Income Tax Appellate Tribunal - Pune
Sanjaykumar D. Lokhande, Pune vs Damodar Jagannath Malpani, Sangamner on 27 September, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
BEFORE SHRI R. K. PANDA, VICE PRESIDENT
AND
MS ASTHA CHANDRA, JUDICIAL MEMBER
IT(SS)A Nos.26 to 31/PUN/2024
Assessment Years : 2015-16 to 2020-21
ACIT, Central Circle 1 (1), Pune Damodar Jagannath Malpani
S.No.50, Malpani Estate, Akole
Vs.
Road, Kasara Dumala,
Sangamner - 422605
PAN : AACFD1713B
(Appellant) (Respondent)
Assessee by : Shri Nikhil S Pathak
Department by : Shri Amol Khairnar, CIT-DR
Date of hearing : 23-09-2024
Date of pronouncement : 27-09-2024
ORDER
PER BENCH:
The above batch of 6 appeals filed by the Revenue are directed against the orders dated 30.01.2024 of the CIT(A), Pune-11 relating to assessment years 2015- 16 to 2020-21, respectively. Since identical grounds have been raised in these appeals, therefore, for the sake of convenience, these appeals were heard together and are being disposed of by this common order.
2. First, we take up ITA No.26/PUN/2024 as the lead case. Facts of the case in brief, are that the assessee is a firm mainly engaged in the business of manufacturing, packaging & selling of Tobacco, Jarda & allied byproducts, generation of power from windmill & solar, business in shares & securities. It 2 IT(SS)A Nos.26 to 31/PUN/2024 filed its original return of income for assessment year 2015-16 on 19.11.2015 declaring total income at Rs.7,30,45,150/-. A search and seizure action u/s 132 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') was carried out in the Malpani Group of cases of Sangamner on 17.02.2021. In response to the notice issued u/s 153A of the Act dated 25.10.2021, the assessee submitted its return of income on 17.11.2021 declaring income of Rs.7,30,45,150/-. The statutory notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee, in response to which the assessee filed the requisite details.
3. During the course of assessment proceedings the Assessing Officer, on perusal of the computation of total income, noticed that the assessee has claimed deduction of Rs.31,82,48,769/- u/s 80IA(4)(iv)(a) of the Act towards profit earned from wind power generation of its windmills and also from solar division. The Assessing Officer asked the assessee to explain as to why the said claim of deduction u/s 80IA(4) of the Act should not be disallowed in view of the provisions of section 80IA(5) of the Act. The assessee in response to the same filed a detailed reply justifying the claim of deduction u/s 80IA(4) of the Act. It was submitted that similar issue has already been decided by the Tribunal in assessee's own case wherein it has been held that the deduction u/s 80IA(4) of the Act is available to each undertaking separately and need not consider for the assessee as a whole. Further, in various other decisions, this issue has been decided in favour of the assessee.
3IT(SS)A Nos.26 to 31/PUN/2024
4. However, the Assessing Officer was not satisfied with the arguments advanced by the assessee and disallowed the claim of deduction of Rs.31,82,48,769/- u/s 80IA(4) of the Act by observing as under:
"4.5.1 Assessee has relied on various cases laws namely, Continental Warehousing Corporation, Chetan Das Lachman Das, Canara Housing Development Company and M/s D J Malpani in support of its claim that for the AY 2015-16 the issue regarding claim of deduction u/s 801A cannot be again raised in the absence of any incriminating evidence found as a result of search. Accordingly, in the absence of any incriminating evidence, no disallowance u/s 801A can be made In this regard it is to state that the issue is yet to be finally settled in the Supreme Court and has not attained finality. In the case of Pr. CIT v Gahoi Foods (P) Ltd reported in 117 taxmann.com 118(SC), on the issue where High Court upheld Tribunal's order deleting addition made u/s 153A by taking a view that no incriminating documents during course of search were found, SLP filed against said order has been granted by Hon'ble Supreme Court in its order dated 24.01.2020. SLP has also been admitted on the similar issue, in the case of Pr. CIT V Devi Dass Gargvide Hon'ble Supreme Court's Order dated 16.06.2019 reported in 114 taxmann. 552(SC). In view of these facts submission of the assessee is not acceptable and hence rejected 4.5.2 As regards claim of the assessee in respect of treatment of each windmill project as separate undertaking and to allow deduction u/s 80IA(4)(iv) of the Act, it is pertinent to note here that, there is no mandate u/s 80IA to treat each windmill project as 'separate undertaking of the assessee. Section 801A envisages only two classification of the business of the assessee viz. eligible business [as per explicit wording of section 80IA(5)) and non eligible business. Regarding assessee's claim on merits treating each of the unit as separate undertaking and not entire power generation business as one undertaking, assessee has also relied on various case laws. However, it is seen that this issue has also not attained finality and Hon'ble Supreme Court has not yet decided the issue on merits. Further, the department in its own case for AY 2013-14 is in appeal before Hon'ble Bombay High Court on similar issue and issue has not been finally adjudicated and still alive. As such, request of assessee to treat each windmill project as separate undertaking and thereby to allow the claim of deduction thereupon u/s 80IA(4) is untenable and accordingly claim of deduction u/s 80IA is required to be disallowed.
4.5.3 As per section 80IA(5) profits and gains from 'Eligible Business for the purpose of determining the quantum of deduction is required to be computed as if such eligible business were the only source of income of the assessee during the year. During the year assessee from Eligible Business' of Power Generation/Renewable Energy, has gross income which is a Loss of Rs. (-) 32,43,79,000/- The deduction can be allowed only when there is positive income. Hence, question of allowing deduction u/s 80IA(4) of the Act does not arise. Therefore claim of deduction made u/s 80IA(4) of Rs. 31,82,48,769/- is not 4 IT(SS)A Nos.26 to 31/PUN/2024 allowable. In view of the above discussion, entire claim of assessee u/s 80IA(4) of the Act amounting to Rs.31,82,48,769/- is disallowed and is added back to the total income of the assessee. Penalty proceedings u/s 271(1)(c) of the Act are initiated separately for furnishing inaccurate particulars of income.
[Rs. 31,82,48,769/-]"
5. In appeal, the CIT(A) allowed the claim of deduction by observing as under:
"8. In brief, as per the assessing officer, there is no mandate u/s. 80IA to treat each wind mill project as 'separate undertaking' of the Assessee and that the Section envisages only two classifications of business i.e. 'eligible business' and 'non-eligible business'. The Assessing Officer therefore, held that the request of the Assessee to treat each Wind Mill project as 'separate undertaking' and thereby allow the claim of deduction u/s. 80IA(4) of the I.T. Act, is untenable. As per assessing officer, the deduction u/s. 80IA(4) has to be necessarily computed by considering all Wind Mills/Solar power plants of the Assessee as a 'single unified project which constitutes 'eligible business'. The Assessing Officer observed that there was an overall loss in Power Generation Business, and he therefore, rejected the claim of the Assessee for deduction u/s. 80IA(4) of the 1. T. Act.
9. On the other hand, the appellant has claimed that all the undertakings have been set up at different locations and they function independently from each other. It is also submitted that independent power purchase agreements in respect of each undertaking have been entered into with the various State Electricity Boards. Further, it is submitted that the assessee has maintained separate books of accounts for these undertakings and it has furnished separate audit report in Form No.10CCB along with separate profit and loss accounts and balance sheet in respect of these undertakings. The appellant has further submitted that the word 'an' used in section 80IA(4) refers to a singular and without anything contrary in the Act, the clear language used by the statute cannot be construed to mean anything else. The appellant has further submitted that the term 'eligible business referred to in sub-section (5) of section 801A refers to the 'eligible business' mentioned in sub-section (1) of 801A and there is nothing in the section which prohibits the assessee from claiming the deduction in respect of individual undertakings.
10. The appellant has further submitted that an identical issue was involved in appellant's own case for earlier assessment years wherein the Hon'ble ITAT, Pune Bench has decided the issue in assessee's favour. The appellant has also relied on various other decisions of different High Courts and ITAT, as mentioned in its written submission.
11. During the appellate proceedings, the appellant was asked to furnish the unit-wise Profit & loss and claim of deduction u/s 80IA for each unit which has been submitted by the appellant, and is tabulated as under-
5
IT(SS)A Nos.26 to 31/PUN/2024
Sr. Address of the site Year of Initial year of Income from
No. / Undertaking Installation claim of operation claim of
(FY) deduction u/s deduction u/s
80IA(4) (AY) 80IA(4)
1 Kas (MH) 3.0 2010-11 2013-14 1,06,37,621 Wind
MW
2 Dhule I (MH) 7.5 2005-06 2011-12 3,64,89,415 Wind
MW
3 Dhule II (MH) 2005-06 2011-12 1,41,24,881 Wind
2.50 MW
4 Dhule III (MH) 2006-07 2008-09 2,85,30,550 Wind
5.0 MW
5 Kudrekonda (KT) 2008-09 2013-14 2,07,79,968 Wind
3.00 MW
6 Samana I (GJ) 2008-09 2013-14 76,36,420 Wind
1.60 MW
7 Samana II (GJ) 2009-10 2011-12 95,82,184 Wind
1.60 MW
8 Akal (RJ) 7.50 2010-11 2013-14 4,66,10,454 Wind
MW
9 Maloshi (MH) 2011-12 2013-14 1,11,23,235 Wind
2.50 MW
10 RKB (RJ) 4.50 2011-12 2014-15 3,34,66,519 Wind
MW
11 Jath (MH) 4.25 2011-12 2014-15 2,79,09.005 Wind
MW
12 Gothane (MH) 2013-14 2015-16 4,27,74,557 Wind
24.0 MW
13 Lumbania (RJ) 2012-13 2015-16 2,85,84,157 Solar
13.0 MW
Total 31,82,48,769/-
14 Vaspeth (MH) 20 2013-14 2018-19 No 80IA Wind
MW deduction claimed
for the year.
There was a loss
of Rs.
10,67,50,411
during the year
15 Telangana (16.25 2014-15 2018-19 No 80IA Solar
MW) deduction claimed
for the year.
There was a loss
of Rs.
53,84,05,892
during the year
12. It is further seen that the assessing officer has not disputed that the above- mentioned wind-mills as well as solar plants are otherwise eligible for deduction u/s 80IA(4) of the Act. The only reason for disallowing the claim is that as per assessing officer, all the above-mentioned units should be aggregated and considered as a 'single eligible business'. The issue as to whether each windmill is required to be treated as 'separate undertaking' or all the windmills should be aggregated, has been examined by the Hon'ble ITAT Pune on various occasions. Some of these decisions are as under:
12.1 In the case of M/s J-Sons Foundry Pvt Ltd in ITA No.1600/PUN/2011 for AY 2008-09, the Hon'ble Tribunal held that each windmill should be considered as separate undertaking eligible for deduction u/s 801A and the deduction should be 6 IT(SS)A Nos.26 to 31/PUN/2024 computed independently for each unit and not on consolidated basis. The relevant portion of this decision is as under:
15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations i.e. in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses.
Though the first wind mill was erected and commissioned in the A.Y. 2002- 03, there were consistent losses up to the AY 2007-08 and assessee did not opt for claiming the deduction u/s 80IA(2) of the Act. So far as A.Y. 2008- 09 is concerned, assessee opted for claiming the deduction u/s 801A(2) treating the said assessment year (A.Y.) as an initial assessment year as there was the profit in Satara wind mill but losses in the Tamil Nadu wind mill and Panchgani wind mill. If we look at the scheme of the section 801A(2), it speaks about the "undertaking" or "enterprise" and not the business of the assessee. Admittedly, three wind mills at the 3 locations are independently operated and the financial results are separately worked out. As per sub-sec. (5) of section 80IA, for computing the deduction u/s 80IA(2), the eligible business is to be treated as the only source of income. Sub- sec. (5) of section 801A has been explained by the Hon'ble High Court and Kerala in the case of CIT Vs. Accel Transmatic Systems Ltd. 230 CTR 206 (Ker) which has been followed by the Ld. CIT(A). The term "business" used in sub-sec.(5) section 80IA in our humble opinion is confined to the independent undertaking and cannot get merged with the other businesses In Sec. 80IA(2), for claiming deduction "undertaking" or "Enterprise" as such is to be considered. Sec. 80IA(2) is charging sections for determining basic eligibility and there is no mention of word "business" Sub-sec.(5) of Sec.80IA speaks of business but same is to be construed as business of "undertaking" or "Enterprise" as referred to in Sub sec. (2) of Sec. 80IA. It is well settled principle of interpretation of statutory provision that they are to be interpreted harmoniously to make workable to give intended results. Hence, as rightly held by Ld CIT(A) term "business" used in sec. 80IA(5) is to be construed and understood to mean "business" or "undertaking or enterprise. In our opinion, the Ld. CIT(A) in his well-reasoned order has rightly held that every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profits. Another unit engaged in the same business for the purpose of computing the deduction u/s 801A. We find no reason to interfere with the findings of the Ld. CIT(A) on this issue. Accordingly, the same are confirmed and grounds taken by the revenue are dismissed.
(emphasis supplied) 12.2 An identical issue was involved in appellant's own case i.e. D.J. Malpani vs ACIT in ITA Nos 1151 to 1154/PN/2013 for Ays. 2007-08 to 2010-11 wherein following the decision in the case of J-Sons Foundry (supra), the Hon'ble Tribunal held that the deduction should be computed independently for each unit and not on 7 IT(SS)A Nos.26 to 31/PUN/2024 consolidated basis. The relevant portion of this decision for A.Y. 2007-08, is as under-
57. After hearing both the sides, we find the Coordinate Bench of the Tribunal in the case of J-Sons Foundry Pvt Ltd. (Supra) while dismissing the grounds raised by the Revenue on this issue has observed as under:
"15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations ie. in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses. Though the first wind mill was erected and commissioned in the A.Y. 2002- 03, there were consistent losses up to the A.Y. 2007-08 and assessee did not opt for claiming the deduction u/s 80IA(2) of the Act. So far as A.Y. 2008-09 is concerned, assessee opted for claiming the deduction u/s 80IA(2) treating the said assessment year (A.Y.) as an initial assessment year as there was the profit in Satara wind mill but losses in the Tamil Nadu wind mill and Panchgani wind mill. If we look at the scheme of the section 80IA(2), it speaks about the "undertaking" or "enterprise" and not the business of the assessee. Admittedly, three wind mills at the 3 locations are independently operated and the financial results are separately worked out. As per sub-sec. (5) of section 801A, for computing the deduction u/s 80IA(2), the eligible business is to be treated as the only source of income. Sub-sec (5) of section 80IA has been explained by the Hon'ble High Court and Kerala in the case of CIT Vs. Accel Transmatic Systems Ltd. 230 CTR 206 (Ker) which has been followed by the Ld. CIT(A). The term "business" used in sub-sec (5) section 801A in our humble opinion is confined to the independent undertaking and cannot get merged with the other businesses. In Sec. 80IA(2), for claiming deduction "undertaking or "Enterprise"
as such is to be considered. Sec. 80IA(2) is charging sections for determining basic eligibility and there is no mention of word "business" Sub-sec (5) of Sec 80IA speaks of business but same is to be construed as business of "undertaking" or "Enterprise" as referred to in Sub-sec. (2) of Sec B01A, it is well settled principle of interpretation of statutory provision that they are to be interpreted harmoniously to make workable to give intended results. Hence, as rightly held by Ld. CIT(A) term "business" used in sec.80IA(5) is to be construed and understood to mean "business" or "undertaking or enterprise In our opinion, the Ld.CIT(A) in his well reasoned order has rightly held that every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profits. Another unit engaged in the same business for the purpose of computing the deduction u/s 80IA. We find no 8 IT(SS)A Nos.26 to 31/PUN/2024 reason to interfere with the findings of the Ld.CIT(A) on this issue. Accordingly, the same are confirmed and grounds taken by the Revenue are dismissed."
58. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (Supra) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.801A and therefore deduction u/s.801A(4) should have been computed independently for each phase and not on consolidated basis. The grounds raised by the assessee on this issue is accordingly allowed.
(emphasis supplied) 12.3 The above decision has been followed by the Hon'ble ITAT, Pune while deciding appeals in the case of M/s D.J. Malpani for subsequent assessment years i.e. AYs 2011-128 2012-13 in ITA No. 1467 & 1468/PUN/2015 dated 16.10.2017 and for AY 2013-14 in ITA No. 1374/PUN/2017 dated 01/08/2019. Thus, in appellant's own case, the issue stands decided in appellant's favour for A.Ys. 2007-08 to 2013-14.
12.4 In the case of M/s LB Kunjir for A.Ys. 2012-13 to 2014-15 in ITA No. 76/PUN/2019, ITA No. 2614/PUN/2017 and ITA No. 07/PUN/2018, the Hon'ble ITAT has allowed the claim, by observing as under-
7. The assessee has claimed deduction u/s 801A(4) separately for each unit of windmill it is an undisputed fact that the date of commencement of operation of each windmill is different. The stand of the Revenue is that instead of claiming deduction uls. 801A(4) on each windmill as separate unit, the assessee should have computed deduction on all the windmills as single undertaking.
We find that the issue whether deduction u/s 80IA(4) is to be computed on each windmill unit separately or on consolidated basis was considered by the Co-ordinate Bench in the case of M/s. D.J. Malpani Vs. ACIT (supra). The Tribunal after considering the earlier decision rendered in the case of Dy. Commissioner of Income Tax Vs. J-Sons Foundry Pvt. Ltd. (supra) concluded as under:
"58. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (Supra) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.80IA and therefore deduction w/s. 80IA(4) should have been computed independently for each phase and not on consolidated basis. The grounds raised by the assessee on this issue is accordingly allowed."
8. Since, the issue has already been considered by the Tribunal and has held that each unit of windmill has to be considered separately for 9 IT(SS)A Nos.26 to 31/PUN/2024 computing deduction u/s. 80IA(4), we see no reason to deviate from the view already taken. No contrary judgment has been placed on record before us by the Revenue. The Id. DR has pointed that the Department has filed appeal against the Tribunal's decision in the case of Ms. D.J. Malpani Vs. ACIT (supra), however, no order by the Hon'ble High Court either staying or reversing the aforesaid decision of Tribunal has been furnished by the Ld. DR.
9. We do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in allowing assessee's claim of deduction u/s. 801A(4) considering each windmill as separate unit for allowing deduction u/s. 801A(4) of the Act. Hence, the impugned order is upheld and the appeal of Revenue is dismissed.
(emphasis supplied) 12.5 Thus, the jurisdictional Tribunal has consistently held that the deduction u/s 80IA should be computed independently for each unit and not on consolidated basis.
13.1 The Hon'ble Karnataka High Court in the case of CIT vs Karnataka Power Corporation Limited 127 taxmann.com 282 (Karnataka) held that the assessee is entitled to deduction u/s 801A without setting-off of loss of loss-making units, against income of its profit-making units.
13.2 The same principle has been laid down by Hon'ble Bombay High Court in the case of CIT vs Maharashtra Hybrid Seeds Co Ltd [2021] 133 taxmann.com 43 (Bombay) wherein the jurisdictional High Court held that deduction under section 80-1A has to be computed unit-wise and not for business as a whole, therefore, assessee-company was to be allowed deduction under section 80-1A in respect of its two eligible units even if it had claimed loss under head of its total business income. The relevant portion of this judgement is as under:-
"Where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking, there shall be allowed, in computing the total income of the assessee, a deduction from "such profits and gains of an amount equal to the percentage specified in sub-section (5) and for such number of assessment years specified in sub- section (6). Therefore, it provides for a deduction from "such profits and gains from any business of an Industrial undertaking where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking. It is quite clear that each industry must be or each unit must be considered on its own working only when adjudging its entitlement to the deduction under section 80-1A. It cannot be allowed to suffer because it keeps company with some other industry or unit in the hands of the assessee. In the application of section 80-1A the profits and gains earned by an industry mentioned in that section cannot be reduced by the loss suffered by any other industry or industries owned by 10 IT(SS)A Nos.26 to 31/PUN/2024 the assessee. This view is confirmed by clause (i) (a) of sub-section (5) of section 80-IA"
(emphasis supplied) 13.3 Hon'ble Madras High Court in the case of CIT vs Bannari Amman Sugars Limited[2019] 104 taxmann.com 1 (Madras) held that for the purposes of grant of deduction under section 80IA of the Act, each unit has to be seen independently as separate and distinct from each other.
13.4 Similar view was taken by Hon'ble Delhi High Court in the case of CIT vs Dewan Kraft System Pvt Ltd (2007) 160 Taxman 343 (Del), where the Hon'ble Delhi High Court, after considering relevant provisions of the Act, held that for the purpose of deduction u/s 801A, each unit shall be treated as independent unit and same has to be treated as only source of income of the assessee for the purpose of computing deduction u/s 80IA of the Act. The relevant findings of the Hon'ble Court are as under:-
13. Perusal of the above provision shows that it is a distinct and separate deeming provision which lays down the special method of computing the profits and gains entitled to deduction under section 80-1A of the Act.
Moreover, this provision is of overriding nature providing specifically that during each of the assessment years in the tax holiday, period in which the assessee is entitled to deduction under section 80-1A of the Act, this provision will be applied as if the industrial unit is an independent unit and is the one and only source of income possessed by the assessee.
14. It is clear that while computing deduction under section 80-IA of the Income-tax Act, 1961, the profits and gains of Kalamb unit for the purpose of determining the quantum of deduction under section 80-IA(5) of the Act is to be computed if such eligible business of the said unit is the only source of income of the assessee The Assessing Officer mixed the profits of the Kalamb unit with the profits of units at Delhi and NOIDA and, thus, he erroneously restricted the deduction to the extent of business income and this was done by him in total disregard of the previsions of sub-section (7) of section 80-1A of the Act as mentioned above.
15. Thus, the Kalamb unit being the only unit of the assessee eligible for deduction under section 80-IA of the Act is to be treated as an independent unit and the same is to be treated as the only source of income for assessee for the purpose of computing deduction under section 80-IA of the Act. The deduction claimed by the assessee under section 80-IA of the Act, thus, is in accordance with the said provisions and as such we find that there is no infirmity in the impugned order passed by the Income-tax Appellate Tribunal.
14. An identical issue arose in the case of Marudhar Fashions ITA No. 6967, 6968 & 6969/MUM/2017 wherein the Hon'ble Mumbai Tribunal held that the deduction u/s 801A should be computed independently for each unit and not on consolidated basis. The relevant portion of this decision is as under:
11IT(SS)A Nos.26 to 31/PUN/2024
8. We have heard both the parties, perused the materials available on record and gone through the orders of authorities below. There is no dispute with regard to the fact that the assessee is eligible for deduction u/s 80IA in respect of five windmills. The only dispute is with regard to whether each windmill constitute a separate undertaking and the profit or loss of that undertaking alone will be considered for the purpose of deduction u/s 80IA or the sum of profit or loss of all five undertakings together is eligible for deduction u/s 80IA. The co-ordinate bench of ITAT, Mumbai Bench "C"
in the case of Punit Construction Co vs JCIT (supra) has considered an identical issue in light of number of windmills and after considering relevant provisions of the Act, including sub section (5) of section 80IA, held that deduction has to be given unit-wise without considering profit or loss of other eligible units The relevant observations of the Tribunal are as under:-
"10. We have heard both the parties, perused the material available on record and gone through the orders of authorities below. We have also carefully considered provisions of section 80IA and case laws relied upon by both parties. The facts with regard to eligibility for claiming deduction under section 80IA has not been disputed by the lower authorities. The lower authorities had admitted that the assessee is eligible for claiming deduction under section 801A in respect of power generation business though setting off of windmills. The only dispute is with regard to computation of quantum of deduction. Whether the profits and gains of the eligible business as per the words of section 80IA(5) have to be considered unit-wise or as a total eligible business comprising of profits of all units. The provisions of section 80IA(5) provided mechanism for determination of quantum of deduction from eligible business and as per which the eligible business shall be considered as if the only source of income of the assessee during the initial year and every subsequent AYs. Therefore, one has to see what eligible business is whether it is the total business as a whole or each unit or undertaking. No doubt the provision of section 80IA speaks about profit and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. Sub-section (5) speaks about eligible business. Now the controversy to be resolved is whether the power generation segment of the assessee is an eligible business or each windmill is a separate unit eligible for deduction without considering profit or loss of other windmill The assessee claims that each windmill shall be considered as an eligible unit for the purpose of determination of deduction The assessee also cited certain judicial precedents in support of its arguments.
11. To understand the eligibility for deduction under section 80IA of the Act. the questions that need to be addresses are whether the gross total income of the assessee is positive, whether the assessee has an eligible business and whether different units in such eligible business are to be taken as one eligible business. To ascertain gross 12 IT(SS)A Nos.26 to 31/PUN/2024 total income, the first step would be to compute income under each head of income separately. In this case admittedly, the assessee does not have any other head of income except income from Business or Profession. The assessee has only two segment of business income ie. construction business and power generation business. Admittedly, construction business is not eligible business for claiming deduction under section 80IA, therefore, there is controversy about consolidation of profit from construction business activity. The assessee is having power generation segment through windmills. The assessee has set up five windmills. All the five units are part of power generation segment. Now the question is whether deduction provided under section 80IA shall be given on profits and gains derived from power segment business as the only eligible business or profits and gains derived from each windmills as an eligible business without considering profit or loss of other windmills. There is no dispute with regard to deduction to be given under chapter VIA against gross total income computed from all source of income. Even various decisions of the Hon'ble Supreme Court, including in the case of CIT vs. Liberty India (supra) have clearly held that special deduction under chapter VIA has to be computed on the gross total income and such gross total income has to be computed segment wise business after allowing all the deduction allowable under section 32 to 430. The Hon'ble Bombay High Court in the case of Plastiblends India Ltd. Va ACIT (2009) 185 Taxman 187 after considering the ratio of Hon'ble Supreme Court in the case of Liberty India (supra) held that there has to be profit in the eligible business and such eligible business can be any of the business as referred to in sub-section 3(ii) to 11(a) of section 80IA of the Act 12. In this case, admittedly the assessee is having two segments of business le. one is power generation through five windmills which is eligible business and another is construction segment. The assessee has generated profit from two windmills and incurred losses from three windmills. The assessee also derived profit from construction business. The gross total income computed from two segment of business is positive. If you consider each segment of business stand alone, then there is a loss from the power generation segment, it profit or losses of all five windmills are consolidated. The assessee has considered each wind Mill as a separate unit eligible for deduction under section 80IA, without considering profit or loss of other windmills and accordingly claimed deduction towards profit generated from two windmills If one considered power generation business as one eligible business, certainly the assessee is not eligible for deduction under section 801A, as from power generation business the assessee has incurred losses. If you strictly apply the provisions of section 80IA(5), the words used therein are clearly states that each eligible business shall be considered as the only source of income of the assessee for the purpose of determination of deduction. If, one goes by the words used in sub section (5), of section 801A, then there is logic in the unit wise deduction claimed 13 IT(SS)A Nos.26 to 31/PUN/2024 by the assessee, for the reason that deductions under chapter VIA is a incentive based deduction and period specific. The provisions provides for deduction of profits and gains of eligible business for a certain period starting from the period of initial claim. To understand the issue in a better manner, let us take an example. The assessee is in to the business of manufacturing products from different units located at different places. Meantime, the Govt. has announced incentives for setting up units in some places and within such period. The assessee has set up one eligible unit and starts claiming deduction under that provision Next year, the assessee has set up one more eligible unit at different place and starts claiming deduction from that year and so on. Now both units are eligible units. The period of deduction specified under the act is 10 years for eligible units. Unit one is claiming deduction from initial assessment year and it may end up in some period. Unit two is claiming deduction from next year and it may end up in different year. If one takes initial assessment year from which unit one claims deduction for ten years, the assessee may lose benefit of deduction for one year for unit two, because it has commenced deduction from next year. If you take initial year of claim from the date on which unit two starts claiming deduction, then the assessee may get the benefit for more than 10 years for unit one, if you consider both units as one eligible business and profit or loss of both units is consolidated. This may not be the true intention of the legislature and for that reason the legislature consciously used the word undertaking or unit so as to give a deduction towards eligible units, in a situation where, the assessee is having more than one units in different locations, out of which one unit may be an eligible unit and another unit may not be eligible unit and also one unit may get deduction for different period and another unit may get deduction for different period. This is why the courts and tribunals has consistently held that deduction provided u/s 801A has to be given unit wise without considering profit or loss of other units. This legal proposition is strengthened by the decision of ITAT. Ahmadabad, special bench in the case of CIT vs. Goldmine Shares and Finance Pvt. Ltd."
9. A similar issue has been considered by Hon'ble. Delhi High Court in the case of CIT vs Dewan Kraft System Pvt Ltd (2007) 160 Taxman 343 (Del), where the Hon'ble Delhi High Court, after considering relevant provisions of the Act, held that for the purpose of deduction u/s 80IA, each unit shall be treated as independent unit and same has to be treated as only source of income of the assessee for the purpose of computing deduction u/s 801A of the Act. The relevant findings of the Hon'ble Court are as under:-
"Section 80-IA(7) shows that it is a distinct and separate deeming provision which lays down the special method of computing the profits and gains entitled to deduction under section 80-IA. Moreover, this provision is of overriding nature providing specifically that during each of the assessment years in the tax 14 IT(SS)A Nos.26 to 31/PUN/2024 holiday, period in which the assessee is entitled to deduction under section 80-IA, this provision will be applied as if the industrial unit is an independent unit and is the one and only source of income possessed by the assessee. [Para 13 J If is dear that while computing deduction under section 80-IA, the profits and gains of Kalamb unit for the purpose of determining the quantum of deduction under section 80-IA(5) were to be computed as if such eligible business of the said unit was the only source of income of the assessee. The Assessing Officer mixed (he profits of the Kalamb unit with the profits of units at Delhi and NOIDA and, thus, he erroneously restricted the deduction to the extent of business income and that was done by him as total disregard of the provisions of subsection (7) of section 80-1A [Para 14] Thus, the Kalamb unit, being the only unit of the assessee eligible for deduction under section 50-1A, was to be treated as an independent unit and the same was to be treated as the only source of income for the assessee for the purpose of computing deduction under section 80- IA. The deduction claimed by the assessee under section 80-JA, thus, was in accordance with said provisions and as such there was no
10. In this view of the matter and being consistent with the view taken by the co-ordinate bench, which is further supported by the decision of Hon'ble Delhi High Court in the case of CIT vs Dewan Kraft Systems Pvt Ltd (supra), we are of the considered view that the Ld. CIT(A) was right in allowing the benefit of deduction u/s 80IA in respect of each unit without setting off of loss incurred by other eligible units. Hence, we are inclined to uphold the findings of Ld. CIT(A) and dismiss appeal filed by the revenue.
(emphasis supplied)
15. It is further seen that for A.Y. 2014-15 in appellant's own case, the assessing officer has accepted the methodology adopted by the appellant and allowed the claim of deduction u/s 80IA(4) while completing the assessment u/s 143(3) of the Act on 30 12.2016. It has also been submitted by the appellant that while completing original assessment u/s 143(3) for AY 2017-18 on 24/12/2019 in appellant's own case, the assessing officer allowed the claim of deduction u/s 80IA(4) on similar facts and no disallowance was made. The appellant has further submitted that similar methodology has been adopted by its group concern namely M/s Giriraj Enterprises and for A.Ys. 2013-14 and 2014-15 and the assessing officer has accepted the methodology for computing the deduction and no disallowance u/s 80IA(4) was made while completing assessments u/s 143(3) of the Act.
16. The above discussion suggests that Hon'ble Courts as well as Hon'ble Tribunal on various occasions have held that each unit should be considered as separate undertaking eligible for deduction u/s 801A and the deduction should be computed independently for each unit and not on consolidated basis, as done by the assessing officer. Further, as discussed above, in appellant's own case for AYs 15 IT(SS)A Nos.26 to 31/PUN/2024 2007-08 to 2013-14, the Hon'ble Tribunal has decided the issue under consideration, in favour of appellant. It is incumbent upon me to follow the decision of Hon'ble ITAT in appellant's own case for earlier years. Following the decision of Hon'ble Tribunal in appellant's own case, it is held that each wind- mill/solar plant should be considered as separate undertaking eligible for deduction u/s 801A and the deduction should be computed independently for each unit and not on consolidated basis. Accordingly, the addition of Rs.31,82,48,769/- made by the assessing officer is directed to be deleted. The grounds no. 3 to 7 raised by the appellant are ALLOWED."
6. Aggrieved with such order of the CIT(A), the Revenue is in appeal before the Tribunal by raising the following grounds:
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting addition of Rs 31,82,48,769/ on account of disallowance of deduction u/s 80IA(4) of the Act without appreciating the fact that during the year, gross income of the assessee from 'Eligible Business' of Power Generation/Renewable Energy was a loss of Rs. (-) 32,43,79,000/- and the deduction can be allowed only when there is positive income.
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the fact that the combined reading of section 80IA(4) & 80IA(5) of the Act makes it amply clear that the deduction is with reference to the profits derived from eligible business of the assessee and not with reference to the profits derived from every unit engaged in the eligible business.
3. On the facts and circumstances of the case and in law, the Ld. CIT(A) decided the appeal in favour of assessee without appreciating the facts that there is no mandate u/s 80IA to treat each windmill project as 'separate undertaking' of the assessee and Section 801A envisages only two classification of the business of the assessee viz. 'eligible business [as per explicit wording of section 80IA(5)] and non-eligible business
7. The Ld. DR relying on the order of the Assessing Officer submitted that the matter is pending before the Hon'ble High Court and therefore, the order of the Ld. CIT(A) deleting the addition is not justified in allowing the claim of the assessee.
16IT(SS)A Nos.26 to 31/PUN/2024
8. The Ld. Counsel for the assessee on the other hand while relying on the order of the CIT(A) submitted that similar disallowances were made in assessment years 2007-08 to 2010-11 and the claim of the assessee that each windmill is to be considered as a separate undertaking has been accepted by the Tribunal. Further, for assessment years 2011-12 and 2012-13 also, similar view has been taken by the Tribunal. He submitted that for assessment year 2013-14, the Tribunal has dismissed the appeal filed by the Revenue on this issue. The Assessing Officer in the order passed by him u/s 143(3) of the Act for assessment year 2014-15 has himself allowed the claim of deduction u/s 80IA(4) of the Act. Therefore, the contention of the Assessing Officer that all the windmills should be considered as one undertaking is not justified.
9. Referring to the decision of the Co-ordinate Bench of the Tribunal in the case of M/s. L.B. Kunjir vs. DCIT vide ITA No.1255/PUN/2023, order dated 26.03.2024 for assessment year 2020-21, he submitted that under identical circumstances the Tribunal has dismissed the appeal filed by the Revenue challenging the order of the CIT(A) in deleting the disallowance made u/s 80IA(4) of the Act.
10. So far as the applicability of provisions of section 80IA(5) of the Act are concerned, he submitted that the Assessing Officer has considered the year of installation as initial assessment year while the assessee has claimed that the initial assessment year is the year in which the deduction is claimed by the assessee. He 17 IT(SS)A Nos.26 to 31/PUN/2024 submitted that the unabsorbed losses and depreciation of each windmill has already been set off against the other business income of the assessee.
11. Referring to the CBDT Circular No.1/2016, dated 15.02.2016, he submitted that the CBDT has clarified that the initial assessment year would mean the year in which the assessee has claimed the deduction for the first time and not the year in which the windmill is installed. This view has already been taken by the Tribunal in the earlier years in assessee's own case. He accordingly submitted that since the CIT(A) has followed the order of the Tribunal for earlier assessment years, the same should be upheld and the grounds raised by the Revenue should be dismissed. He also relied on the following decisions:
1) M/s. D.J. Malpani vs. ACIT vide ITA Nos.1148 to 1154/PN/2013 and ACIT vs. M/s. Damodar Jagannath Malpani vide ITA Nos.1183 to 1188/PN/2013, order dated 30.10.2015
2) M/s. Damodar Jagannath Malpani vs. DCIT vide ITA Nos.1382 & 1383/PUN/2015 and ACIT vs. M/s. Damodar Jagannath Malpani vide ITA Nos.1467 & 1468/PUN/2015, order dated 16.10.2017
3) ACIT vs. M/s. Damodar Jagannath Malpani vide ITA No.1374/PUN/2017, order dated 01.08.2019
4) M/s. L.B. Kunjir vs. DCIT vide ITA Nos.417 & 418/PUN/2024, DCIT vs. M/s.
L.B. Kunjir vide ITA Nos.1046 & 1088/PUN/2024 and DCIT vs. M/s. L.B. Kunjir vide ITA No.240/PUN/2024, order dated 05.07.2024
5) M/s. J-Sons Foundry Pvt. Ltd. vs. DCIT vide ITA No.815/PN/2011, M/s. J-Sons Foundry Pvt. Ltd. vs. JCIT vide ITA No.1494/PUN/2011 and DCIT vs. J-Sons Foundry Pvt. Ltd. vide ITA Nos.891 & 1600/PN/2011, order dated 30.01.2013
6) The decision of the Hon'ble High Court of Karnataka in the case of CIT & Anr. vs. M/s. Karnataka Power Corporation Ltd. vide I.T.A. 778/2009, judgment dated 19.01.2015
7) The decision of the Hon'ble Bombay High Court in the case of CIT vs. Maharashtra Hybrid Seeds Co. Ltd. (2021) 133 taxmann.com 43 (Bom) 18 IT(SS)A Nos.26 to 31/PUN/2024
12. We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case denied the claim of deduction u/s 80IA(4) of the Act on the ground that there is no mandate u/s 80IA(4) of the Act to treat each windmill as separate undertaking of the assessee. According to him, although the Tribunal has decided the issue in favour of the assessee, however, the issue has not attained finality and the Hon'ble Supreme Court has not yet decided the issue on merit. Further, the Department in assessee's own case for assessment year 2013-14 is in appeal before the Hon'ble Bombay High Court and the matter is still pending. He, therefore, rejected the claim of the assessee to treat each windmill project as a separate undertaking and disallowed the claim of deduction u/s 80IA(4) of the Act. The Assessing Officer further held that as per provisions of section 80IA(5) of the Act, profits and gains from eligible business for the purpose of determining the quantum of deduction is required to be computed as if such eligible business is only the source of income of the assessee during the year. Since, during the year under consideration, the income from eligible business of power generation / renewal energy has gross income which is an amount of Rs.32,43,79,000/-, the deduction can be allowed only when there is positive income. He, therefore, held that the question of allowing the deduction u/s 80IA(4) does not arise.
19IT(SS)A Nos.26 to 31/PUN/2024
13. We find the CIT(A) allowed the claim of the assessee, the reasons of which have already been reproduced in the preceding paragraphs. We do not find any infirmity in the order of the CIT(A) on this issue. Admittedly, the issue has already been decided by the Tribunal in assessee's own case for various assessment years. We find the Tribunal vide ITA No.1374/PUN/2017, order dated 01.08.2019 for assessment year 2013-14 while allowing the claim of deduction u/s 80IA(4) of the Act has observed as under:
"6. We have heard the rival submissions and perused the material on record. The issue in the present ground is with respect to denial of claim of deduction u/s 80IA(4) of the Act. The claim of deduction was denied by AO but when the matter was carried before Ld.CIT(A), she following the order of her predecessor in assessee's own case for A.Ys. 2011-12 and 2012-13 allowed the claim of assessee. We find that identical issue arose in the case of assessee in A.Ys. 2011-12 and 2012-13 before ITAT in ITA Nos. 1382 & 1383/PUN/2015 vide order dt. 16.10.2017 (supra) and the issue was decided by the Co-ordinate Bench of the Tribunal in assessee's favour by observing as under:
6. We perused the facts of the case as well as legal proposition emanating from the order of Tribunal in assessee's own case (supra.) and are found relevant and we proceed to extract the same as under:
54. Ground of appeal No. 7 relates to methodology of computation of deduction u/s 801A (4) as adopted by the AO by considering difference phases of windmills as separate undertaking. The Ld. CIT(A) following his order for A.Y.2005-06 held that in a fresh claim made by the assessee unless it is supported by some incriminating material found during the course of search the claim cannot be entertained during proceedings u/s.153A. He accordingly dismissed the above ground raised by the assessee.
55. The Id. Counsel for the assessee referring to the decision of the Pune Bench of the Tribunal in the case of J. Sons Foundry Pvt. Ltd.
Vs. DCIT and vice versa vide consolidated order dated 30.01.2013 for A.Y.2007-08 and 2008-09 he submitted that the Tribunal in the said decision held that each windmill is to be considerate as a separate undertaking.
56. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A).
57. After hearing both the sides, we find the Coordinate Bench of the Tribunal in the case of J. Sons Foundry Pvt. Ltd. (supra) while 20 IT(SS)A Nos.26 to 31/PUN/2024 dismissing the grounds raised by the Revenue on this issue has observed as under:
"15. Against the decision of the Ld. CIT(A), the Revenue is in appeal before us. We have heard the rival submissions of the parties and perused the record. Admittedly, the assessee is power general through the wind mills at 3 different locations ie in Tamilnadu, Panchgani and Satara. The wind mills are commissioned and erected in different assessment years as noted by the authorities below. Assessee is maintaining separate books of accounts in respect of 3 wind mills and working out the profit or losses. Though the first wind mill was erected and commissioned in the A.Y. 2002-03, there were consistent losses up to the A.Y. 2007-08 and assessee did not opt for claiming the deduction u/s 801A(2) of the Act. So far as A.Y. 2008-09 is concerned, assessee opted for claiming the deduction u/s 80IA(2) treating the said assessment year (A.Y.) as an initial assessment year as there was the profit in Satara wind mill but losses in the Tamil Nadu wind mill and Panchgani wind mill. If we look at the scheme of the section 80IA(2), it speaks about the "undertaking or "enterprise and not the business of the assessee. Admittedly, three wind mills at the 3 locations are independently operated and the financial results are separately worked out. As per sub-sec. (5) of section 801A, for computing the deduction u/s 80IA(2), the eligible business is to be treated as the only source of income. Sub-sec.(5) of section 801A has been explained by the Hon'ble High Court and Kerala in the case of CIT Vs. Accel Transmatic Systems Ltd. 230 CTR 206 (Ker) which has been followed by the Ld. CIT(A). The term "business" used in sub-sec.(5) section 801A in our humble opinion is confined to the independent undertaking and cannot get merged with the other businesses. In Sec. 80IA(2), for claiming deduction undertaking" or "Enterprise" as such is to be considered. Sec 80LAC) is charging sections for determining basic eligibility and there is no mention of word business Sub-sec (5) of Sec. 80IA speaks of business but same is to be construed as business of undertaking or Enterprise as referred to in Sub- sec (2) of See 80IA. It is well settled principle of interpretation of slutatory provision that they are to be interpreted Harmoniously to make workable to give intended results. Hence, as rightly held by Ld. CIT(A) term "business" used its sec. 80IA(5) is to be construed and understood to mean "Business" or ITA Νο. 815, 891, 1494 & 1600/PN/2011 Ms. J. Sans Foundry Pvt. Ltd., Sangli 'undertaking or enterprise de our opinion, the Ld. CITIA) in his well reasoned order has rightly held that every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the 21 IT(SS)A Nos.26 to 31/PUN/2024 profit of another unit engaged in the same business for the purpose of computing the deduction u/s 801A. We find no reason to interfere with the findings of the Ld. CIT(A) on this issue. Accordingly, the same are confirmed and grounds taken by the revenue are dismissed.
58. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (supra.) and in absence of any contrary material brought to our notice we hold that each phase of windmill has to be considered as separate undertaking eligible for deduction u/s.801A and therefore deduction u/s.801A(4) should have been computed independently for each phase and mat or consolidated basis. The ground raised by the assessee on this issue is accordingly allowed"
7. Considering the above facts, it is evident that the Tribunal relied on the decision of Coordinate Bench of the Tribunal in the case of J-Sons Foundry Pvt. Ltd Vs. DCIT (supra) for A.Yrs. 2007-08 and 2008-09 order dated 30.01.2013 while grunting relief to the assessee in appeal for the A.Ys. 2007-08 to 2010-11. It is now a settled legal proposition that "every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profit of another unit engaged in the same business for the purpose of computing the deduction u/s 801A Therefore, we are of the opinion that order of the CITA) on this issue is fair and reasonable and it does not call for any interference. Accordingly, ground No. 2 raised by the Revenue in dismissed.
8. The other issue raised in the Ground No. 3 by the Revenue relates to initial assessment year. Regarding this issue, Ld. Counsel submitted that the same issue also stands covered by the order of the Tribunal in the assessee's own case (supra) for A. Yrs 2007-08 to 2010-11 (supra.) Bringing our attention to para 59 to 65 of the order of Tribunal, which is placed at page No. 16 and 18 of the paper book, Ld. Counsel submitted that the Tribunal held the issue in favour of the assessee. As such, the assessee has option to choose the initial assessment year.
9. We have heard both parties and perused the said order of the Tribunal and relevant portion is extracted as under:
"64. After hearing both the sides, use find the issue as to whether initial assessment year u/s.80IA (3) means year of installation of windmill or year in which the claim of deduction u/s.80IA is first made has been decided in favour of the assessee by the decision of the Pune Bench of the Tribunal in the case of Poonawalla Estate Stud & Agro Farm Put. Ltd. following the decision of Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills Pvt. Ltd. has observed as under:
13...............................
....................................
....................................22
IT(SS)A Nos.26 to 31/PUN/2024
65. Respectfully following the decision of the Coordinate Bench of the Tribunal cited (supra) and in absence of any contrary material brought to our notice we hold that the provisions of section 80IA(5) are applicable only from the initial assessment year, i.e. the assessment year in which deduction u/s.80IA was first claimed by the assessee after exercising his option as per the provisions of section 80IA(2) of the Act, The grounds raised by the assessee are accordingly allowed."
10. Considering the above, it is evident that the initial assessment year for the assessee for claiming deduction u/s.80IA (4) r.w.s (5) is the issue adjudicated by the Tribunal in favour of the assessee. While granting relief in para 65 of the Tribunal order, the Tribunal relied on the decision of Coordinate Bench of the Tribunal in the case of Poonawala Estate Stud & Agro Farm Pvt. Ltd. reported in 136 TTJ (Pune) 236 and also following the judgment of Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills Pvt. Ltd reported in 340 ITR 477. As such, Ld. DR could not bring any contrary decision on the issue under consideration. Thus, the initial assessment year constitutes the assessment year in which the deduction u/s.80IA of the Act is first claimed by the assessee after exercising his option as per the provisions of Section 80IA(2) of the Act. Therefore, we are of the opinion that the relief granted by the CIT(A) on this issue does not require any interference. Accordingly, ground No.3 raised by the Revenue is dismissed.
7. Before us, Revenue has not pointed out any distinguishing feature in the facts of the present case and that of assessee's own case in A.Ys. 2011-12 and 2012-13 in ITA Nos. 1382 & 1383/PUN/2015 order dt. 16.10.2017 (supra) nor has placed any material on record to demonstrate that the decision of Pune Tribunal in assessee's own case in A.Ys. 2011-12 and 2012-13 which has been relied upon by Ld.CIT(A) has been set aside / overturned or stayed by the Higher Judicial Forum. In view of the aforesaid facts, we find no reason to interfere with the order of Ld.CIT(A) and thus the grounds of Revenue are dismissed."
14. Similar view has been taken by the Co-ordinate Bench of the Tribunal in the cases of M/s. J-Sons Foundry Pvt. Ltd. vs. DCIT (supra) and m/s. L.B. Kunjir vs. DCIT (supra) and various other decisions. Since the issue has already been decided in favour of the assessee by the decisions of the Co-ordinate Benches of the Tribunal in assessee's own case as well as various other decisions, therefore, merely because the Revenue has not accepted the decision of the Tribunal and has challenged the decision before the Hon'ble High Court which is pending, cannot be 23 IT(SS)A Nos.26 to 31/PUN/2024 the basis for taking a contrary view than the view already taken by the Tribunal in the case of the assessee. We, therefore, uphold the order of the CIT(A) and dismiss the grounds raised by the Revenue.
15. Identical grounds have been raised by the Revenue in ITA Nos.27/PUN/2024 to 31/PUN/2024. We have already decided the issue and the grounds raised in ITA No.26/PUN/2024 have been dismissed. Following similar reasoning, the grounds raised in ITA Nos.27/PUN/2024 to 31/PUN/2024 are also dismissed. All the six appeals filed by the Revenue are accordingly dismissed.
16. In the result, all the appeals filed by the Revenue are dismissed.
Order pronounced in the open Court on 27th September, 2024.
Sd/- Sd/-
(ASTHA CHANDRA) (R. K. PANDA)
JUDICIAL MEMBER VICE PRESIDENT
पण
ु े Pune; दनांक Dated : 27 September, 2024
th
GCVSR
आदे श की ितिलिप अ े िषत/Copy of the Order is forwarded to:
1. अपीलाथ / The Appellant;
2. थ / The Respondent
3. DR, ITAT, 'A' Bench, Pune
4. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune 24 IT(SS)A Nos.26 to 31/PUN/2024 S.No. Details Date Initials Designation 1 Draft dictated on 24.09.2024 Sr. PS/PS 2 Draft placed before author 26.09.2024 Sr. PS/PS Draft proposed & placed before the 3 JM/AM Second Member Draft discussed/approved by Second 4 AM/AM Member 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS Date on which the file goes to the Head 9 Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order