2013 (7) TMI 684

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..../-. 2. The ld. CIT(A) erred in upholding that the unabsorbed losses and depreciation of windmill unit for AY 2002-03 to AY 2004-05 that were adjusted by your appellant against the hotel income were to be notionally set off against the profits of the wind mill unit for AY 2007-08 before computing the eligible profit for deduction u/s 80IA. 3. Your appellant prays before your honour that the injustice done by the ld. AO may please be removed and the deduction be allowed as per law". 2. The relevant facts giving rise to this appeal are that the assessee is a firm and running restaurant and other business carried on is of generation of electricity by Wind Mill Generator. The assessee commenced wind mill project in the year 31.12.2001. During....

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....ase of ITO V/s Kanchan Oil Industries Ltd 92 ITD 557(Kol) and the decision of the Special Bench of the Tribunal in the case of Goldmine Shares and Finance (P) Ltd reported in 113 ITD 209 wherein it has been held that the unabsorbed losses/unabsorbed depreciation relating to the eligible business are to be taken into account in determining the quantum of deduction admissible under section 80IA even though these unabsorbed losses/depreciation relating to the eligible business may actually have been set off against the profits of the assessee from non- eligible business or other sources. The AO held that notional losses on account of unabsorbed depreciation and business loss for the period from assessment yeast 2002- 03 to 2004-05 of Rs.95,16,....

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....ined no unabsorbed depreciation and losses of wind mill activity. However, the A.O. held that the depreciation and losses of A.Y.2002-03 to 2004-05 of wind mill have to be notionally brought forward for adjusting against the profits of the year under consideration earned from wind mill activity and the balance income was allowable as deduction u/s.80-IA of the Act. Now the question for consideration is as to whether when the depreciation and losses of earlier years were already adjusted against hotel income, the depreciation and losses have again to be notionally brought forward for adjusting against the income from wind mill of the year under consideration. I have considered the facts of the case. I have noticed that the issue discussed i....

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....A No.6360/Mum/2011 (AY-2008-09) and the Tribunal vide its order dated 8.2.2013 decided the issue in favour of the assessee. A copy of the said order is placed at pages 32 to 44 of the paper book. She submitted that the issue stands covered in favour of the assessee by the above said orders (supra) in assessee's own case. The ld. DR has not disputed the above contention of the assessee save and except relied on the order of the ld. CIT(A). 5. We have carefully considered the submissions of the ld. Representative of the parties and also perused the orders of the authorities below. We have also gone through the earlier orders of the Tribunal dated 6.2.2013, copy of which are placed at pages 28 to 31 of the paper book and the order dated 8.2.2....