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2015 (6) TMI 210
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....e case. 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the unabsorbed depreciation of the period prior to the opted initial assessment shall be ignored while computing deduction ujs.80IA in respect of income from windmill business without appreciating that ujs.80IA (5) deduction u/s.80IA of the eligible business shall be computed as if such business were the only source of income. 3. On the facts and in the circumstances of the case and in law the Ld.CIT(A) failed to appreciate that in view of the provisions of 80IA(5) the eligible business being the only source of income of the assessee, the unabsorbed depreciation relatable to such business is to be taken into consideration ....
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....d under section 32 for the relevant assessment year viz. assessment year 2005-06 ought to be considered and unabsorbed depreciation of Windmill for earlier assessment years is not to be deducted even after considering the provisions of section 80-IA (5). This is because the term "initial assessment year" for the purpose of allowing deduction under section. 80-IA ought to be considered as the first year in which the Company exercises the option of claiming deduction under the said section viz. assessment year 2005-06 and not the first year in which the unit starts generating power."' 3. However, the A.O. rejected the assessee's claim for treating the A.Y. 2005-06 as initial assessment year for claiming deduction u/s 80IA of the Ac....
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.... by the decision of Hon'ble Madras High Court as referred by the ld. CIT(A) but also by the decision of Hon'ble Karnataka High Court and host of other decisions of the co-ordinate Bench of the ITAT. The list of decisions relied upon by the ld. Counsel before us are as under:- 1. Copy of the decision of the Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd vs. ACIT [2012] 340 ITR 477 (Mad) dated 11 March 2010. 2. Copy of the decision of the Karnataka High Court in the case of CIT & DCIT vs. Anil H. Lad [2014] 102 DTR 241 (Kar) dated 5 February 2014 3. Copy of the decision of the Bangalore Tribunal in the case of Anil H. Lad vs. DCIT [2012] 13 ITR(Trib) 581 (Bang) dated 7 January 2011. 4. Relevant extr....
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....ring the provisions of section 80IA of the Act, held that if the loss in the earlier years to the initial assessment year has already been absorbed, then it cannot be notionally brought forward and set off against the profits of the eligible business. This view has been reiterated again by the Hon'ble Karnataka High Court in the case of CIT & DCIT vs. Anil H. Lad [2014] 102 DTR 241 (Kar). Following the said High Court decisions, the various Benches of the Tribunal have been following the same ratio. In the case of Shevie Exports vs. JCIT (36 CCH 17), the Tribunal after discussing various decisions pro and contra observed and held as under:- "9. Section 80IA, which has been substituted w.e.f. Ist April 2000, provides that where the gr....
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....g the, assessment year for which the determination is to be made." 10. From a plain reading of the above, it can be gathered that it is a non- obstante clause which overrides the other provisions of the Act and It Is for the purpose of determining the quantum of deduction under section 80IA, for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year to be computed as if the eligible business is the only source of income. Thus, the fiction created is that the eligible business is the only source of income and the deduction would be allowed from the Initial assessment year or any subsequent assessment year. It nowhere defines as to what Is the initial assessment year. Prior to Ist April 200....