M/s Agrawal Coal Corp. Pvt. Ltd., Indore v. Deputy Commissioner of Income Tax 1, Indore

ITA 778/Ind/2018 | 2012-2013
Pronouncement Date: 28-11-2019 | Result: Allowed

Appeal Details

RSA Number 77822714 RSA 2018
Assessee PAN AACCA8468K
Bench Indore
Appeal Number ITA 778/Ind/2018
Duration Of Justice 1 year(s) 2 month(s) 3 day(s)
Appellant M/s Agrawal Coal Corp. Pvt. Ltd., Indore
Respondent Deputy Commissioner of Income Tax 1, Indore
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 28-11-2019
Last Hearing Date 21-11-2019
First Hearing Date 21-11-2019
Assessment Year 2012-2013
Appeal Filed On 24-09-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE HONBLE KUL BHARAT JUDICIAL MEMBER AND HONBLE MANISH BORAD ACCOUNTANT MEMBER ITA NOS. 801 TO 803/IND/2018 ASSESSMENT YEARS 2012-13 TO 2014-15 ITA NOS. 778/IND/2018 & C.O.NO.23 & 24/IND/2019 ASSESSMENT YEARS 2013-14 & 2014-15 REVENUE BY SHRI K.G. GOEL SR.DR ASSESSEE BY SHRI AJAY TULASIYAN CA DATE OF HEARING 2 1.11.2019 DATE OF PRONOUNCEMENT 28 .11.2019 DCIT 1(1) INDORE VS. M/S. AGRAWAL COAL CORPORATION PVT.LTD 5 YASHWANT NIWAS ROAD INDORE ( REVENUE ) (RESPONDENT ) PAN NO. AACCA8468K M/S. AGRAWAL COAL CORPORA TION PVT.LTD 5 YASHWANT NIWAS ROAD INDORE VS. DCIT 1(1) INDORE (APPELLANT) (RESPONDENT ) PAN NO. AACCA8468K AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 2 O R D E R PER MANISH BORAD AM: THE ABOVE CAPTIONED THREE APPEALS FILED BY THE REVENUE FOR ASSESSMENT YEAR 2012-13 TO 2014-15 CROSS APPEAL BY THE ASSESSEE FOR 2012-13 AND CROSS OBJECTIONS BY THE ASSESSEE FO R ASSESSMENT YEAR 2013-14 TO 2014-15 ARE DIRECTED AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-I INDORE DAT ED 30.07.2018 WHICH ARE ARISING OUT OF THE ORDER U/S 143(3) R.W.S . 144C OF THE INCOME TAX ACT DATED 22.03.2016 FRAMED BY THE DCIT- 1(1) INDORE. 2. AS THE ISSUES RAISED IN THE APPEALS AND CROSS OBJECTIONS ARE COMMON IN NATURE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAK E OF TIME AND BREVITY. 3. FIRST WE WILL TAKE UP REVENUES APPEAL RAISIN G FOLLOWING GROUNDS OF APPEAL: ITA NO.801/IND/2018 ASSESSMENT YEAR 2012-13 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE O N ACCOUNT OF GUARANTEE COMMISSION FEES AMOUNTING TO RS.57 94 105/- IN RESP ECT OF COMPUTING AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 3 ARMS LENGTH PRICE FOR THE CORPORATE GUARANTEE GIVE N BY THE APPELLANT ON BEHALF OF THE AE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OF RS. 3 19 635/- MADE U/S 14A OF THE ACT. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OU T OF COLLIERY & REPAIRS AND MAINTENANCE EXPENSES OF RS. 6 03 938/-. THE APPELLANT CRAVES LEAVE TO ADD TO OR DEDUCT FROM OR OTHERWISE AMEND THE ABOVE GROUNDS OF APPEAL. ITA NO.802/IND/2018 ASSESSMENT YEAR 2013-14 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE O N ACCOUNT OF GUARANTEE COMMISSION FEES AMOUNTING TO RS.61 81 250/- IN RESP ECT OF COMPUTING ARMS LENGTH PRICE FOR THE CORPORATE GUARANTEE GIVE N BY THE APPELLANT ON BEHALF OF THE AE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OF RS. 3 96 046/- MADE U/S 14A OF THE ACT. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OU T OF COLLIERY & REPAIRS AND MAINTENANCE EXPENSES OF RS. 5 18 568/-. THE APPELLANT CRAVES LEAVE TO ADD TO OR DEDUCT FROM OR OTHERWISE AMEND THE ABOVE GROUNDS OF APPEAL. ITA NO.802/IND/2018 ASSESSMENT YEAR 2014-15 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE O N ACCOUNT OF GUARANTEE COMMISSION FEES AMOUNTING TO RS.88 98 659/- IN RESP ECT OF COMPUTING AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 4 ARMS LENGTH PRICE FOR THE CORPORATE GUARANTEE GIVE N BY THE APPELLANT ON BEHALF OF THE AE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OF RS.9 39 130/- MADE U/S 14A OF THE ACT. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE OU T OF COLLIERY & OTHER ADMINISTRATIVE AND GENERAL OF RS. 5 00 000/-. THE APPELLANT CRAVES LEAVE TO ADD TO OR DEDUCT FROM OR OTHERWISE AMEND THE ABOVE GROUNDS OF APPEAL. 4. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEES POI NTED OUT THAT THESE THREE APPEALS BY REVENUE ARE NOT MAINTAINABL E SINCE THEY ARE SQUARELY COVERED BY CBDTS CIRCULAR NO.3/2018 AND SUBSEQUENT AMENDMENT THERETO DATED 8 TH AUGUST 2019 AS THE TAX EFFECT IN EACH YEAR IS LESS THAN RS.50 LAKHS. IT WAS ALSO SUBMITT ED THAT UNDER THE IDENTICAL FACTS THE COORDINATE BENCH OF THIS TRIBU NAL VIDE ORDER DATED 14.8.2019 IN ITA NO.1398/AHD/2004 AND OTHERS IN THE CASE OF ITO VS. DINESH MADHAVLAL PATEL HAS DISMISSED THE REVENUES APPEALS AS NON MAINTAINABLE. 5. LD. D.R. APPEALING ON BEHALF OF THE REVENUE COUL D NOT CONTROVERT THIS FACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE RECORDS. IT IS NOT IN DISPUTE THAT IN THESE TH REE APPEALS THE TAX AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 5 EFFECT FOR EACH YEAR IS BELOW MONETARY LIMITS OF RS .50 LAKHS AS PRESCRIBED UNDER THE CBDT CIRCULAR NO.3/2018 DATED 8 TH AUGUST 2019 (SUPRA). THE COORDINATE BENCH OF THIS TRIBUNA L IN ITA NO.1398/AHD/2004 AND OTHERS IN THE CASE OF ITO VS. DINESH MADHAVLAL PATEL (SUPRA) DECIDED THE ISSUE BY HOLDING AS UNDER: 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND HAV ING PERUSED THE MATERIAL ON RECORD WE DO NOT HAVE SLIGHTEST OF HESITATION IN H OLDING THAT THE CONCESSION EXTENDED BY THE CBDT NOT ONLY APPLIES TO THE APPEAL S TO BE FILED IN FUTURE BUT IT IS ALSO EQUALLY APPLICABLE TO THE APPEALS PENDING FOR DISPOSAL AS ON NOW. OUR LINE OF REASONING IS THIS. THE CIRCULAR DATED 8TH AUGUST 20 19 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJUNCTION WITH THE CBDT CIRCU LAR NO 3 OF 2018 (AND SUBSEQUENT AMENDMENT THERETO) AND ALL IT DOES IS T O REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. THIS IS EVIDENT FROM T HE FOLLOWING EXTRACTS FROM THE CIRCULAR DATED 8 TH AUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATI ON. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APP EALS IN INCOME-TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY. THE TABLE FOR MONE TARY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME-TAX MATTERS MONETARY L IMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50 00 000 2 BEFORE HIGH COURT 1 00 00 000 3 BEFORE SUPREME COURT 2 00 00 000 3. FURTHER WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS-A-VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF I N THE CASE OF AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 6 AN ASSESSEE THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPEC IFIED IN PARA 3. NOAPPEAL SHALL BE FILED IN RESPECT OF AN AS SESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHER EVEN I N THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE A UTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND CO MMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR NO APPEAL S HALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIE D IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE EACH ASSESSEE SHALL BE DEALT WIT H SEPARATELY 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FR OM THE DATE OF ISSUE OF THIS CIRCULAR. 6. CLEARLY ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLU DES PARAGRAPH 13 OF THE AFORESAID CIRCULAR WHICH IS AS FOLLOWS: 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROS S OBJECTIONS/ REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNA L AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS / CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SP ECIFIED TAX LIMITS IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSE D. 7. IN VIEW OF THE ABOVE DISCUSSIONS WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPEALS VIDE CBDT CIRCULAR DATED 8TH AUGUST 2019 (SUPRA) SHALL BE APPLICABLE TO THE PENDING APP EALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY M AY KINDLY BE GIVEN TO POINT OUT UPON NECESSARY FURTHER VERIFICATIONS AND TO S EEK RECALL THE DISMISSAL OF APPEALS AND RESTORATION OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EX CEPTIONS AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS WH EREIN THE TAX EFFECT IN TERMS OF THE CBDT CIRCULAR (SUPRA) EXCEEDS RS 50 00 000. NO NE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLAN TS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APP EALS SO SUMMARILY DISMISSED EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT OR OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEPTIONS- OR FOR ANY OTHER REASON AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REG ARD. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 7 9. IN THE LIGHT OF THE ABOVE DISCUSSIONS ALL THE A PPEALS STAND DISMISSED AS WITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON- MAINTAINABLE AND AS ALL THE RELATED CROSS-OBJECTION S OF THE ASSESSEE ARISE ONLY AS A RESULT OF THOSE APPEALS AND MERELY SUPPORT THE OR DER OF THE CIT(A) THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCTUOUS. ORDERED ACCORDINGLY. 10. AS WE PART WITH THE MATTER WE MUST PLACE ON RE CORD OUR DEEP APPRECIATION TO OUR OWN TEAM WHICH HAS PAINSTAKINGLY IDENTIFIED ALL THESE LOW TAX EFFECT APPEALS IN THE LONG WEEKEND AND LESS THAN TWO WORKING DAYS TO THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX GUJARAT AS ALSO THE LEA RNED DEPARTMENTAL REPRESENTATIVES FOR HIS IMMENSE HELP COOPERATION AND ACTIVE INVOLVEMENT IN SPEEDILY DISPOSING OF THESE APPEALS AND OF COURSE TO THE ITAT BAR ASSOCIATION AHMEDABAD FOR THEIR WHOLE HEARTED COOPERATION IN TH IS SPECIAL DRIVE. THE CIRCULAR WAS ISSUED ON THURSDAY THE 8TH AUGUST 2019 AND WIT HIN TWO WORKING DAYS AND THE LONG WEEKEND TODAY ON 14TH AUGUST 2019 ALL TH E APPEALS STAND DISPOSED OF. ITS ONLY A TEAM EFFORT AND WHOLE HEARTED COOPERATI ON OF ALL THE STAKEHOLDERS THAT CAN ENABLE US TO SO SPEEDILY IMPLEMENT TAXPAYER FRI ENDLY INITIATIVES OF THE GOVERNMENT OF INDIA.THE TAXPAYER RELIEF INVOLVED IN THESE APPEALS INCLUDING INTEREST AND THE OTHER COROLLARIES IS ESTIMATED TO BE WELL OVER RS 350 CRORES. THE LEAD CASE BEFORE US IS AN APPEAL FILED OVER FIFTEEN YEARS AGO BY THE INCOME TAX OFFICER AND IT DEALS WITH AN ASSESSMENT YEAR WHICH PERTAINS TO THE PERIOD OVER TWENTY YEARS AGO. YET THE MATTER HAD NOT REACHED T HE FINALITY AND THE REVENUES CHALLENGE TO THE RELIEF GRANTED BY THE COMMISSIONER (APPEALS) HAD REMAINED UNDECIDED. THAT IS NOTHING BUT PROLONGED AGONY OF U NCERTAINTY TO THE TAXPAYERS. IT IS INDEED AN APPRECIABLE GOODWILL GESTURE BY THE GO VERNMENT FOR SO MANY TAXPAYERS ON THE EVE OF THIS INDEPENDENCE DAY AND OFFERING THEM FREEDOM FROM THE PROLONGED MENTAL AGONY AND UNCERTAINTY OF LITIG ATION. 11. IN THE RESULTS ALL THE APPEALS ARE DISMISSED A S WITHDRAWN AND THE CROSS OBJECTIONS ARE DISMISSED AS INFRUCTUOUS. PRONOUNCED IN THE OPEN COURT TODAY ON THE 14TH AUGUST 2019. 7. RESPECTFULLY FOLLOWING THE DECISION OF THE COOR DINATE BENCH WE HEREBY DISMISS THESE THREE APPEALS OF THE REVENUE F OR ASSESSMENT YEAR 2012-13 TO A.Y. 2014-15 IN LIMINE WITHOUT GOING IN TO THE MERITS OF THE CASE. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 8 8. IN THE RESULT ALL THE THREE APPEALS FILED BY T HE REVENUE FOR A.Y. 2012-13 TO 2014-15 ARE DISMISSED. 9. NOW WE TAKE UP ASSESSEES CROSS APPEAL AND CROS S OBJECTIONS RAISED FOR ASSESSMENT YEAR 2012-13 TO 2014-15. 10. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L FOR ASSESSMENT YEAR 2012-13 IN ITA NO.778/IND/2018. 1.THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE CLA IM OF DEDUCTION MADE UNDER SECTION 80IA(4) IN RESPECT OF THE PROFITS OF RS.64 62 398/- DERIVED FROM THE ELIGIBLE POWER GENERATION BUSINESS THROUGH WIND MILL UNITS OF THE APPELLANT. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE THE CLAIM OF DEDUCTION HAVING BEEN MADE DURING THE COURSE OF ASS ESSMENT PROCEEDINGS IS LEGALLY ALLOWABLE TO THE APPELLANT WHICH HAS AL SO BEEN ALLOWED IN SUBSEQUENT YEARS IS PRAYED TO BE NOW ALLOWED. 2THAT THE APPELLANT CRAVES LEAVE TO ADD TO ALTER AMEND MODIFY SUBSTITUTE DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE FINAL HEARING IF NECESSITY SO ARISES. ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUN D; 3. THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE APPELLANT IS ENTITLED TO DEDUCTION OF CESS OF RS.18 38 280/- INCURRED DURING THE YEAR UNDER CONSIDERATION WHICH IS PRAYED TO BE NOW ALLOWED C.O.NO.23/IND/2019 ASSESSMENT YEAR 2013-14 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW THE RESPONDENT ASSESSEE IS LEGALLY ENTITLED TO THE CLAI M DEDUCTION OF CESS PAID OF RS.32 19 899/- FOR THE YEAR UNDER CONSIDERATION WHICH IS PRAYED TO BE NOW ALLOWED. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 9 2. THE ASSESSEE CRAVES LEAVE TO ADD TO ALTER MODI FY SUBSTITUTE AND/OR WITHDRAW ALL OR ANY OF THE GROUNDS OF APPEAL AT AN Y STAGE OF THE APPELLATE PROCEEDINGS. C.O.NO.24/IND/2019 ASSESSMENT YEAR 2014-15 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW THE RESPONDENT ASSESSEE IS LEGALLY ENTITLED TO THE CLAI M DEDUCTION OF CESS PAID OF RS.35 42 987/- FOR THE YEAR UNDER CONSIDERATION WHICH IS PRAYED TO BE NOW ALLOWED. 2. THE ASSESSEE CRAVES LEAVE TO ADD TO ALTER MODI FY SUBSTITUTE AND/OR WITHDRAW ALL OR ANY OF THE GROUNDS OF APPEAL AT AN Y STAGE OF THE APPELLATE PROCEEDINGS. 11. FIRST WE WILL TAKE UP THE GROUND RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2012-13 RELATING TO DEDUCTION U/S 8 0IA(4) IN RESPECT OF THE PROFITS OF RS.64 62 398/- DERIVED FR OM THE ELIGIBLE POWER GENERATION BUSINESS. 12. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT DUR ING YEAR UNDER CONSIDERATION ASSESSEE WAS OPERATING THREE WIND MIL LS FOR POWER GENERATION. ONE SITUATED AT JODHA (RAJASTHAN) AND O THER TWO AT SHAJAPUR(MADHYA PRADESH). AFTER CLAIMING THE DEPRE CIATION AS PER INCOME TAX THERE WAS NET PROFIT IN JODHA UNIT AND L OSSES IN THE TWO UNITS AT SHAJAPUR. IN THE RETURN OF INCOME ASSESSE E DID NOT MADE ANY CLAIM FOR DEDUCTION U/S 80IA(4)OF THE ACT. DUR ING THE COURSE OF AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 10 ASSESSMENT PROCEEDINGS CLAIM FOR DEDUCTION U/S 80IA (4) OF THE ACT WAS MADE AT RS.64 62 398/- FOR THE PROFITS OF JODHA WIND MILL UNIT. THE ASSESSEE OPTED THE DEDUCTION U/S 80IA(4) FROM A SSESSMENT YEAR 2012-13 ONWARDS BEING THE INITIAL YEAR BUT DID NOT OPT FOR THE OTHER TWO ELIGIBLE UNITS. ASSESSE MADE CLAIM DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS BY FILING THE AUDIT REPORT O N FORM 10CCB. HOWEVER LD. A.O REJECTED THE CLAIMS FOR FOLLOWING 3 REASONS; (I) THE CLAIM MADE OTHERWISE THAN BY WAY OF REVISE D RETURN CANNOT BE ENTERTAINED BY THE AO AND PLACED RELIANCE ON THE DECISION OF THE HONOURABLE SUPREME COURT IN THE CAS E OF GOETZE (INDIA) LIMITED VS CIT (2006) 284 ITR 323 (H ON'BLE SUPREME COURT) (II) THE REQUISITE FORM NO. 3CCB WAS TO BE OBTAINED AND ALSO FILED BEFORE DUE DATE OF THE RETURN HENCE THE CLAIM OF THE APPELLANT IS NOT ELIGIBLE TO BE ENTERTAINED. (III) PROFITS AND GAINS FROM ALL THE THREE UNITS WE RE TO BE CONSIDERED ON CONSOLIDATED BASIS NO INDIVIDUALLY. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 11 13. AGGRIEVED WITH THE FINDING OF LD. A.O ASSESSE E PREFERRED APPEAL BEFORE LD. CIT(A) BUT FAILED TO SUCCEED. 14. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL FOR ASSESSMENT YEAR 2012-13. 15. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT ASSESSEES CLAIM OF BEING ELIGIBLE FOR DEDUCTION U/ S 80IA(4) OF THE ACT IS NOT DISPUTED AS IN THE SUBSEQUENT ASSESSMENT YEARS SUCH CLAIM HAS BEEN ALLOWED. HOWEVER AS REGARDS THE ISS UES RAISED IN THE APPEAL THAT WHETHER LEGITIMATE CLAIM CAN BE DEN IED BY THE LD. A.O MERELY FOR NOT FILING REVISED RETURN OF INCOME AND NOT FILING THE AUDIT REPORTS IN SUPPORT OF THE DEDUCTION AND ALSO WITH REGARD TO THE ISSUE THAT WHETHER THE DEDUCTION U/S 80IA(4) IS TO BE GRANTED FOR EACH UNIT RATHER THAN CONSOLIDATED PROFITS OF A LL THE ELIGIBLE UNITS RUN BY THE ASSESSEE OUT OF WHICH FOR FEW OF THE UNI TS ASSESSEE HAS NOT OPTED THE INITIAL ASSESSMENT YEAR FOR CLAIMING DEDUCTION ALL ARE SQUARELY COVERED BY THE FOLLOWING VARIOUS JUDICIAL PRONOUNCEMENTS DECIDING IN FAVOUR OF THE ASSESSEE:- FOR THE PROPOSITION THAT THE RIGHTFUL CLAIM MADE DU RING THE COURSE OF ASSESSMENT PROCEEDINGS CANNOT BE DENIED B Y TAKING AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 12 RECOURSE OF REVISED RETURN AND SHELTER OF THE CASE OF GOETZ INDIA. IT IS THE BENEVOLENT DUTY OF ASSESSING OFFI CER TO ASSESS THE CORRECT TAXABLE INCOME OF A PERSON AS PER LAW E VEN IF THE ASSESSEE FAILS TO CLAIM THE SAME IN THE RETURN OF I NCOME. (I) HON'BLE APEX COURT IN THE CASE OF CIT VS. MAHA LAXMI SUGAR MILLS CO. LTD 58 CTR 0138. (II) HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD (2012) 349 ITR 036. (III) HON'BLE I.T.A.T. INDORE IN THE CASE OF ACT VS . M/S. ADMANUM FINANCE LIMITED INDORE ITA NO.389/IND/2012 807 & 808/IND /2014. FOR THE PROPOSITION THAT FURNISHING OF AUDIT REPORT IN FORM 10CCB ALONG WITH THE RETURN IS DIRECTORY NOT MANDAT ORY AND THE SAME CAN BE FILED EVEN AT THE ASSESSMENT/APPELL ATE STAGE. (IV)HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. CONTIMETERS ELECTRICAL PVT. LTD (2009) 317 ITR 0249. (V) HON'BLEBL;E MADHYA PRADESH HIGH COURT IN THE C ASE OF CIT V/S PANAMA CHEMICALS WORKS (2007) 292 ITR 0147. (VI) HON'BLE I.T.A.T. AHMEDABAD IN THE CASE OF ACIT VS GUJARAT INFO PETRO LTD (2015) 43 CCH 0112. (VII) HON'BLE SUPREME COURT IN THE CASE OLF CIT VS. SURYA MERCHANTS LIMITED SLP(C) NO.6729 OF 2017. FOR THE PROPOSITION THAT EACH UNIT IS AN INDEPENDEN T UNIT AND PROFIT AND LOSS OF EACH UNIT NEED TO BE CONSIDERED ON INDIVIDUAL BASIS NOT CONSOLIDATED BASIS FOR CLAIMIN G DEDUCTION UNDER SECTION 80IA(5). (VIII) CBDT CIRCULAR NO.1/2016 DATED 15.02.2016 REG ARDING CLARIFICATION OF TERM INITIAL ASSESSMENT YEAR IN SECTION 80IA(5) OF THE ACT. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 13 (IX) HON'BLE MADRAS HIGH COURT IN THE CASE OF COMMI SSIONER OF INCOME TAX VS G.R.T. JEWELERS (INDIA) PVT. LTD (201 6) 95 CCH 0072. (X) HON'BLE SUPREME COURT IN THE CASE OF COMMISSION ER OF INCOME TAX & ANR VS. YOKOGAWA INDIA LTD (2017) 291 CTR 0001. (XI) HON'BLE I.T.A.T. CHENNAI BENCH IN THE CASE OF M/S. SHRIRAM PROPERTIES PVT. LTD VS. ACIT (2013) 36 CCH 0297. (XII) HON'BLE I.T.A.T. AHMEDABAD BENCH IN THE CASE OF SADBHAV ENGINEERING LTD V/S DCIT (2013) 38 CCH 0105. 16. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARG UED AND SUPPORTED THE ORDERS OF BOTH THE LOWER AUTHORITIES AND ALSO RELIED ON THE JUDGMENT OF HON'BLE HIGH COURT OF HIMACHAL P RADESH IN THE CASE OF CIT V/S DEEPAK GUPTA AND RAJIV SHARMA JJ ( 2012) 26 TAXMANN.COM 129 (HP). 17. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND ALSO CAREFULLY GONE THROUGH TH E JUDGMENTS REFERRED AND RELIED BY BOTH THE PARTIES. 18. AS REGARDS THE ISSUE OF ELIGIBILITY OF DEDUCTIO N U/S 80I(4) OF THE ACT AT RS.64 62 398/- COMPRISES OF THREE SUB-ISSUES :- AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 14 (I) WHETHER THE LD. A.O IS DUTY BOUND TO COMPUTE TH E CORRECT INCOME OF THE ASSESSEE EVEN IF THE CLAIM HAS NOT BE EN MADE IN THE RETURN OF INCOME BUT SUBSEQUENTLY MADE DURING T HE COURSE OF ASSESSMENT PROCEEDINGS ALONG WITH NECESSARY DOC UMENTARY EVIDENCE IN THE FORM OF AUDIT REPORT WITHOUT FILING REVISED RETURN. (II) THAT WHETHER THE ASSESSEE SHOULD BE DENIED THE BENEFIT OF DEDUCTION U/S 80IA(4) OF THE ACT JUST FOR NOT MAKIN G THE CLAIM IN THE REGULAR RETURN OF INCOME AND NOT FILING REVISED RETURN OF INCOME EVEN IF THE AUDIT REPORT IN FORM 10CCB IS FI LED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALONG WITH MAK ING THE CLAIM. (III ) WHETHER THE DEDUCTION U/S 80IA(4) IS TO BE PROVID ED FOR EACH ELIGIBLE UNIT OR THE LOSSES OF OTHER ELIGIBLE UNITS SHOULD BE FIRST SET OFF AGAINST THE PROFITS OF OTHER UNITS AND THE BALANCE PROFIT (IF ANY) IS ONLY ELIGIBLE FOR DEDUCTION U/S 80IA(4 ) OF THE ACT. 19. AS REGARDS THE FIRST SUB ISSUE LD. COUNSEL FOR THE ASSESSEE INVITED OUT ATTENTION TO CIRCULAR ISSUED BY THE CEN TRAL BOARD OF DIRECT TAXES CIRCULAR NO.14(XL-35) DATED APRIL 11 1 955 WHICH STATES AS UNDER: AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 15 OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ON E OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY PARTI CULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TA XPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICA TE THAT SOME REFUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD IN THE LONG RUN BENEFIT THE DEPARTMENT FOR IT WOULD INSPIRE CO NFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FR OM THE DEPARTMENT. ALTHOUGH THEREFORE THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH ASSESSEES ON WHOM IT IS IMPOSED BY LAW OFFICERS SHOULD : (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE O MITTED TO CLAIM FOR SOME REASON OR OTHER; (B) FREELY ADVISE THEM WHEN APPROACHED BY THEM AS T O THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO B E ADOPTED FOR CLAIMING REFUNDS AND RELIEFS. 20. LD COUNSEL ALSO SUBMITTED THAT ARTICLE 265 OF I NDIAN CONSTITUTION STATES THAT NO TAX CAN BE COLLECTED EXCEPT BY EXPRESS AUTHORITY OF THE LAW SUPPORTS THE SPRIT BEHIND AFORESAID CBDT CIRCULAR. IN THIS CONTEXT FURTHER REFERENCE IS INV ITED TO THE HON'BLE SUPREME COURT RULING IN THE CASE OF GOODYEAR CASE A IR 1990 HON'BLE SUPREME COURT781 WHEREIN IT HAS BEEN STATED THAT CONSTITUTION IS NOT A MERE LAW BUT MACHINERY BY WH ICH ALL LAWS ARE ENACTED. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 16 21. LD. COUNSEL FOR ASSESSEE ALSO SUBMITTED THAT TH E ABOVE CIRCULAR HAS BEEN JUDICIALLY NOTED AND APPROVED IN MANY JUDG MENTS AND IS BEING RELIED UPON IN SUPPORT OF THE APPELLANTS CL AIM. IT IS PERTINENT TO RECALL HERE THE VERY PURPOSE OF ASSESSMENT WHICH IS NOTHING BUT TO ASSESS THE CORRECT INCOME OF AN ASSESSEE AND COM PUTE THE LEGITIMATE TAX PAYABLE ON SUCH INCOME. A CLAIM WHIC H IS LEGALLY ALLOWABLE TO THE ASSESSEE CANNOT BE DISALLOWED BY B RUSHING ASIDE THE SAME IN THE GRAB OF DRAWING INCORRECT INTERPRET ATION FROM THE PRONOUNCEMENT RENDERED BY HONOURABLE SUPREME COURT IGNORING THE PROVISIONS ENACTED UNDR THE ACT AND ALSO UNDER THE CONSTITUTION OF INDIA WHICH HAS OVERRINDING AND SUP ERSEDING EFFECT OVER THE ALL PREVALENT LAWS INCLUDING INCOME TAX AC T. THAT IN THE CASE OF APPELLANT DUE TO THE REJECTION OF A LEGITI MATE CLAIM THE CORRECT INCOME HAS NOT BEEN ASCERTAINED AND THE PUR POSE OF ASSESSMENT HAS BEEN DEFEATED. 21A. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED TH AT THE APPELLANTS IGNORANCE TO CLAIM CORRECT DEDUCTION IN THE RETURN OF INCOME CANNOT BE TAKEN TO THE ADVANTAGE BY THE ASSE SSING OFFICER AND IT IS THE BENEVOLENT DUTY OF ASSESSING OFFICER TO ASSESS THE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 17 CORRECT INCOME OF A PERSON AS PER LAW EVEN IF THE A SSESSEE FAILS TO CLAIM ANY BENEFIT LEGITIMATELY DUE TO HIM. 22. HON'BLE APEX COURT IN THE CASE OF CIT VS. MAHAL AXI SUGAR MILLS CO LTD. 58 CTR 138 (ENCLOSED AT PAGE 01 TO PAGE NO. 09 OF THE CASE LAW PAPER BOOK). RELEVANT PORTION HELD THAT: THERE IS A DUTY CAST ON THE ITO TO APPLY THE RELE VANT PROVISIONS OF THE INDIAN IT ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF THE ASSESEES TAXABLE INCOME AND THE CONSEQUENTI AL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLA IM THE BENEFIT OF A SET OFF IN CANNOT RELIEVE THE ITO OF HIS DUTY TO APPLY S. 24 IN AN APPRECIATE CASE. 23. WE ALSO FIND THAT THE CO-ORDINATE BENCH INDORE IN THE CASE OF ACIT V/S ADMANUM FINANCE LIMITED (SUPRA) H AS DEALT WITH SIMILAR DECIDING IN FAVOUR OF THE ASSESSEE AFTER RELYING ON THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT AND AFTER CONSI DERING AND DISTINGUISHING THE JUDGMENT OF HON'BLE SUPREME COUR T OF INDIA IN THE CASE OF GOETZE INDIA LTD V/S CIT (2006) 284 ITR 323 (SC) OBSERVING AS UNDER:- 128. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH TH E PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT THE ASSESSEE TREATED DEBTORS OF RS. 35 24 407/- AS BAD DEBTS AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 18 AND ACTUALLY WRITTEN THEM OFF IN THE BOOKS OF ACCOU NTS. HOWEVER SINCE A PROVISION FOR NPA OF RS. 11 90 575/ - IN RESPECT OF THESE DEBTORS WAS ALREADY CREATED EARLIE R THE BALANCE NET AMOUNT OF RS. 23 33 832/- WAS ONLY DEBI TED TO PROFIT AND LOSS ACCOUNT AS BAD DEBTS WRITTEN OFF DU RING THE YEAR. THE AMOUNT OF RS. 11 90 575/ - ACTUALLY WRITT EN OFF IN THE BOOKS IN THIS YEAR AS BAD DEBTS AND WAS ADJUSTED AG AINST PROVISION FOR NPA CREATED IN EARLIER YEARS WAS ALS O REQUIRED TO BE ALLOWED IN THIS YEAR AS THE NPA PROVISION CREAT ED IN EARLIER YEARS WAS ALWAYS DISALLOWED AND NEVER CLAIMED AS DE DUCTION. HOWEVER THE COMPANY INADVERTENTLY DID NOT CLAIM THI S AMOUNT SEPARATELY IN THE COMPUTATION AT THE TIME OF FILING OF THE RETURN. THE SAME WAS CLAIMED THROUGH A REVISED COMPUTATION OF INCOME WAS FILED DURING THE COURSE OF ASSESSMENT PR OCEEDINGS BRINGING ALL THE RELEVANT FACTS TO THE NOTICE OF TH E AO THAT THIS FIGURE OF RS. 11 90 575/- BE ALLOWED AS DEDUCTION A S BAD DEBTS ACTUALLY WRITTEN OFF IN THE BOOKS OF ACCOUNTS IN TH IS YEAR. DETAILS OF BAD DEBTS ACTUALLY WRITTEN OFF PROVISIO N MADE AND COPIES OF LEDGER ACCOUNTS OF ALL THE DEBTORS REFLEC TING THE ACTUAL WRITE OFF IN THE BOOKS OF ACCOUNTS WERE ALSO FILED BEFORE THE AO. COPIES OF INCOME TAX RETURNS OF EARLIER YEARS WERE ALSO FILED TO SUBSTANTIATE THAT NPA PROVISIONS WERE DISALLOWED BY THE ASSESSEE IN THE RESPECTIVE YEARS. THE AO REJECTED T HE SAME ON THE PREMISE THAT CLAIMS MADE THROUGH A REVISED RETU RN COULD ONLY BE ENTERTAINED. HE RELIED ON THE DECISION OF T HE HON 'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. THE CIT(A) OBSERVED THAT THE AO REJECTED THE CLAIM MERELY STAT ING THAT SINCE THE CLAIM WAS NOT MADE BY FILING A REVISED RE TURN U/S 139(5) IN VIEW OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF GOETZE INDIA THE CLAIM CANNOT BE ACCEPTED. THE CIT(A) AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 19 HAS ALSO STATED THAT WHEN THE BAD DEBTS ARE ACTUALL Y WRITTEN OFF IN THE BOOKS OF ACCOUNTS AS IRRECOVERABLE THE SAID CLAIM IS ALLOWABLE TO THE APPELLANT U/ S 36(1)(VII) READ WITH SECTION 36(2). SINCE THE AMOUNT OF RS. 11 90 575/- WAS ACTUALLY WR ITTEN OFF FROM THE DEBTORS ACCOUNT IN THIS YEAR THE CLAIM MA DE BY THE APPELLANT IS A LEGITIMATE CLAIM AND IS ALLOWABLE. T HE AO IS BOUND TO ASSESS THE CORRECT INCOME AND FOR THIS PUR POSE THE AO MAY GRANT RELIEF SUO-MOTO OR ON BEING POINTED OUT BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. HONBLE APEX COURT HELD THAT; 129. WE FIND THAT IT HAS BEEN TIME AND AGAIN HELD B Y VARIOUS COURTS THAT LEGITIMATE CLAIMS OF THE ASSESSEE SHOUL D BE ALLOWED EVEN IF RAISED DURING THE ASSESSMENT PROCEEDINGS. I N THE CASE OF CIT VS. RAMCO INTERNATIONAL IN (2011) 332 ITR 306. THE HON'BLE PUNJAB AND HARYANA HIGH COURT HAS HELD THAT:- DEDUCTION UNDER SECTION 80-IB-ALLOWABILITY-CLAIM N OT MADE IN RETURN - ASSESSEE HAVING DULY FURNISHED THE DOCUMENTS AND SUBMITTED FORM NO. 10CCB DURING THE ASSESSMENT PROCE EDINGS CLAIM FOR DEDUCTION UNDER SECTION 80-IB BY WAY OF A N APPLICATION WAS ADMISSIBLE THERE WAS NO REQUIREMENT FOR FILING ANY REVISED RETURN - NO SUBSTANTIAL QUESTION OF LAW ARISES - GO ETZE INDIA LTD. VS. CIT (2006) 204 CTR (SC) 182 (2006) 284 ITR 323 (SC) DISTINGUISHED. 130. IN VIEW OF THE ABOVE DISCUSSION AND ALSO CONS IDERING THE UNCONTROVERTED FINDING OF THE CIT(A) THAT THE SIMIL AR CLAIM OF BAD DEBTS MADE BY FILING THE REVISED RETURN FOR IMMEDIA TELY SUCCEEDING YEAR I.E. AY 2011-2012 HAS BEEN ACCEPTED IN THE ASSESSMENT PROCEEDINGS FOR THAT YEAR AND ALSO CONSI DERING THE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 20 LEGAL POSITION WE HOLD THAT THE CIT(A) HAS RIGHTLY ALLOWED THE SAID CLAIM OF RS. 11 90 575/-. 131. THIS GROUND OF APPEAL OF THE REVENUE FAILS. 24. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF TH E TRIBUNAL WE ARE OF THE CONSIDERED VIEW THAT LD. A.O HAS NOT JUS TIFIED IN DECLINING THE LEGITIMATE CLAIM MADE BY THE ASSESSEE DURING TH E COURSE OF ASSESSMENT PROCEEDINGS RELATING TO DEDUCTION U/S 80 IA(4) OF THE ACT IRRESPECTIVE OF THE FACT THAT CLAIM WAS NEITHER MAD E IN IN ORIGINAL RETURN OF INCOME NOR REVISED RETURN WAS FILED. FIRS T SUB ISSUE RAISED IN GROUND NO.1 IS DECIDED IN FAVOUR OF ASSESSEE. 25. AS REGARDS TO SECOND SUB ISSUE THAT WHETHER THE LD. A.O WAS JUSTIFIED IN DENYING THE BENEFIT U/S 80IA(4) OF THE ACT FOR NOT FILING THE AUDIT REPORT IN FORM 10CCB ALONG WITH THE RETUR N OF INCOME WE OBSERVE THAT HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. PANAMA CHEMICALS WORKS (SUPRA) DEALT THE SIMILAR ISSUE HOLDING THAT THE CLAIM OF THE ASSESSEE U/S 80IA(4) IS JUSTI FIED IF IT HAS NOT FILED THE AUDIT REPORT IN FORM 10CCB ALONG WITH RET URN OF INCOME BUT SUBMITTED LATER ON DURING THE ASSESSMENT PROCEE DINGS. THE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 21 RELEVANT EXTRACT OF THE HON'BLE HIGH COURT JUDGMENT IS REPRODUCED BELOW:- 7. WE ARE OF THE VIEW THAT EVEN IF AN ASSESSEE FAI LS TO FILE INFORMATION IN FORM NO. 10CCB ALONG WITH THE RETURN HE CANNOT BE DIVESTED OF THE BENEFIT OF S. 80-1. IT IS NOT A CASE WHERE THE FORM WAS FIL ED AFTER THE ASSESSMENT BUT BEFORE IT AND THEREFORE WHEN THE AUTHORITIES ASSESSED THE INCOME THE FORM WAS BEFORE THE AO. UNDER THESE CIRCUMSTANCES WE FIND THAT THE APPROACH OF THE CIT(A) AND THE TRIBUNAL WAS PROPER. 8. EVEN IN THE JUDGMENT OF CITI' VS. SHIVANAND ELECTRONICS (SUPRA) THEIR LORDSHIPS OF THE BOMBAY HIGH COURT HAVE OBSERVED TH AT THE POSITION MAY BE DIFFERENT WHEN AN ASSESSEE DOES A PARTICULAR ACT NOT WITHIN THE SPECIFIED TIME BUT AFTER THE EXPIRY THEREOF AND MAK ES AN APPLICATION FOR CONDONATION OF DELAY. IN SUCH CASES DEPENDING ON T HE LANGUAGE OF THE STATUTE AND THE OBJECTS SOUGHT TO BE ACHIEVED BY PR ESCRIBING THE TIME-LIMIT IT WOULD BE THE DUTY OF THE OFFICER TO CONSIDER THE DOCUMENTS EVEN SUBMITTED BELATEDLY. THUS THIS DECISION ALSO SUPPO RTS THE VIEW THAT EVEN IF THE PRESCRIBED FORM IS SUBMITTED BELATEDLY THE AO HAS TO PROCEED ON THE BASIS OF THE CLAIM MADE. 9. WE THEREFORE HOLD THAT IN THE FACTS AND CIRCUM STANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW IN HOLDING THAT THE C LAIM OF THE ASSESSEE UNDER S. 80-1 IS JUSTIFIED EVEN IF HE HAD NOT FILED THE AUDIT REPORT IN FORM NO. 10CCB ALONG WITH THE RETURN. WE THEREFORE ANS WER THE QUESTION AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 26. AS REGARDS TO THIRD SUB ISSUE RELATING TO DEDUC TION U/S 80IA(4) AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 22 OF THE ACT RAISED BEFORE US THAT WHETHER BEFORE ALL OWING DEDUCTION U/S 80IA(4) OF THE ACT PROFIT AND LOSS OF EACH UNI T NEEDS TO BE CONSIDERED ON INDIVIDUAL BASIS OR CONSOLIDATED PROF IT & LOSS OF ALL THE ELIGIBLE UNITS BASIS WE FIND THAT ASSESSEE RUN S THREE WIND MILL UNITS ONE AT JODHA (RAJASTHAN) AND TWO AT SHAJAPU R (MADHYA PRADESH). OUT OF THE THREE UNITS WHICH ARE ELIGIBLE FOR DEDUCTION U/S 80IA() OF THE ACT ASSESSEE HAS OPTED ASSESSMENT YEA R 2012-13 AS INITIAL ASSESSMENT YEAR FOR CLAIMING DEDUCTION U/S 80IA(4) OF THE ACT FOR ONLY JODHA UNIT (RAJASTHAN). FOR THE OTHER TWO UNITS ASSESSEE HAS NOT OPTED FOR DEDUCTION U/S 80IA(4) OF THE ACT SINCE POST DEPRECIATION THEIR WERE LOSSES LD. A.O COMBINED T HE PROFIT AND LOSS OF ALL THE THREE ELIGIBLE UNITS WHICH RESULTED IN L OSS DUE TO WHICH NO DEDUCTION U/S 80IA(4) OF THE ACT WAS ALLOWED. 26A. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT T HE OPTION OF CHOOSING INITIAL ASSESSMENT YEAR FOR CLAIMING DEDUC TION U/S 80IA(4) OF THE ACT IS WITH THE ASSESSEE. ON THE BASIS OF T HIS DISCRETION ASSESSEE MADE CLAIM FOR DEDUCTION ONLY FOR JODHA UN IT. THUS THE PROFITS OF THE JODHA WIND MILL UNIT AT RS.64 62 398 /- SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 23 27. WE FIND THAT THE CO-ORDINATE BENCH HAS CONSISTE NTLY HELD THAT PROFITS DERIVED FROM THE PARTICULAR INDUSTRIAL UNDE RTAKING IS QUALIFIED FOR DEDUCTION U/S 80IA(4) WITHOUT SETTING OFF THE LOSS SUFFERED BY ANY OTHER ELIGIBLE INDUSTRIAL UNDERTAKI NG SUBJECT TO GROSS TOTAL INCOME OF THE ASSESSEE. 28. CO-ORDINATE BENCH CHENNAI IN THE CASE OF SHRIRAM PROPERTIES PVT. LTD V/S ACIT (2013) 36 CCH 0297 (SUPRA) DECIDED SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE THEREBY HOLDING THAT PROF ITS AND LOSS OF INDIVIDUAL UNITS AND NOT CONSOLIDATED UNITS ARE TO BE CONSIDERED FOR GRANTING DEDUCTION U/S 80IB OF THE ACT. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUS ED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD . THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE IS ELIGIBLE FOR D EDUCTION U/S 80IB IN RESPECT OF PROFITS DERIVED BY IT FROM ITS 'SAMRUDDH I' AND 'SPANDHANA' PROJECTS. FURTHER THE GROSS TAXABLE INCOME OF THE A SSESSEE WAS COMPRISED OF THE FOLLOWING ELEMENTS: (I) PROFIT FROM 'SAMRUDDHI' AND 'SPANDHANA' : RS.2 23 22 237/- (II) LOSS FROM TWO PROJECTS VIZ.'SHREYAS' AND 'COIM BATORE': RS.2 87 7L 682/- (III) INTEREST INCOME : RS. 3 20 87 4211- GROSS TOTAL INCOME: RS. 2 56 37 975/- AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 24 ON THE ABOVE FACTS THE ISSUE BEFORE US IS WHETHER THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IA OF RS.2 23 22 237/- OR NOT IN VIEW OF THE FACT THAT THOUGH THERE IS GROSS TOTAL INCOME OF HIGHER AMOUNT OF RS.2 56 37 975/- BUT IN VIEW OF THE FACT THAT AMOUNT COMPUTED UNDER THE HEAD 'BUSINESS INCOME' BY AGGREGATING PROFITS AND LOSSES OF ALL BU SINESS IS LOSS OF RS.64 49 445/-. 9. SUB-SECTION (1) OF SECTION 80-IB PROVIDES THAT W HERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAIN S DERIVED FROM ANY BUSINESS REFERRED TO IN SUB-SECTIONS (3) TO (LIB) THERE SHALL BE ALLOWED IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE A DEDUCT ION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO SUCH PERCENTAGE AND FOR SUCH NUMBER OF ASSESSMENT YEARS AS SPECIFIED IN THIS SECTION. SUB- SECTION (2) STATES THAT THIS SECTION APPLIES TO ANY INDUSTRIAL UNDERTAKING WHICH FULFILS ALL THE CONDITIONS STIPULATED IN THIS SUB-SECTION. SUB-SECT ION (4) OF SECTION 80-IB STATES THAT 'THE AMOUNT OF DEDUCTION IN THE CASE OF AN INDUSTRIAL UNDERTAKING IN AN INDUSTRIALLY BACKWARD STATE SPECI FIED IN THE EIGHTH SCHEDULE SHALL BE HUNDRED PER CENT OF THE PROFITS A ND GAINS DERIVED FROM SUCH INDUSTRIAL UNDERTAKING FOR FIVE ASSESSMENT YEA RS BEGINNING WITH THE INITIAL ASSESSMENT YEAR AND THEREAFTER. '. IN THE INSTANT CASE IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS SATISFIED ALL OTHER R EQUISITE CONDITIONS MAKING THE ASSESSEE ELIGIBLE FOR DEDUCTION. ON A CU RSORY LOOK AT SUB- SECTION (4) IT IS APPARENTLY BORNE OUT THAT THE AM OUNT OF DEDUCTION IS AVAILABLE IN RESPECT OF THE PROFITS AND GAINS DERIV ED FROM AN INDUSTRIAL UNDERTAKING. IF THERE IS NO PROFIT FROM AN INDUSTRI AL UNDERTAKING OBVIOUSLY THERE CANNOT BE ANY QUESTION OF ALLOWING DEDUCTION UNDER THIS SECTION. EQUALLY IF THERE IS A LOSS IN AN INDUSTRIAL UNDERTA KING IN THAT CASE AGAIN THERE WILL NOT BE ANY POINT IN CLAIMING DEDUCTION U NDER THIS SECTION. AS THIS SUB-SECTION PROVIDES FOR GRANTING DEDUCTION ON THE PROFITS AND GAINS DERIVED FROM 'SUCH INDUSTRIAL UNDERTAKING' IT IS C LEAR POINTER FOR GRANTING DEDUCTION IN RESPECT OF PROFIT EARNED BY EACH OF SU CH ELIGIBLE INDUSTRIAL AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 25 UNDERTAKINGS SEPARATELY. IF THERE IS A PROFIT DERIV ED FROM SUCH INDUSTRIAL UNDERTAKING THE DEDUCTION UNDER SECTION 80-IB WILL FOLLOW. THE LOSS FROM SUCH ELIGIBLE INDUSTRIAL UNDERTAKING WILL GO OUT OF RECKONING. THERE IS NO WARRANT FOR REDUCING THE LOSS OF ONE ELIGIBLE UNDER TAKING FROM THE PROFIT OF THE OTHER ELIGIBLE UNDERTAKING. SUCH AN INTERPRETAT ION WILL LEAD TO VIOLENCE TO THE UNAMBIGUOUS LANGUAGE OF SECTION WHICH OTHER WISE TALKS OF GRANTING DEDUCTION IN RESPECT OF THE 'PROFITS AND GAINS DERI VED FROM SUCH INDUSTRIAL UNDERTAKING'. IF WE WERE TO READ THE SECTION IN A W AY THAT HAS BEEN READ BY THE AUTHORITIES BELOW THEN INSTEAD OF THE PHRAS E EXTRACTED IN THE PRECEDING LINE IT SHOULD HAVE BEEN 'AGGREGATE OF P ROFITS AND GAINS DERIVED FROM SUCH INDUSTRIAL UNDERTAKINGS'. IT IS THEREFOR E ABUNDANTLY CLEAR THAT THERE IS NO REFERENCE TO THE AGGREGATE OF PROFITS F ROM ALL THE ELIGIBLE INDUSTRIAL UNDERTAKINGS. WE ARE THEREFORE OF THE CONSIDERED OPINION THAT IF THERE IS PROFIT DERIVED FROM A PARTICULAR INDUSTRIA L UNDERTAKING THAT WILL QUALIFY FOR DEDUCTION WITHOUT REDUCTION OF LOSS SUF FERED BY ANY OTHER ELIGIBLE INDUSTRIAL UNDERTAKING(S). 10. SECTION 80IB(13) READS AS UNDER: (13) THE PROVISIONS CONTAINED IN SUB-SECTION (5) AN D SUB- SECTIONS (7) TO (12) OF SECTION 80-IA SHALL SO FAR AS MAY BE APPLY TO THE ELIGIBLE BUSINESS UNDER THIS SECTION22.' 11. SUB SECTION(5) OF SECTION 80LA READS AS UNDER: '(5) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT THE PROFITS AND GAINS OF AN ELIGIBLE BUSI NESS TO WHICH THE PROVISIONS OF SUB-SECTION (1) APPLY SHALL FOR THE PURPOSES OF DETERMINING THE QUANTUM OF DEDUCTION UNDER THAT SUB -SECTION FOR THE ASSESSMENT YEAR IMMEDIATELY SUCCEEDING THE INITIAL ASSESSMENT YEAR OR ANY SUBSEQUENT ASSESSMENT YEAR BE COMPUTED AS IF SUCH ELIGIBLE BUSINESS WERE THE ONLY SOURCE OF INCOME OF THE ASSESSEE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 26 DURING THE PREVIOUS YEAR RELEVANT TO THE INITIAL AS SESSMENT YEAR AND TO EVERY SUBSEQUENT ASSESSMENT YEAR UP TO AND INCLU DING THE ASSESSMENT YEAR FOR WHICH THE DETERMINATION IS TO B E MADE.' 12. THUS A READING OF THE ABOVE PROVISIONS SHOWS THAT FOR DETERMINING THE AMOUNT WHICH QUALIFIES FOR DEDUCTION U/S 80LB(1 ) ONE HAS TO COMPUTE THE INCOME FROM ELIGIBLE BUSINESS AS IF THE ELIGIBL E BUSINESS WAS THE ONLY SOURCE OF INCOME OF THE ASSESSEE. IN OTHER WORDS T HE INCOME OR LOSS FROM OTHER BUSINESS OR OTHER ACTIVITIES ARE TO BE IGNORE D FOR THE PURPOSE OF DETERMINING THE AMOUNT WHICH IS ELIGIBLE FOR DEDUCT ION U/S 80IB(L) OF THE ACT. 13. SECTION 80A(1) PROVIDES THAT IN COMPUTING TOTAL INCOME OF THE ASSESSEE THERE SHALL BE ALLOWED FROM THE GROSS TOTAL INCOME THE DEDUCTIONS SPECIFIED IN SECTIONS 80-C TO 80-U. SUB-SECTION (2) FURTHER P ROVIDES THAT THE AGGREGATE AMOUNT OF DEDUCTIONS UNDER THIS CHAPTER S HALL NOT IN ANY CASE EXCEED THE GROSS TOTAL INCOME OF THE ASSESSEE. THE GROSS TOTAL INCOME HAS BEEN DEFINED UNDER SECTION 80B (5) TO MEAN 'THE TOT AL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT BEFORE MAKING ANY DEDUCTION UNDER THIS CHAPTER.' IT THEREFORE FOLLOWS THAT THE PRIMARY STEP FOR CONSIDERING THE GRANT OF DEDUCTIONS UNDER CHAPTER V I-A IS TO DETERMINE THE GROSS TOTAL INCOME WHICH IN TURN IS COMPUTED BY AGGREGATING THE INCOME FROM ALL THE SOURCES IN THIS YEAR AFTER ADJUSTING T HE LOSSES OF THE CURRENT YEAR UNDER ANY HEAD. THE BROUGHT FORWARD LOSS OR UN ABSORBED DEPRECIATION ETC. ARE ALSO REDUCED. THE RESULTANT FIGURE IS DETERMINED AS GROSS TOTAL INCOME. TO PUT IT SIMPLY GROSS TOTAL IN COME IS THE INCOME AVAILABLE AT THE DISPOSAL OF THE ASSESSEE IMMEDIATE LY BEFORE ALLOWING DEDUCTIONS UNDER CHAPTER VI-A. IF THE GROSS TOTAL I NCOME IS SAY RS. 100 AND THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SEC TION 80-IB AT RS. 150 THEN THE AMOUNT OF DEDUCTION UNDER SECTION 80-IB WI LL BE RESTRICTED TO RS. 100 AS PER THE MANDATE OF SECTION 80A WHICH PROVIDE S THAT THE DEDUCTIONS AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 27 SHALL BE ALLOWED FROM THE GROSS TOTAL INCOME AND TH E AGGREGATE AMOUNT OF ALL THE DEDUCTIONS SHALL NOT IN ANY CASE EXCEED THE GROSS TOTAL INCOME OF THE ASSESSEE. IF HOWEVER THE AMOUNT OF ELIGIBLE REL IEF UNDER SECTION 80-IB IS SAY RS. 90 THEN FULL AMOUNT WILL BE ELIGIBLE FOR D EDUCTION BECAUSE THE AMOUNT OF THE ELIGIBLE RELIEF DOES NOT EXCEED THE G ROSS TOTAL INCOME. THEREFORE IT IS MANDATORY TO WORK OUT THE ELIGIBLE AMOUNT OF DEDUCTION UNDER VARIOUS SECTIONS OF CHAPTER VI-A INDIVIDUALLY AND THEN SUCH AGGREGATE AMOUNT HAS TO BE RESTRICTED TO THE AMOUNT OF GROSS TOTAL INCOME AS COMPUTED UNDER SECTION 80B(5) WHICH MEANS THE I NCOME AVAILABLE AFTER ADJUSTING ALL THE BROUGHT FORWARD LOSSES AND UNABSO RBED DEPRECIATION ETC. 14. THUS A CAREFUL READING OF ALL THE ABOVE PROVIS IONS SHOWS THAT WHAT IS RELEVANT FOR ASCERTAINING THE AMOUNT WHICH IS ALLOW ABLE DEDUCTION U/S 80IB ARE - (I) AMOUNT OF PROFIT DERIVED FROM ELIGIBLE BUSINESS ; AND (II) THE AMOUNT OF GROSS TOTAL INCOME OF THE ASSESSEE THE AMOUNT OF PROFIT DERIVED FROM ELIGIBLE BUSINESS QUALIFIES FOR DEDUCTION U/S 80IB SUBJECT TO THE AMOUNT OF GROSS TOTAL INCOM E OF THE ASSESSEE. THERE IS ABSOLUTELY NO RELEVANCE FOR THIS PURPOSE O F THE AMOUNT WHICH IS ARRIVED AT BY AGGREGATING INCOME FROM ALL THE DIFFE RENT BUSINESS OF THE ASSESSEE WHICH IS THE AMOUNT ASSESSABLE AS BUSINESS INCOME OF THE ASSESSEE. 15. WE ARE REMINDED OF THE CELEBRATED JUDGMENT REND ERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. CANARA WORKSHOP (P.) LTD. (1986) 161 ITR 320 IN WHICH THE ASSESSEE WAS ENGAGED IN THE MA NUFACTURE OF AUTOMOBILE SPARES. THE PRODUCTS MANUFACTURED BY IT WERE COVERED BY THE LIST IN THE FIFTH SCHEDULE TO THE INCOME-TAX ACT. D URING THE RELEVANT PERIOD THE ASSESSEE COMMENCED ANOTHER ACTIVITY THAT IS TH E MANUFACTURE OF ALLOY AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 28 STEELS WHICH WAS ALSO AN INDUSTRY COVERED IN THE F IFTH SCHEDULE. THE ASSESSEE SUSTAINED LOSS IN THE ALLOY STEEL INDUSTRY BUT PROFIT IN THE OTHER INDUSTRY. IT CLAIMED DEDUCTION IN RESPECT OF THE PR OFIT WITHOUT REDUCING THE LOSS FROM THE ALLOY STEEL INDUSTRY. THE ITO HELD TH AT THE ASSESSEE WILL BE ENTITLED TO DEDUCTION UNDER SECTION 80E ON THE PROF ITS FROM THE MANUFACTURE OF AUTOMOBILE PARTS ONLY AFTER SETTING OFF THE LOSS IN ALLOY STEEL MANUFACTURE. THE HIGH COURT DECIDED THE POINT IN AS SESSEE'S FAVOUR. THE REVENUE ASSAILED THE JUDGMENT OF THE HON'BLE HIGH C OURT BEFORE THE HON'BLE SUPREME COURT. WHILE AFFIRMING THE VIEW TAK EN BY THE HON'BLE HIGH COURT IT WAS HELD THAT IN COMPUTING THE PROFI TS FOR THE PURPOSE OF DEDUCTION UNDER SECTION 80E THE LOSS INCURRED BY T HE ASSESSEE IN THE MANUFACTURE OF ALLOY STEELS (A PRIORITY INDUSTRY) C OULD NOT BE SET OFF AGAINST THE PROFITS OF THE MANUFACTURE OF AUTOMOBILE ANCILL ARIES (ANOTHER PRIORITY INDUSTRY) AND HENCE THE ASSESSEE WAS ENTITLED TO DE DUCTION AT THE SPECIFIED RATE ON THE ENTIRE PROFITS OF THE AUTOMOB ILE PARTS INDUSTRY INCLUDED IN THE TOTAL INCOME WITHOUT DEDUCTING THER E FROM THE LOSS IN THE ALLOY STEEL MANUFACTURE. FACTS INVOLVED IN THE INST ANT APPEAL ARE MUTATIS MUTANDIS SIMILAR. 16. THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CA SE OF CIT V. VISAKHA INDUSTRIES LTD. (2001) 251 ITR 471 HAS ALSO TAKEN T HE SIMILAR VIEW BY HOLDING THAT THE DEDUCTIONS CONTEMPLATED UNDER SECT ION 80HH AND 80-1 ARE TO BE ALLOWED WITH REFERENCE TO THE PROFITS OF THE PARTICULAR INDUSTRIAL UNDERTAKING AND NOT WITH REFERENCE TO THE TOTAL INC OME OF THE ASSESSEE AND THEREFORE LOSS IN AN OTHER UNIT CANNOT BE SET OFF A GAINST THE PROFITS OF ELIGIBLE UNIT. 17. IN THE INSTANT CASE WE OBSERVE THAT GROSS TOTA L INCOME OF THE ASSESSEE IS RS.2 56 37 975/- AFTER ADJUSTING LOSSES SUFFERED BY THE ASSESSEE IN THE OTHER TWO 'PROJECTS VIZ. 'SHREYAS' AND 'COIMBATORE' . THERE ARE NO BROUGHT FORWARD LOSSES OR UNABSORBED DEPRECIATION. THE CLAI M OF DEDUCTION U/S AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 29 80IB IN RESPECT OF THE TWO ELIGIBLE UNITS VIZ. 'SPA NDHANA' AND 'SAMRUDDHI' OF RS.2 23 22 237/- IS OBVIOUSLY LESS THAN THE GROS S TOTAL INCOME. IN OUR CONSIDERED OPINION THE ASSESSING OFFICER AS WELL A S THE ID. CIT(A) ERRED IN INTERPRETING THE RELEVANT PROVISIONS WHEN THEY HELD THAT THE LOSSES SUFFERED BY THE ASSESSEE FROM TWO PROJECTS VIZ. 'SHREYAS' A ND 'COIMBATORE' BE REDUCED FROM THE PROFITS OF THE OTHER TWO UNITS VIZ . 'SPANDHANA' AND 'SAMRUDDHI' FOR GRANTING DEDUCTION U/S 80IB. ACCORD INGLY THE IMPUGNED ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE. THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S 8018 ON THE PROFITS DERIVED BY THE ASSESSEE FROM TWO PROJECTS VIZ. 'SPANDHANA' AND 'SA MRUDDHI' OF RS.2 23 22 237/-. THUS THE GROUNDS OF APPEAL OF TH E ASSESSEE ARE ALLOWED. 29. THE ABOVE VIEW OF THE CHENNAI BENCH WAS ALSO FO LLOWED BY THE CO-ORDINATE BENCH AHMEDABAD IN THE CASE OF SADBHAV ENGINEERING LTD V/S DCIT (2013) 38 CCH 0105 (SUPRA) OBSERVING A S FOLLOWS:- 13. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED T HE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE UNDISPUTED FACTS OF THE CASE IN THE YEARS UNDER APP EAL IS THAT THE ASSESSEE CLAIMED DEDUCTION U/S.80-IB OF THE ACT. TH E AO COMPUTED THE CLAIM FOR DEDUCTION ALLOWABLE U/S.80-IA TO THE ASSE SSEE BY ALLOCATING THE LOSSES OF OTHER UNITS AGAINST THE PROFITS OF THE EL IGIBLE UNITS IN PROPORTION TO THE TURNOVER OF THE ASSESSEE. ON APPEAL THE CIT(A) CONFIRMED THE ACTION OF THE AO ON THE GROUND THAT IN THE APPEAL FOR A YS 20 03-04 & 2004-05 THE CIT(A) HAS CONFIRMED THE ACTION OF THE AO. THE ID.A R HAS SUBMITTED THAT DUE TO SMALLNESS OF THE AMOUNT INVOLVED THE ASSESS EE THOUGH FILED THE APPEAL BEFORE THE TRIBUNAL IN AYS 2003-04 & 2004-05 BUT HAD WITHDRAWN THE SAME AND THEREFORE THE APPEALS OF THE ASSESSE E WERE DISMISSED AS AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 30 WITHDRAWN. THUS AS THE TRIBUNAL HAS DISMISSED THE APPEALS OF THE ASSESSEE FOR WANT OF PROSECUTION IT CANNOT BE A DE CISION ON MERITS WHICH CAN BE APPLIED IN THE SUBSEQUENT YEARS IN THE CASE OF THE ASSESSEE. WE FIND FORCE IN THE ARGUMENT OF THE ID.AR OF THE ASSE SSEE SINCE THE APPEAL OF THE ASSESSEE FOR AYS 2003-04 & 2004-05 WAS DISMISSED IN LIMINE BY THE TRIBUNAL THEREFORE THE RATIO IN THE SAID DECISION IS NOT A BINDING PRECEDENT TO BE APPLIED TO THE ASSESSEE FOR THE SUBSEQUENT YE ARS ON THE SAME ISSUE. WE FIND THAT THE ISSUE AS POINTED OUT BY THE ID.AR OF THE ASSESSEE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. SHRIRAM PROPERTIES PVT .LTD. VS. ACIT (SUPRA) WHEREIN IT WAS HELD THAT THE PROFIT DERIVED FROM A PARTICULAR ELIGIBLE INDUSTRIAL UNDERTAKING IS QUALIFIED FOR DEDUCTION U /S.80IB WITHOUT REDUCTION OF LOSS SUFFERED BY ANY OTHER ELIGIBLE IN DUSTRIAL UNDERTAKING SUBJECT TO GROSS TOTAL INCOME OF ASSESSEE. THUS TH IS GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED FOR ALL THE YEARS UNDER APPEAL. 30. AS REGARDS OPTING OF THE INITIAL YEAR FOR CLAIM ING DEDUCTION OF PROFITS OF ELIGIBLE UNDERTAKING FOR 10 CONSECUTIVE ASSESSMENT YEARS OUT OF THE SLAB OF 15 OR 12 YEARS AS PRESCRIBED IN THE SECTION HONBLE HIGH COURT OF MADRAS IN THE CASE OF COMMISSIONER OF INCOME TAX VS M/S. G. R. T. JEWELERS (INDIA) PVT. L TD (2016) 95 CCH 0072 DATED 01.03.2016 THE HONOURABLE HIGH COURT CLARIFIED THE POSITION OF THE INITIAL YE AR IN RESPECT OF THE CLAIM MADE BY ANY ELIGIBLE UNIT AND THAT AFTER OPTING THE INITIAL YEAR TAXATION OF SUCH UNI T SHALL BE DONE FOR THE INITIAL YEAR AND FOR THE SUBSEQUENT YE ARS. THE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 31 HONOURABLE HIGH COURT ANSWERED THE QUESTION RAISED IN FAVOUR OF THE ASSESSEE 'THAT THE INITIAL ASSESSMENT YEAR IN SECTION 80LA(5) WOULD ONLY MEAN THE YEAR OF CLAIM O F DEDUCTION UNDER SECTION 80LA AND NOT THE YEAR OF COMMENCEMENT OF ELIGIBLE BUSINESS'. THE HONOURABLE HIGH COURT OF MADRAS FURTHER REFERRED THE CIRCULAR NO. 1/2016 DATED 15.02.2016 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WHICH CLARIFIED THE POSITION OF LAW IN RESPECT OF THE CLAIM TO BE MADE UNDER SECTION 80LA OBSERVIN G AS FOLLOWS:- 'THE MATTER HAS BEEN EXAMINED BY THE BOARD. IT IS ABUNDANTLY CLEAR FROM SUB-SECTION (2) THAT AN ASSESSEE WHO IS ELIGIBLE TO CLAIM DEDUCTION U/ S 80JA HAS THE OPTION TO CHOOSE THE INITIAL! FIRST YEAR FROM WHICH IT MAY DESIRE THE CLAIM OF DEDUCTION FOR TEN CONSECUTI VE YEARS OUT OF A SLAB OF FIFTEEN (OR TWENTY) YEARS) AS PRESCRIBED UNDER THAT SUB-SECTION. IT IS HEREBY CLARIFIED THAT ONCE SUCH INITIAL ASSESSMENT YEAR HAS BEEN OPTED FOR BY THE ASSESSEE) HE SHALL BE ENTITLED TO CLAIM DEDUCTION U/ S 80JA FOR TEN CONSECUTIVE YEARS BEGINNING FROM THE YEAR IN RESPECT OF WHICH HE HAS EXERCISED SUCH OPTION SUBJECT TO THE FULFILMENT OF CONDITIONS PRESCRIBED IN THE SECT ION. HENCE) THE TERM 'INITIAL ASSESSMENT YEAR) WOULD MEA N THE FIRST YEAR OPTED FOR BY THE ASSESSEE FOR CLAIMING DEDUCTION U/ S 80JA. HOWEVER) THE TOTAL NUMBER OF YEARS FOR CLAIMING DED UCTION SHOULD NOT TRANSGRESS THE PRESCRIBED SLAB OF FIFTEEN OR TWENTY YEARS) AS THE CASE AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 32 MAY BE AND THE PERIOD OF CLAIM SHOULD BE AVAILED IN CONTINUITY.' 31. FURTHER THE JUDGMENT OF HONBLE HIGH COURT OF H IMACHAL PRADESH IN THE CASE OF CIT VS. DEEPAK GUPTA AND RAJ IV SHARMA(SUPRA) RELIED BY THE LD. DR IS NOT APPLICABL E SINCE THE FACTS OF THE INSTANT APPEALS ARE DISTINGUISHABLE. 32. WE THEREFORE RESPECTFULLY FOLLOWING THE ABOVE J UDICIAL PRONOUNCEMENTS AND IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT LD. A.O SHOULD HAVE ACCEPTED THE LEGITIMATE CLAIM MADE BY THE ASSESSEE CLAIMING DEDUCTION U/S 80IA(4) OF THE ACT FOR THE ELIGIBLE UNDERTAKING NA MELY WIND MILL AT JODHA RAJASTHAN AND ALSO ACCEPTED THE AUDIT REPORT FILED FOR MAKING SUCH CLAIM DURING THE COURSE OF ASSESSMENT P ROCEEEINGS. FURTHER SINCE THE ASSESSEE OPTED CLAIM U/S 80IA(4) OF THE ACT FOR ONLY JODHA UNIT THE LOSS OF OTHER TWO ELIGIBLE UND ERTAKINGS WERE NOT REQUIRED TO BE SET OFF AGAINST THE PROFITS OF JODHA UNIT SINCE ASSESSEE HAD OPTED ASSESSMENT YEAR 2012-13 AS INITI AL ASSESSMENT YEAR FOR CLAIMING DEDUCTION U/S 80IA(4) OF THE ACT ONLY FOR JODHA UNIT AND NOT FOR OTHER TWO UNITS AT SHAJAPUR (M.P.) . LD. A.O IS THEREFORE DIRECTED TO ALLOW THE DEDUCTION U/S 80IA( 4) OF THE ACT AT AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 33 RS.64 62 398/-. ACCORDINGLY GROUND NO.1 RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2012-13 IS ALLOWED. 33. NOW WE TAKE UP COMMON ISSUE RAISED BY THE AS SESSEE IN CROSS OBJECTIONS NO.23 & 24 FOR ASSESSMENT YEARS 2 013-14 AND 2014-15 AND IN ADDITIONAL GROUNDS OF APPEAL NO.3 FO R ASSESSMENT YEAR 2012-13 AGAINST THE DENIAL OF DEDUCTION OF CES S PAID AT RS.32 19 899/- AND RS.35 42 987/- AND RS.18 38 280/ - RESPECTIVELY. 34. BRIEF FACTS ARE THAT FOR ASSESSMENT YEARS 2012- 13 2013-14 & 2014-15 ASSESSEE COMPUTED THE TAX AND SURCHARGE ON THE INCOME DECLARED IN THE RETURN OF INCOME AND EDUCATION CESS WAS ALSO ADDED TO THE TAX AND SURCHARGE. EDUCATION CESS OF RS.18 38 280/- RS.32 19 899/- AND RS.35 42 987/- PAID FOR ASSESSME NT YEARS 2012-13 2013-14 & 2014-15 RESPECTIVELY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSEE SUBMITTED THAT THE EDUCATION CESS SHOULD BE ALLOWED AS AN EXPENDITURE U/S 37 OF THE A CT SINCE IT IS NOT COVERED UNDER THE HEAD AMOUNT NOT DEDUCTIBLE PROVIDED IN SECTION 40(A)(II) OF THE ACT. LD. A.O DENIED THE C LAIM AND ASSESSEE COULD NOT SUCCEED BEFORE THE LD. CIT(A). AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 34 35. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL RAISING THE ISSUE THAT WHETHER THE ALLEGED EDUCATION CESS IS TO BE CONSIDERED AS PART OF RATE OF TAX AND SURCHARGE LEVIED ON THE PR OFITS OR GAINS OF ANY BUSINESS OR PROFESSION OR ASSESSED AT A PROPORT ION OF OR OTHERWISE ON THE BASIS OF ANY SUCH PROFITS OR GAINS NOT TAXABLE AS EXPENSES AS PROVIDED IN SECTION 40(A)(II) OF THE AC T AND OR WHETHER IT IS AN ALLOWABLE EXPENDITURE. 36. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE BY VARIOUS JUDGMENTS MENTIONED HEREIN BELOW:- FOR THE PROPOSITION THAT THE CESS IS AN ALLOWABLE E XPENDITURE AND IS NOT HUT BY THE DISALLOWANCE CONTEMPLATED U/S 40( A)(II) OF THE ACT. (I) HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CHA MBAL FERTILIZERS AND CHEMICALS LIMITED D.B.I.T.A NO.52/2018 DATED 31.7.2 018. (II) HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. EICHER MOTORS LTD (2007) 293 ITR 046 4. (III) HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS BHOPAL SUGAR INDUSTRIES LTD(1998) 233 ITR 0429. (IV) HON'BLE BOMBAY HIGH COURT IN THE CASE OF AHMED ABAD ELECTRICITY CO. LTD VS. CIT (1993) 199 ITR 0351. 37. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE ST RONGLY OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND CONTENDED THAT THE NATURE OF THE EDUCATION CESS IS THE SAME A S FOR TAXES AND AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 35 SURCHARGE LEVIED ON THE INCOME OF THE ASSESSEE AND THUS ARE OF THE PERSONAL NATURE AND NOT DEDUCTABLE AS AN EXPENDITU RE. 38. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE JUD GMENTS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE OTHER ISSUE COMMONLY RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2013-14 IS THAT WHETHER THE EDUCATION CESS PAID BY THE ASSESSEE ALONG WITH THE INCOME TAX AND SURCHARGE IS DEDUCTIBLE AS EXPENDITURE U/S 37 OR IT IS NOT DEDUCTIBLE AS PER PROVISIONS OF SECTION 40(A)(II) O F THE ACT WHICH REFERS TO THE AMOUNT NOT DEDUCTIBLE. 39. WE OBSERVE THAT SIMILAR ISSUE CAME UP BEFORE TH E HON'BLE HIGH COURT OF RAJASTHAN IN THE CASE OF CHAMBAL FERTILIZERS AND CHEMICALS LIMITED (SUPRA) WHEREIN HON'BLE HIGH COURT REFERRED TO CIRCULAR NO . NO.91/58/66-ITJ(19) DATED 18.5.1967 AND ALSO VARIOU S JUDGMENTS. THE RELEVANT EXTRACT OF THE JUDGMENT OF THE HONBLE HIGH COURT IN THIS CASE IS MENTIONED BELOW:- (I) HONBLE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH JAIPUR IN THE CASE OF CIT KOTA V/S CHAMBAL FERTILIZERS AN D CHEMICALS LTD KOTA D.B. IT NO.52/2018 ORDER DATED 31.7.2018 RAISED AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 36 FOLLOWING SUBSTANTIAL QUESTION OF LAW:- 3.WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. ITAT HAS NOT ERRED IN HOLDING THAT THE EDUCATIO N CESS IS A DISALLOWABLE EXPENDITURE U/S 40(A)(II) OF THE ACT? REGARDING QUESTION NO.3 MR. JHANWAR HAS TAKEN US TO THE ORDER OF CIT(A) AND TRIBUNAL AND STRONGLY RELIED UP ON THE CIRCULAR DT. 18.5.1967 WHICH READS AS UNDER:- CTR ENCYCLOPAEDIA ON INDIAN TAX LAWS CIRCULAR F.NO. 91/58/66-ITJ(19) DT. 18 TH MAY 1967 BUSINESS EXPENDITURE SECTION 40(A)(II) RECENTLY A CASE HAS COME TO THE NOTICE OF THE BOARD WHERE THE ITO HAS DISALLOWED THE CESS PAID BY THE ASSESSEE ON THE G ROUND THAT THERE HAS BEEN NO MATERIAL CHANGE IN THE PROVISIONS OF S. 10( 4) OF THE OLD ACT AND S.40(A)(II) OF THE NEW ACT. 2.THE VIEW OF THE ITO IS NOT CORRECT. CLAUSE 40(A) (II) OF THE IT BILL 1961 AS INTRODUCED IN THE PARLIAMENT STOOD AS UNDER: (II) ANY SUM PAID ON ACCOUNT OF ANY CESS RATE OR TAX LEVIED ON THE PROFITS OR GAINS OF ANY BUSINESS OR PROFESSION OR ASSESSED AT A PROPORTION OF OR OTHERWISE ON THE BASIS OF ANY SUCH PROFITS OR GAIN S. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 37 WHEN THE MATTER CAME UP BEFORE THE SELECT COMMITTEE IT WAS DECIDED TO OMIT THE WORD CESS FROM THE CLAUSE. THE EFFECT O F THE OMISSION OF THE WORD CESS IS THAT ONLY TAXES PAID ARE TO BE DISALLOWED IN THE ASSESSMENTS FOR THE YEAR 1962-63 AND ONWARDS. 3.THE BOARD DESIRE THAT THE CHANGED POSITION MAY PL EASE BE BROUGHT TO THE NOTICE OF ALL THE ITOS SO THAT FURTHER LITIGATION O N THIS ACCOUNT MAY BE AVOIDED. RELIANCE WERE PLACED BY THE LD. COUNSEL FOR THE ASS ESSEE ON THE FOLLOWING JUDGMENTS; IN INSTALMENT SUPPLY (P) LTD & ORS VS/ UNION OF IND IA & ORS (1962) 2 SCR 644 IT HAS BEEN HELD AS UNDER:- 19. THERE IS ANOTHER ANSWER TO THE POINT OF RES JU DICATA RAISED ON BEHALF OF THE PETITIONERS RELYING UPON THE DECISION OF TH E PUNJAB HIGH COURT IN INSTALLMENT SUPPLY LTD NEW DELHI V STATE OF DELHI MANU/PH/0068/1956. IT IS WELL SETTLED THAT IN MATTERS OF TAXATION THER E IS NO QUESTION OF RES JUDICATA BECAUSE SUCH YEARS ASSESSMENT IS FINAL ON LY FOR THAT YEAR AND DOES NOT GOVERN LATER YEARS BECAUSE IT DETERMINES ONLY THE TAX FOR A PARTICULAR PERIOD. (SEE THE DECISION IN THE HOUSE O F LORDS IN SOCIETY OF MEDICAL OFFICERS OF HEALTH V. HOPE (VALUATION OFFIC ER) (1960) A.C. 551 APPROVING AND FOLLOWING THE DECISION OF THE PRIVY C OUNCIL IN BROKEN HILL PROPRIETARY COMPANY LIMITED V MUNICIPAL COUNCIL OF BROKEN HILL (1925) A.C. 94. IN GODREJ & BOYCE MANUFACTURING COMPANY LTD VS. DY. COMMISSIONER OF INCOME TAX & ORS (2017) 247 TAXMAN 361 AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 38 (SC) IT HAS BEEN HELD AS UNDER:- 33.WHILE ANSWERING THE SAID QUESTION THIS COURT CO NSIDERED THE OBJECT OF INSERTION OF SECTION 14A IN THE INCOME TAX ACT BY F INANCE ACT 2001 DETAILS OF WHICH HAVE ALREADY BEEN NOTICED. NOTICI NG THE OBJECTS AND REASONS BEHIND INTRODUCTION OF SECTION 14A OF THE A CT THIS COURT HELD THAT: EXPENSES ALLOWED CAN ONLY BE IN RESPECT OF EARNING OF TAXABLE INCOME. IN PARAGRAPH 17 THIS COURT WENT ON TO OBSERVE THAT : THEREFORE ONE NEEDS TO READ THE WORDS EXPENDITURE INCURRED IN SECTION 14A IN THE CONTEXT OF THE SCHEME OF THE ACT AND IF SO READ IT IS CLEAR THAT IT DISALLOWS CERTAIN EXPENDITURE INCURRED TO EARN EXEM PT INCOME FROM BEING DEDUCTED FROM OTHER INCOME WHICH IS INCLUDIBLE IN T HE TOTAL INCOME FOR THE PURPOSE OF CHARGEABILITY TO TAX. THE VIEWS EXPRESSED IN WALFORT SHARE AND STOCK BROK ERS P.LTD (SUPRA) IN OUR CONSIDERED OPINION YEAR AGAIN MILITATE AGAINST THE PLEA URGED ON BEHALF OF THE ASSESSEE. 34. FOR THE AFORESAID REASONS THE FIRST QUESTION F ORMULATED IN THE APPEAL HAS TO BE ANSWERED AGAINST THE APPELLANT-ASSESSEE B Y HOLDING THAT SECTION 14A OF THE ACT WOULD APPLY TO DIVIDEND INCO ME ON WHICH TAX IS PAYABLE UNDER SECTION 115-0 OF THE ACT. THE HONBLE HIGH COURT DECIDED THE ISSUE HOLDING TH AT; 12. WE HAVE HEARD COUNSEL FOR THE PARTIES. 13. ON THE THIRD ISSUE IN APPEAL NO.52/2018 IN VIE W OF THE CIRCULAR OF CBDT WHERE WORD CESS IS DELETED IN OUR CONSIDERE D OPINION THE TRIBUNAL HAS COMMITTED AN ERROR IN NOT ACCEPTING THE CONTENT ION OF THE ASSESSEE. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 39 APART FROM THE SUPREME COURT DECISION REFERRED THAT ASSESSMENT YEAR IS INDEPENDENT AND WORD CESS HAS BEEN RIGHTLY INTERPRE TED BY THE SUPREME COURT THAT THE CESS IS NOT TAX IN THAT VIEW OF THE MATTER WE ARE OF THE CONSIDERED OPINION THAT THE VIEW TAKEN BY THE TRIBU NAL ON ISSUE NO.3 IS REQUIRED TO BE REVERSED AND THE SAID ISSUE IS ANSWE RED IN FAVOUR OF THE ASSESSEE 40. WE THEREFORE RESPECTFULLY FOLLOWING THE JUDGME NT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT KOTA V/S CHAMBAL FERTILIZERS AND CHEMICALS LIMITED (SUPRA) FIND THAT THE FACTS OF THE CASE ARE IDENTICAL TO THE FACTS OF THE CASE IN APPE AL BEFORE US AND THUS ARE INCLINED TO HOLD THAT THE EDUCATION CESS I S NOT A TAX AND THUS IS AN EXPENDITURE U/S 37 OF THE ACT WHICH CAN NOT BE CLAIMED AGAINST THE PROFITS AND GAINS OF THE BUSINESS CARRI ED OUT BY THE ASSESSEE. THUS FINDING OF LD. CIT(A) IS REVERSED. THE ADDITIONAL GROUND NO.3 RAISED BY THE ASSESSEE FOR ASSESSMENT Y EAR 2012-13 AND GROUND NO.1 OF CROSS OBJECTION NOS. 23 & 34/IND /2019 FOR A.Y. 2013-14 & 2014-15 STANDS ALLOWED. 41. THE OTHER GROUNDS ARE GENERAL IN NATURE WHICH N EEDS NO ADJUDICATION. AGRAWAL COAL CORPORATION PVT. LTD ITA NO.801 TO 803/IND/2018 ITA NO.778/IND/2018 & CO NOS.23 &24/IND/2019 40 42. IN THE RESULT ALL THE THREE APPEALS OF THE REV ENUE ARE DISMISSED AND CROSS APPEAL AND CROSS OBJECTIONS FIL ED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28.11.2019. SD/- SD/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 28 TH NOVEMBER 2019 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR ITAT INDORE/GUARD FILE. BY ORDER ASSTT.REGISTRAR I.T.A.T. INDORE