Jay Bharat Dyg. & Ptg. Mills Pvt.Ltd.,, ... vs Assessee

आयकर अपील सं./I.T.A. No.1372/Ahd/2011 ( Ǔनधा[रण वष[ / Assessment Year : 2008-09) Jay Bharat Dyeing & Printing बनाम/ The DCIT Mills Pvt.Ltd. Vs. Sircle-1 P-126, Kadodara Char Rasta Surat Surat èथायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAACJ 7428 C (अपीलाथȸ /Appellant) .. (Ĥ×यथȸ / Respondent)

अपीलाथȸ ओर से / Appellant by : Shri S.N. Soprakar, Sr.Adv. Ĥ×यथȸ कȧ ओर से/Respondent by : Shri M.K. Singh, Sr.DR

ु वाई कȧ तारȣख / सन Date of Hearing 18/12/2014 घोषणा कȧ तारȣख /Date of Pronounce ment 23/01/2015

आदे श / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-I, Surat ('CIT(A)' in short) dated 01/04/2011 pertaining to Assessment Year (AY) 2008-09. The Assessee has raised the following grounds of appeal:-

1. Ld.CIT(A) has erred in law and on facts in confirming action of AO in not entertaining the claim made by the appellant under the provisions of section 80IA of the Act. Both the lower authorities ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -2-

failed to appreciate the fact that the right to make such claim was reserved by way of a note to the computation of income and hence this action of both the lower authorities in not accepting the claim of the appellant is totally erroneous, prejudicial, and against the principles of Natural Justice that deserves to be quashed.

2. Ld.CIT(A) further erred in denying the claim of the appellant on all together different grounds and reasoning that are far from the fact and evidence on records and are based on conjectures and surmises.

The order of ld.CIT(A) being bad in law, prejudiced and against the principles of Natural Justice deserves to be quashed.

3. Ld.CIT(A) erred in law and on facts in not appreciating the provisions of section 80IA(4)(v) of the Act that governs the allowance of deduction in respect of profits & gains from power generation. Ld.CIT(A) erred in law and on facts in applying provisions of section 80IA(4)(i) of the Act without appreciating the fact that allowance of deduction in respect of profit and gains from power generation are governed by the provisions of section 80IA(iv) of the Act and that the appellant's power unit fulfils all the relevant criteria laid down in section 80IA(4)(iv) of the Act. The ld.CIT(A) ought to have allowed the claim of the appellant.

4. Ld.CIT(A) though tacitly accepted the proposition that the appellant qualified for claim u/s.80IA of the act, further erred in making observations that the appellant artificially jacked up the profit of the eligible business to claim higher deduction. These remarks by the ld.CIT(A) without appreciating the factual matrix of the case are prejudicial, uncalled for an totally irrelevant that deserves to be quashed.

The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.

2. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -3-

dated 28/10/2010. During the course of assessment proceedings, the assessee vide letter dated 18/05/2010 requested to allow deduction u/s.80IA(4)(iv) of the Act. The Assessing Officer (AO in short) rejected this request of the assessee on the ground that the claim ought to have been made by way of revising the original return and this opportunity of revising the original return was available with the assessee till 31/03/2010. Against this, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions of the assessee dismissed the appeal on the reasons as stated at page, 7, 8, 9 & 10 of his order. Aggrieved by the order of the ld.CIT(A), now the assessee is further in appeal before us.

3. During the course of hearing, the ld.Sr.Counsel for the assessee Shri S.N.Soparkar submitted that the only effective ground in this appeal is against disallowance of the claim of deduction made u/s.80IA(4)(iv) of the Act. He submitted that the AO grossly erred in holding that the claim should have been made by way of a revised return. He submitted that a specific note was given that the company is eligible for deduction u/s.80IA(4)(iv) of the Act in respect of profits from unit - power division, and reserves its right to claim the same. In support of this contention, he drew our attention towards page No.17 of the paper-book. He submitted that the ld.CIT(A) misdirected himself while disposing of the appeal. He submitted that the ld.CIT(A) has applied the conditions ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -4-

envisaged u/s.80IA(4)(i)(b) of the Act, but the assessee had made claim of deduction u/s.80IA(4)(iv) of the act. He submitted that section 80IA(4)(i)(b) and section 80IA(4)(iv) operates in different field. He submitted that there is no dispute that the assessee is engaged in the generation and distribution of power and also started transmission and distribution of power. He placed reliance on the judgement of the Hon'ble Gujarat High Court rendered in the case of CIT vs. Shah Alloys Ltd. in Tax Appeal No.2092 of 2010, dated 22/11/2011.

3.1. On the contrary, ld.Sr.CIT-DR supported the orders of the authorities below and submitted that there is no illegality in the orders of the authorities below.

4. After hearing the ld.Sr.Counsel for the assessee and ld.Sr.DR, the issue requires to be adjudicated is whether the assessee is entitled for deduction as claimed u/s.80IA(4)(iv) of the Act. It would be appropriate to reproduce hereinbelow the provisions of section 80IA(4)(i)(b) and 80IA(4)(iv):-

Section 80IA

(4) This section applies to--

(i) any enterprise carrying on the business of (i) developing, or (ii) operating and maintaining or (iii) developing, operating and maintaining] any infrastructure facility which fulfils all the following conditions, namely :

ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -5-

(a) it is owned by a company registered in India or by a consortium of such companies [or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act];

[(b) it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility;]

(c) it has started or starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995:

Provided that where an infrastructure facility is transferred on or after the 1st day of April, 1999, by an enterprise which developed such infrastructure facility (hereafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to which this clause applies and the deduction from profits and gains would be available to such transferee enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place.

[Explanation : For the purposes of this clause, "infrastructure facility'' means--

(a) a road including toll road, a bridge or a rail system;

(b) a highway project including housing or other activities being an integral part of the highway project;

(c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system;

(d) a port, airport, inland waterway [,inland port or navigational channel in the sea.]

[(ii) any undertaking which has started or starts providing telecommunication services whether basic or cellular, including radio paging, domestic satellite service, network of trunking, broadband network and internet services on or after the 1st day of April, 1995, but on or before the [31st day of March, 2005;] ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -6-

Explanation : For the purposes of this clause, "domestic satellite" means a satellite owned and operated by an Indian company for providing telecommunication service.

(iii) any undertaking which develops, develops and operates or maintains and operates an industrial park [or special economic zone] notified by the Central Government in accordance with the scheme framed and notified by that Government for the period beginning on the 1st day of April, 1997, and ending on [the 31st day of March, 2006]:

[Provided that in a case where an undertaking develops an industrial park on or after the 1st day of April, 1999 or a special economic zone on or after the 1st day of April, 2001 and transfers the operation and maintenance of such industrial park or such special economic zone, as the case may be, to another undertaking (hereafter in this section referred to as the transferee undertaking), the deduction under sub-section (1) shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years as if the operation and maintenance were not so transferred to the transferee undertaking:] [Provided further that in the case of any undertaking which develops, develops and operates or maintains and operates an industrial park, the provisions of this clause shall have effect as if for the figures, letters and words "31st day of March, 2006", the figures, letters and words ["the 31st day of March, 2011"] had been substituted;]

(iv) an [undertaking] which,--

(a) is set up in any part of India for the generation or generation and distribution of power if it begins to generate power at any time during the period beginning on the 1st day of April, 1993, and [ending on [the 31st day of March, 2017];

(b) starts transmission or distribution by laying a network of new transmission or distribution lines at any time during the period beginning on the 1st day of April, 1999, and [ending on [the 31st day of March, 2017]:

Provided that the deduction under this section to an [undertaking] under sub-clause (b) shall be allowed only in relation to the profits derived from laying of such network of new lines for transmission or distribution.

[(c) undertakes substantial renovation and modernisation of the existing network of transmission or distribution lines at any time during the ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -7- period beginning on the 1st day of April, 2004 and ending on [the 31st day of March, 2017].

Explanation : For the purposes of this sub-clause, "substantial renovation and modernisation" means an increase in the plant and machinery in the network of transmission or distribution lines by at least fifty per cent of the book value of such plant and machinery as on the 1st day of April, 2004.]"

4.1. The undisputed facts emerge from the record are that the assessee-

company entered into an agreement with Gujarat Electricity Board to wheel the energy generated at the Windfarm to its own other manufacturing units M/s.Jaybharat Dyeing and Printing Pvt.Ltd. and Consumer No.10024 located at Plot No.216, Kadodara Char Rasta, Tal:

Palsana, Dist: Surat. The assessee-company got the wind farm set up and developed by the company M/s.Suzlon Developers Pvt.Ltd. The application for wind-farm was made by the assessee-company to the Gujarat Energy Development Agency for setting up of wind farm. The ld.CIT(A) rejected the claim on the basis that the assessee has not developed wind-farm and the same was developed by M/s.Suzlon Developers Pvt.Ltd. Therefore, the assessee was not entitled for deduction u/s.80IA(4)(iv) of the Act. Another objection of the ld.CIT(A) was that there was gross inflation of profit from this business for claiming higher profit since the assessee has taken energy rate Rs.3.65 per unit. However, clause-4 of agreement with Gujarat Electricity Board (GEB) indicates that GEB was to buy power @ Rs.2.60 per unit only. In the first objection, we find that the ld.CIT(A) has misdirected himself by ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -8-

assuming that the assessee has claimed deduction u/s.80IA(4)(i)(b) of the Act. From the records it is found that even before the AO, the assessee has made application for claiming deduction u/s.80IA(4)(iv) of the Act vide letter dated 18/05/2010 which is enclosed at page Nos.11 & 12 of the paper-book. As per note shown in the statement of total income of the assessee placed at page No.17 of the paper-book, the assessee-

company had given note that 'the company is eligible for deduction u/s.80IA(4)(iv) of the I.T.Act, 1961 in respect of profits from unit - power division, and reserves its right to claim the same'. Therefore, we are of the considered view that the ld.CIT(A) was not justified in rejecting the claim of the assessee since the ld.CIT(A) has not even examined whether the assessee is engaged in the business of generation and distribution of power. The deduction is allowable if an undertaking which is set up in any part of India for the generation or generation and distribution of power if it begins to generate power at any time during the period beginning on the 1st day of April, 1993 and ending on the 31st day of March, 2017. We find that the ld.CIT(A) made a passing remark that the appellant after finding that it just does not meet the conditions laid down in section 80IA(4)(i)(a) & (b) has faintly wriggle out of situation by whispering that these conditions do not apply to a power unit. However, from the records it is transpired that before the AO the assessee had made u/s.80IA(4)(iv) which applied to the undertaking engaged in the power generation. Under these facts, the ld.CIT(A) ought to have ITA No.1372/Ahd/2011 Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09 -9-

given a clear finding in respect of the claim of the assessee whether it is entitled for deduction u/s.80IA(4)(iv) and if not the specific reasons for rejection of claim. In the instant case, the ld.CIT(A) has not given reason as to how the claim of the assessee for deduction u/s.80IA(4)(iv) of the Act is not acceptable. In the absence of such reasoning, the order of the ld.CIT(A) becomes non-speaking order, which cannot be confirmed. Therefore, we hereby set aside the order of ld.CIT(A) and the ground of the appeal regarding entitlement of the assessee for deduction u/s.80IA(4)(iv) of the Act is restored to the file of ld.CIT(A) for decision afresh. The ld.CIT(A) would verify the fact whether the assessee is engaged in the business of generation of power. If it is found that the assessee is engaged in the generation power, the claim of deduction is to be allowed as per law. Needless to say that the ld.CIT(A) would afford reasonable opportunity to the assessee. Thus, the grounds of appeal are allowed but for statistical purposes.

5. In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the Court on Friday, the 23rd day of January, 2015 at Ahmedabad.

Sd/- Sd/- (एन.एस.सैनी) (कुल भारत) लेखा सदèय ÛयाǓयक सदèय ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23 / 01 /2015 टȣ.सी.नायर, व.Ǔन.स./T.C. NAIR, Sr. PS ITA No.1372/Ahd/2011

Jay Bharat Dyeing &Printing Mills Pvt.Ltd. vs. DCIT Asst.Year - 2008-09

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आदे श कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. Ĥ×यथȸ / The Respondent.

3. संबंͬधत आयकर आयुÈत / Concerned CIT

4. आयकर आयुÈत(अपील) / The CIT(A)-I, Surat

5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड[ फाईल / Guard file.

आदे शानुसार/ BY ORDER,

स×याͪपत ĤǓत //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलȣय अͬधकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation .. 1.1.15 (dictation-pad 14-pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ..1/9.1.15

3. Other Member...

4. Date on which the approved draft comes to the Sr.P.S./P.S.................

5. Date on which the fair order is placed before the Dictating Member for pronouncement......

6. Date on which the fair order comes back to the Sr.P.S./P.S.......23.1.15

7. Date on which the file goes to the Bench Clerk.....................23.1.15

8. Date on which the file goes to the Head Clerk..........................................

9. The date on which the file goes to the Assistant Registrar for signature on the order..........................

10. Date of Despatch of the Order..................