TaxTMI 
TaxTMI 
2018 (1) TMI 1141
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....s. 801A of Rs. 1,36,86,295/- for windmill." 3. Briefly stated facts are that during the year under consideration, the assessee claimed deduction under section 80IA of the Act amounting to Rs. 1,65,62,770/- for the windmill units at Coimbatore, Dhule and Jethwai. The AO during the course of assessment proceedings noticed that the assessee has set off of the losses from windmill units of Rs. 1,73,50,225/- and Rs. 1,05,78,910/- in AY 2009-10, 2010-11 respectively with non-eligible export business profits. According to AO, the assessee has taken loss of Rs. 1,73,50,225/- of the Jethwai unit in AY 2009-10 ignoring the profit from Dhule unit. Accordingly, the AO disallowed the claim of the deduction under section 80IA of the Act claimed by assessee on account of Coimbatore, Dhule and Jethwai unit at Rs. 1,36,86,295/-. Aggrieved, assessee preferred the appeal before CIT(A), who after considering the entire concept and also following assessee's own case of Tribunal decision for AY 2009-10 in ITA No. 6266/Mum/2012 vide order dated 16-01-2015, allowed the claim of the assessee by observing in Para 18 to 28: - "20. Further substituted sub-section (2) of section 801A gives an option to the....
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....00, a 80-IA(12) defined the initial assessment year for venous types of eligible assessee. However, after the amendment by the Finance Act. 1999, the definition of initial assessment year' has been specifically taken away. Now, when the assessee exercises the option of choosing the initial assessment year as cu/led out in s. 80-lA(2) from which it chooses its' 10 years of deduction out 0115 years, then only the losses of the years starting from the initial assessment year alone are to be brought forward as stipulated in s. 801A(5) The loss prior to the initial assessment year. which has already been set-off cannot be brought forward and adjusted into the period of ten years from the initial assessment year as contemplated or chosen by the assessee. it is only when the loss have been incurred from the initial assessment year, then the assessee has to adjust loss in the subsequent assessment years and it has to be computed as if the eligible business is the only source of income and then only deduction u/s 80-/A can be determined. This is the true import of s. 80-IA(5)" 24. Similar view has been taken by the Hon'ble ITAT, Bench "J", Mumbai in the case of MIs Excel Crop....
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....rned Counsel for the assessee stated that this issue is squarely covered in assessee's own case for AY 2009-10 in ITA No. 6266/Mum/2012 dated 16-01-2015, which was finally affirmed by Hon'ble Bombay High Court dismissing the Department Appeal in ITA No. 1144 of 2015 dated 05-07-2017 (copies of which are enclosed in assessee's paper book at pages 103 to 108). We find that the Tribunal in AY 2009-10 in ITA No. 6266/Mum/2012 vide order dated 16-01-2015 has dealt with this issue vide Para 5,6 and 7 as under: - "5. The Ld CIT(A), however, followed the decision rendered by Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd Vs. ACIT (2010)(38 DTR (Mad) 57, wherein the Hon'ble High Court had held as under:- 6. Adverting to the facts of the case, the initial assessment year in this case starts from 2004-05 since the assessee has opted to claim this deduction only in this assessment year, the initial assessment year cannot be the year in which the undertaking commenced its operations and in this case, the initial assessment year is the assessment year in which assessee has chosen to claim deduction under s. 80-IA. Hence, the provisions of s. 80-IA(5) treating....
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....07-2017 dismissing the Revenue's appeal. When this was pointed out to the learned Sr. Departmental Representative, he fairly conceded that the issue is covered in favour of assessee. As the issue is squarely covered in favour of assessee, respectfully following the Tribunal decision for AY 2009-10, which was affirmed by Hon'ble Bombay High Court, we dismiss the issue of Revenue's appeal and confirmed the order of CIT(A). 6. The next issue in this appeal of Revenue is against the order of CIT(A) deleting the disallowance of additional depreciation claim by assessee of wind mill purchase during the year. For this Revenue has raised following ground No.2:- "Whether on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in allowing the additional depreciation of Rs. 34,50,717/- on windmill purchased during the year" 7. Brief facts are that the assessee claim additional depreciation of Rs. 34,50,717/- under section 32(1)(iia) of the Act on windmill installed at Tejuva. The AO disallowed the depreciation only on the reasoning that the words ("or the business of generation or generation and distribution of power were inserted by Finance Act 2012 with effect from ....