2013 (12) TMI 652

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....f assessment bad in law 1. The Ld CIT (A) erred in upholding Assessing Officer reopening the assessment which was completed u/s 143(3) of the Act, dated 20.12.2007 by issue of notice u/s 148 dated 30.3.2009 merely on change of opinion as learned AO had no reason to believe that any income chargeable to tax has escaped assessment, further the learned Assessing Officer failed to appreciate that assessment cannot be reopened on debatable point. On merits: 2. The CIT (A) erred in upholding the order passed by the Assessing Officer in disallowing the deduction of Rs. 19,07,508/- claimed u/s 80-IA(4) of the Act by adjusting the notional unabsorbed losses of earlier years against income of the business eligible for deduction u/s 80-IA(4) ....

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....y P. Ltd. [2011] 53 DTR 263 (Mad) (High Court) (After considering the above decision) (c) ACIT vs. Eveready Spinning Mills Ltd. [2012] 14 ITR 491 (Chennai) (Tri) 2. Binding Effect: Non jurisdictional High Court decision after considering the Special Bench decision is binding on Tribunal: Anil H. Lad vs. DCIT [2012] 13 ITR 581 (Bang.)(Trib.) (Considered the above decisions)." 3.1. Referring to the above citations and the ratios of the same, Ld Counsel mentioned that the Assessee is eligible for deduction u/s 80-IA of the Act in respect of the profits out of the generation of electricity out of Windmill activity and the unabsorbed depreciation of the earlier years, since already set off with the ineligible profits of the assessee, could....

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.... of Hon'ble Madras High Court in the case of CIT vs. Emerald Jewel Industry P. Ltd (supra). Similar views are expressed by the same High Court in the case reported in 231 CTR 368 and another decision reported in 116 TTJ 705. It was argued by the assessee counsel, in principle, the ground no.2 has to be decided in favour of the assessee subject to the finding that the claim of the assessee that the losses were already adjusted against the ineligible profits of the assessee in earlier years. On the other hand, Ld DR does not have any objection in this regard. 6. Considering the above concurrence of both the parties that the issue of setting aside to the files of the CIT (A) for adjudicating the issue afresh in accordance with the judgments....