TaxTMI 
TaxTMI 
2016 (2) TMI 987
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.... and circumstances of the case, the Ld. CIT(A) was correct in interpreting the provision of section 80IA(5) in the light of decision in the case of M/s Hyderabad Chemicals Supplies Ltd., APIE, Balanagar Hyderabad- 37 Vs. The ACIT, Circle 1 (4), Hyderabad Dated 21st January, 2011. 2. Whether in the facts and in the circumstances of the case, the Ld. CIT(A) was correct in interpreting "initial assessment year". 3. Whether in the facts and in the circumstances of the case, the definition of "Initial Assessment Year" as given in Section 80IB(14) of the Act is not applicable in the provision of Section 80IA of the Act. 4. The order of the AO be restored and that of the CIT(A) be vacated. 5. The appellant craves leave to add, amend or alt....
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.... (4,31,70,214) 2011-12 55,07,530 55,07,530 -- (3,76,62,684) 5. The Assessing Officer held that as there is cumulative balances of unabsorbed losses from A.Y. 2006-07 onwards, more particularly from the business of generation of power and hence, assessee is not eligible for deduction in view of provisions of Sec. 80IA(5) of the Act. In the opinion of the Assessing Officer the adjustment of losses for earlier years has to be made as per provisions of Sec. 80IA(5) of the Act, which is a non-obstane clause having overriding effect to the provisions of the Act. He accordingly disallowed the impugned deduction under section 80IA(4)(iv)(a) of the Act. 6. In the first appeal, the CIT(A) decided the issue in favour of the assessee. ....
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....favour of the assessee by the decision of the Hon'ble High Court of Madras in the case of Velayudhaswamy Spinning Mills (P) Ltd. Vs. ACIT 38 DTR 57 (Mad) as well as the decision of the ITAT, Pune in the case of Serum International Ltd. Vs. Addl. CIT, Range-6 ITA Nos. 290 to 292/PN/2010 dated 20-09-2011. 6. In the case of Serum International Ltd. (supra) the Tribunal has held as under: "13. Having been considered the above submissions, we find that the issue raised in Ground No. 1 as to what would be the initial A.Y for the purposes of Section 80IA(5) of the Act has been decided in favour of the assessee by the Pune Bench of the Tribunal in the case of Poonawalla Stud and Agro Farm Pvt. Ltd. Vs. ACIT (Supra). In that case after discu....
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....nst the correct income of the eligible business. Fiction created by Sub-section (5) of Section 80IA does not contemplate such notional set off, held the Hon'ble High Court. The Hon'ble Madras High Court in that decision has also referred the decision of Hon'ble Supreme Court in the case of Liberty India Vs. CIT (Supra) and the decision of Special Bench of the Tribunal in the case of Goldman Shares & Finance (P) Ltd. (Supra). There is no dispute that even a decision of nonjurisdictional High Court is a binding precedent for the Tribunal until a contrary decision is given by any other competent High Court. In this regard, we find strength from the recent decision of Hon'ble jurisdictional Bombay High Court in the case of Commi....
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....ot notionally bring forward any loss of earlier years which has already been set off against any other income of the assessee and set off the same against the current income of the eligible business. We thus set aside the orders of the authorities below and direct the A. O to allow the claimed deduction u/s. 80IA without bringing the notionally brought forward any loss or depreciation of earlier years which has already been set off against other income of the assessee. The decision of Pune Bench of the Tribunal in the case of Prima Paper Engineering P. Ltd. Vs. I TO (Supra) cited by the Ld. DR is also not helpful to the revenue since firstly the decision of the Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) L....