TaxTMI 
TaxTMI 
2011 (1) TMI 1370
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment year 2002-03 and 2003-04 respectively.. 2. The two captioned appeals by the assessee involve certain common issues and, therefore, we find it expedient to dispose of the same by way of a consolidated order for the sake of convenience and brevity. 3. In both the appeals, a common issue relates to denial of deduction claimed by the assessee under section 80IA of the Act in relation to the profits of Wind mill activity. In order to appreciate the facts and the controversy on this aspect, we may briefly refer to the facts as relating to assessment year 2003-04. In this case, the assessee is a company incorporated under the provisions of Companies Act and is engaged in the business of manufacturing of plastic moulding products. For the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t for every year and the profitability of each Wind mill should be arrived at separately by treating each Windmill as business entity and, therefore, the same being eligible for deduction under section 80IA independently. The Assessing Officer noted that income from Wind mill activity was included in the Profit and Loss account as 'other income', which showed that assessee itself was not treating the same as business income. Therefore, no deduction under section 80IA was allowable on such income, because any deduction allowable under section 80IA of the Act is only out of profits and gains derived from an industrial undertaking "from any business" referred to in sub-section (4) of section 80IA of the Act. Since income from Wind mill activit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er also noticed that from the first three Windmills, the assessee had shown a net profit and net income of fourth Windmill was adjusted against depreciation and the loss thereof was adjusted against profit derived from other manufacturing business of plastic moulding, which was in conflict with the provisions of section 80IA(5) of the Act. As per the Assessing Officer, assessee company had earned income from four Windmills and, after considering expenses and year-wise depreciation, there was no profit from the eligible business and in fact there was a loss from the Windmill activity. In coming to such conclusion, the Assessing Officer inferred that the assessee may install any number of Windmills, but they cannot be treated as separate enti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e with the decision of the Special Bench of the Tribunal in the case of ACIT v. Goldmine Shares & Finance (P) Ltd. 113 ITD 209 (SB) (Ahd). However, it is also pointed out that the legal position on the subject is yet not settled and, according to the learned Counsel, the same is in further appeal before the High Courts. He, therefore, contended that though the issue may be decided against the assessee in view of the Special Bench decision of the Tribunal in the case of ACIT v. Goldmine Shares & Finance (P) Ltd. (supra), but it should not be construed as an acquiescence from the side of the assessee. 5. In view of the aforesaid discussion and the decision of the Special Bench of the Tribunal in the case of ACIT v. Goldmine Shares & Finance ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt on 30.3.2006. The said action is challenged by the assessee on the ground that it constituted a "change of opinion" because the claim was accepted as such in the return processed under section 143(1) of the Act on 28.3.2003. Though the learned Counsel submitted that processing under section 143(1) does not construe existence of an opinion, but in the present case, it is sought to be pointed out that at the relevant point of time the assessment under section 143(3) of the Act for an earlier assessment year 2001-02 was in progress, which was completed on 29.4.2003, wherein the claim of the assessee for deduction under section 80IA was allowed in principle, subject of-course to a disallowance of 5%. Though the assessment for assessment yea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CIT 177 ITR 409 (SC), (c) Anusandhan Investments Ltd. DCIT 287 ITR 482 (Bom) 9. Having heard both the parties on the issue regarding validity of the proceedings initiated under section 147/148 of the Act, we find that assessee has to fail. No doubt, it is not permissible for the Assessing Officer to reopen an assessment under section 147/148 of the Act on a mere change of opinion. However, in the present case, the factual matrix does not support the plea of the assessee that notice under section 148 of the Act dated 30.3.2006 has been issued in this case on a "change of opinion". The plea of the assessee that the Assessing Officer formulated an opinion while processing the return under section 143(1) of the Act on 28.3.2003, in our view,....