TaxTMI 
TaxTMI 
2014 (11) TMI 762
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....0IC(2) was not based just on failure to obtain NOC from the pollution Control Board but it was based on the factual facts. 2. Whether the Ld. CIT(A) has erred in law and on facts not to appreciate the fact that ecotourism is the condition precedent, to be complied with for hotels for claiming deduction u/s 80-IC of the IT. Act, 1961. 3. Whether the Ld. CIT(A) has erred in law and on facts in holding that deduction should be allowed if the assessee satisfies the following conditions:- (a) It is a Hotel, (b) It has a valid License, (c) NOC from the pollution Control Board has not been denied to it." 2. Brief facts Assessee an individual is enjoying income from Hotel running business at Tapovan Badrinath Marg, Distt. Tehri Garhwal in Utt....
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....iled by the revenue. 4. We have heard Shri Sameer Sharma, Ld. Sr. D.R. on behalf of the Revenue and Shri Gautam Jain Ld. Counsel for the assessee. 5. On a careful consideration of the facts and circumstances of the case, on perusal of material on record, orders of the authorities below, and case laws cited, we hold as follows :- 5.1 In this case the assesese had claimed deduction u/s 80IC for the first time during the year asstt. Year 2007-08. The return was processed u/s 143(1) and the deduction has not been disallowed or withdrawn till date. Later for the asstt. Year 2008-09 the claim was allowed u/s 143(3). 5.2 Now the issue is whether the AO can disallow the claim for deduction u/s 80IC for the asstt. Year 2009-10 and 2010-11 when t....
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....urbed and the assessee was allowed the claims u/s 80IC. 14. The Hon'ble Delhi High Court in the case of CIT vs. Delhi Patra Prakashan Ltd. 355 ITR 14 considered the question as to whether the ITAT was right and holding that requisite conditions to be fulfilled for allowability of deduction u/s 80 I ought to be satisfied, not only in the first or the initial year, but in all the assessment years in which the deduction u/s 80I is claimed by the assessee. The Hon'ble High Court at Para 74 to Para 80 held as follows :- '' 74. In the present case, the claim of the assessee u/s 80-I of the Act was examined and allowed by the Assessing Officer for three years preceding the assessment year 1991-92. It is relevant to note that asse....
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.... 1991-92. However, there is yet another aspect which needs to be considered. By virtue of section 80-I(5) of the Act, deduction under section 80-1 of the Act is available to an assessee in respect of the assessment year (referred to as the initial assessment year) relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles or things, or to operate its cold storage plant or plants or the ship is first brought into use or the business of the hotel starts functioning or the company commences work by way of repairs to ocean-going vessels or other powered craft. Such deduction is also available for the seven assessment years immediately succeeding the initial assessment year. Surely in cases where ....
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....g was formed. In such circumstances, it would not be possible for an Assessing Officer to reject the claim of an assesese for deduction under section 80-1 of the Act on the ground that the industrial undertaking in respect of which deduction is claimed did not fulfill the conditions as specified in Section 80-1(2) of the Act, without undermining the basis on which the deduction was granted to the assessee in the initial assessment year. This in our view would not be permissible unless the past assessments are also disturbed. 77. The Assessing Officers over a period of three years being assessment years 1988-89, 1989-1990 and 1990-1991 have consistently accepted the claim of the assessee for deduction under section 80-I of the Act and it wo....
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....itions. No doubt, the relief of tax holiday under section 80J can be withheld or discontinued provided the relief granted in the initial year of assessment is disturbed or changed on valid grounds. But without disturbing the relief granted in the initial year, the ITO cannot examine the question again and decide to withhold or withdraw the relief which has been already once granted." 79. The Division Bench of the Bombay High Court in the case of Paul Brothers (supra) has also adopted the view expressed by the Gujarat High Court in the case of Saurashtra Cement & Chemical Industries (supra). 80. Following the aforesaid decisions , we hold that in facts of the present case Unit Nos. 2 & 3 cannot be stated to have been formed by splitting up....