of profits and gains of such business for ten years at its option out of fifteen years from the AY 2002-03. The assessee claimed deduction from this year. The AO finally held that the initial year is assessment year 2002-03 and subsequent year is upto assessment year 2006-07 , total income of the assessee from the 3 3064/Mum/2014 business of windmill was negative after taking into account the notional brought forward loss and unabsorbed depreciation after setting off the balance of such loss and unabsorbed depreciation. The AO held that the assessee was entitled to deduction u/s 80IA in respect of balance profit of Rs.1,34,14,246/- after setting off notional brought forward loss and unabsorbed depreciation and rejected the claim of the assessee vide order dated 12.2.2009, which was upheld by the ld.CIT(A).

The ld. AR, at the outset, submitted before us that the case of the assessee is fully covered by the decision of Mumbai Tribunal in sister concern of the assessee in DCIT V/s Sun-N-Sand Hotel (Shirdi)Pvt Ltd in dated 13.4.2016 in which an identical issue has been decided in favour of the assessee. The ld. DR also reasonably agreed with the factual aspect of the matter.

We have carefully considered the submissions of the parties, perused the material placed before us including the orders of authorities below and case laws relied upon by the ld AR. We find that in the present case, the AO allowed deduction u/s 80IA(4)(iv) of the Act after making adjustment and setting off of brought forward notional loss and unobserved depreciation and allowed deduction u/s 80IA(4)(iv) and the revised claim of the assessee vide letter dated 12.1.2009 was rejected . We find that the similar issue has been decided by the co-ordinate Bench of the Tribunal in 4 3064/Mum/2014 sister concern of assessee in in which the co-ordinate bench of the Tribunal has decided the issue in favour of the assessee. The operative portion of the said order is reproduced below: “9. Before us, the Ld. Counsel submitted that, the claim of the assessee is in line with the decision of Hon‟ble Madras High Court in the case of Velayudhaswamy Spinning Mills P Ltd (supra) and also in consonance of the ITAT Mumbai Bench in the case of Shevie Exports vs JCIT, reported in [2013] 33 taxmann.com 446. Now, the CBDT has issued a Circular No.1 of 2016 dated 15.02.2016 clarifying that initial assessment year means, the year in which the assessee opts to claim deduction u/s 80IA for the first time and not the year when the eligible activity is started. The fiction in section 80IA(5) of the Act operates only from year subsequent to the initial assessment year. On the merits, he submitted that, the assessee had initially claimed a deduction u/s 80IA(4)(iv) at Rs.24,15,697/- after setting off of business loss and unabsorbed depreciation of Rs.84,94,041/- on a notional basis, though actual amount of carried forward of loss and depreciation allowance was only Rs.74,83,358/-. The working of claim of Rs.24,15,697/- originally was made in the following manner:- Asst Year Particulars Amount Rs. Amount Rs. 2002-03 Net income from windmill unit 1,10,298 Less: IT Depreciation on windmill (2,45,00,000) Unabsorbed deprecation for the year c/f (2,43,89,702) 2003-04 Net Income from windmill 1,03,89,856 Less: IT Depreciation on windmill for the year (1,96,00,000) Loss for the year c/f (92,10,144) Total unabsorbed depreciation to be carried forward (3,35,99,846) 2004-05 Net Income from windmill 90,61,231 Less: IT Depreciation on windmill for the year (39,20,000) Profit for the year 51,41,231 51,41,231 Balance unabsorbed depreciation to Be carried forward (2,84,58,615) 2005-06 Net Income from windmill 93,10,819 Less: IT Depreciation on windmill for the year (7,84,000) Profit for the year 85,26,819 85,26,819 Balance unabsorbed depreciation to be carried forward (1,99,31,796) Asst Year Particulars Amount Rs. Amount Rs. 5 3064/Mum/2014 2006-07 Net income from windmill unit 1,15,94,555 Less: IT Depreciation on windmill for the year (1,56,800) Profit for the year 1,14,37,755 1,14,37,755 Balance unabsorbed depreciation to be carried forward (84,94,041) 2007-08 Net Income from windmill 1,09,41,098 Less: IT Depreciation on windmill for the year (31,360) Profit for the year 1,09,09,738 1,09,09,738 Balance unabsorbed depreciation to be carried forward NIL Deduction claimed u/s 80IA 24,15,697 Later on, the assessee before the AO claimed that, deduction under section 80IA should be allowed without setting off the brought forward loss and depreciation on notional basis but on actual basis. He submitted that, a part of the depreciation allowance from AY 2002-03 has been adjusted against other income by the company and actual unabsorbed depreciation after such set off of at the beginning of AY 2007-08 was Rs.74,83,358/- which worked out in the following manner:- Asst Year Particulars Amount Rs. Amount Rs. 2002-03 Unabsorbed depreciation of windmill undertaking for the year (2,43,89,702) Less: Income from other business, capital gain 7,88,965 Balance depreciation for the year c/f (2,36,00,737) 2003-04 Unabsorbed depreciation of windmill undertaking for the year (92,10,144) Less: Net income from other business, capital gain and other sources for the year 54,817 Net loss for the year (91,55,327) 2004-05 Net Income from windmill business 51,41,231 Net loss from other business and other income (2,39,266) Net income for the year before set off 49,01,965 Balance unabsorbed depreciation to Be carried forward (2,78,54,099) 2005-06 Net Income from windmill undertaking 85,26,819 Income from other business 3,38,265 Gross total income before set off 88,65,064 Balance unabsorbed depreciation to be carried forward (1,89,89,035)

After considering the aforesaid submissions made by the Ld. Counsel and also on the perusal of the relevant finding given in the impugned orders, we find that CBDT Vide its Circular No.1 of 2016 (supra) has clarified the concept of initial assessment year in the following manner: “Section 80IA of the Income Tax Act, 1961 [„Act‟], as submitted by the Finance Act,1999 with effect from 01.04.2000, provides for deduction of an amount equal to 100% of the profits and gains derived by an undertaking or enterprise form the eligible business [as referred to in sub-section (4) of that section) in accordance with the prescribed provisions. Sub-section (2) of section 80IA further provides that the aforesaid deduction can be claimed by the assessee, at his option, for any ten consecutive assessment years out of fifteen years (twenty years in certain cases) beginning from the year in which the undertaking commences operation, begins development or starts providing services etc. as stipulated therein. Sub-section (5) of section 80IA further provides as under – “Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year 7 3064/Mum/2014 or any subsequent assessment year, be computed as if such the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made”. In the above sub-section, which prescribes the manner of determining the quantum of deduction, a reference has been made to the term „initial assessment year‟. It has been represented that some Assessing Officers are interpreting the term „initial assessment year‟ as the year in which the eligible business/manufacturing activity had commenced and are considering such first year of commencement/operation etc. Itself as the first year for granting deduction, ignoring the clear mandate provided under sub-section 92) which allows a choice to the assessee for deciding the year from which it desires to claim deduction out of the applicable slab of fifteen (or twenty) years. The matter has been examined by the Board. It is abundantly clear from sub-section (2) that an assessee who is eligible to claim deduction u/s 80IA has the option to choose the initial/first year from which it may desire the claim of deduction for ten consecutive years, out of slab of fifteen (or twenty) years, as prescribed under that sub-section. It is hereby clarified that once such initial assessment year has been opted for by the assessee, he shall be entitled to claim deduction u/s 80IA for ten consecutive years beginning from the year in respect of which he has exercised such option subject to the fulfillment of conditions prescribed in the section. Hence, the term „initial assessment year‟ would mean the first year opted for by the assessee for claiming deduction u/s 80IA. However, the total number of years for claiming deduction should not transgress the prescribed slab of fifteen or twenty years, as the case may be and the period of claim should be availed continuity. The Assessing Officers are, therefore, directed to allow deduction u/s 80IA in accordance with this clarification and after being satisfied that all the prescribed conditions applicable in a particular case are duly satisfied. Pending litigation on allowability of deduction u/s 80IA shall also not be pursued to the extent it relates to interpreting “initial assessment year” as mentioned in sub-section (5) of that section for which the Standing Counsels/DRs be suitably instructed”.

Thus, when the initial assessment year is chosen by the assessee, from then only he is entitled to claim deduction u/s 80IA for the 10 consecutive years beginning from the year in respect of which he has exercised such an option subject to the fulfillment of condition prescribed in the section. Now, as admitted by the Ld. Counsel the assessee has chosen AY 2007-08 as the initial assessment year and has also filed the working of deduction as given above from the working the assessee company would be eligible for deduction under section 80IA at Rs.34,26,383/- based on set off of actual unabsorbed depreciation at the beginning of AY 2007-08. Hence, the correct amount of deduction for which the assessee is entitled to in accordance with the CBDT Circular No.1 of 2016 would be Rs.34,26,383/-. The AO is thus directed to allow the claim of deduction under section 80IA to Rs.34,26,383/-, to which it is entitled to as per law. Accordingly revenue‟s appeal is dismissed.”

Respectfully following the decision of the Tribunal in assessee‟s sister concern as stated supra , we uphold the order of CIT(A) by dismissing he appeal of the revenue.

The appeal filed by the revenue stands dismissed.