2017 (12) TMI 294

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.... the non-obstante provisions of Section 801A(5) according to which the assessee is not eligible for deduction since he has carry forward losses of the eligible business." ii) "Whether and in the circumstances of the case, the Ld. CIT-(A) erred in ignoring the judgement of the Hon'ble ITAT Mumbai in the case of Pidilite Industries Limited (ITA No. 33551M12009 dated 10th June 2011) whose ratio-decidendi is totally applicable to the facts of the present case." iii) "Whether on the facts and in the circumstances of the case, the Ld. CIT-(A) erred in deleting the disallowance of deduction made by the AO after applying provisions of section 801A(5) by placing reliance on the judgement of Velayudhaswamy spinning Mills (P) Ltd....

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....s raised by the revenue are inter connected and inter related and relates to challenging the order of Ld. CIT(A) in allowing deduction u/s 80IA to the assessee, therefore we thought it fit to dispose of the same thorough this common order. 4. We have heard the counsels for both the parties and we have also perused the material placed on record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in para no. 2.1 to 2.3 of its order. The operative portion of the order of Ld. . . CIT(A) is contained in para no. 2.3 of its order and the same is reproduced below:- ....

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....0-IA, read with section 263, of the Income-tax Act, 1961 - Deductions - Profits and gains from infrastructure undertakings [Computation of deduction] - Assessment year 2008-09 - Whether in terms of provisions of section 80-IA(5), it is only loss incurred in initial year that has to be carried forward and adjusted against profits of subsequent assessment years for purpose of computing amount of deduction - Held, yes - Whether option of choosing initial assessment year is wholly upon assessee in post amendment period i.e. after 1-4-2000 by virtue of section 80-IA(2) - Held, yes - Whether loss incurred prior to initial assessment year is not required to be notionally carried forward and adjusted within meaning of section 80-IA(5) so as to disa....

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....on u/s 80IA . . had relied upon the decision of Hon'ble Tribunal in the case of ACIT vrs. Gold Mine Shares and Finance 116 TTJ 705 for doing so. However, Ld. CIT(A) after appreciating the facts had relied upon the judgment passed by Hon'ble Madras High Court in the case of Velayudhaswamy Spg. Mills (P.) Ltd. v. Asstt. CIT [20121 340 ITR 477/21 taxmann.com 95 wherein it has been clearly held that where the depreciation and loss of earlier assessment years have already been set off against other business income of those assessment years, there is no need for notionally carrying forward and setting off the same depreciation and loss in computing the quantum of deduction available under section 80-IA. The Court has held further that the year of....