TaxTMI 
TaxTMI 
2021 (5) TMI 255
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....both the parties. Case file perused. 2. It transpires at the outset that this assessee's instant appeal suffers from 39 days delay stated to be attributable to the reason(s) beyond its control as per condonation petition/affidavit dt.19-06-2018. No rebuttal has come from the departmental side. The impugned delay is condoned therefore. 3. The assessee's pleadings in the instant appeal raises inter alia raises three folded substantive grievances i.e., validity of Section 147/148 proceedings followed by challenge the correctness of both the lower authorities' action mainly carbon credits sales addition of Rs. 5,87,82,516/- and Section 43B disallowance of provisions of gratuity and leave encashment payments of Rs. 5,16,594/-; respectively....
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....en AO proposed to disallow the deduction claimed u/s. 80IA on sale of carbon credits on the ground that sale of carbon credits cannot be considered to be income derived from eligible business of assessee, though, assessee objected to the proposed disallowance', AO ultimately. disallowed the claim of deduction u/s. 80IA of Rs. 5,07,45,000 by excluding it from business income in the assessment order passed by him. Assessee challenged the decision of AO in appeal preferred before the CIT(A). The learned CIT(A) following the decision of the ITAT. Hyderabad Bench in case of M/s My Home Power Ltd. Vs. DCIT, 151 TTJ 616 deleted the addition by holding that the amount of Rs. 5,07,45,000 on sale of carbon credits is in the nature of capital rece....
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.... Rs. 5,87,82,516/- is directed to be deleted therefore. 6. Next comes equally important question as whether the impugned re-opening is liable to be sustained in the facts of the instant case or not. We repeat as per our discussion in the preceding paragraphs that the Assessing Officer's sole re-opening reason recorded to this effect dt.30-03-2013 goes contrary to the tribunal's landmark decision dt.02-11-2012 in My Home Power Ltd., Vs. DCIT (2012) [27 taxmann.com 27] Hyderabad tribunal's deciding the issue in assessee's favour as upheld in hon'ble jurisdictional high court in CIT Vs. My Home Power Ltd., (2014) [365 ITR 82] AP. The assessee's case in the light of hon'ble apex court's landmark decision in GKN Driveshafts (India) Ltd., Vs. ....
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....ent order. The scheme of law, as laid down by the Hon'ble Supreme Court in GKN Driveshaft's case, thus provides for dual adjudication by the Assessing Officer on the correctness of the reasons recorded for reopening the assessment- one at the stage of dealing with the objections of the assessee prior to proceeding with the reassessment proceedings, and the other at the point of time when, during the reassessment proceedings, the Assessing Officer has to take a call on additions to be made in respect of these reasons. That is where there is a paradigm shift in the scheme of things post GKN Drivershaft decision. In a situation in which, during the reassessment proceedings, the Assessing Officer finds these reasons to be so incorrect that he c....
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.... judicial precedents, which were relied upon by the assessee, did not hold good law, as Their Lordships made clear in no uncertain words. The correctness of the reasons of reopening was not an issue before Their Lordships. The correctness of the reasons for reopening was not, directly or indirectly, in challenge. 19. As is evident from the discussions earlier in this order, here is a case in which the very reasons on account of which the CIT(A) has deleted the quantum additions were also good enough to hold that the initiation of reassessment proceedings is bad in law and yet the CIT(A) was fighting shy of the logical conclusions thereto and natural corollaries to these findings. It is also important to bear in mind the fact that t....