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Madras High CourtTCA/408/2012dismissed

Commissioner Of Income Tax v. M/S Eastman Exports Global

2015-01-12Honourable Mr Justice R. Karuppiah,Honourable Mr Justice R. Sudhakar20 pages

In the High Court of Judicature at Madras Dated: 12.01.2015 Coram The Honourable Mr.JUSTICE R.SUDHAKAR and The Honourable Mr.JUSTICE R.KARUPPIAH Tax Case (Appeal) Nos.408, 409 of 2012, 17, 533, 534, 535, 593, 594, 965,of 2013, 108, 121, 197, 221, 264, 265, 307, 308, 699 to 713, 748, 868, 923, 1000 and 1015 of 2014 and connected Miscellaneous Petitions THE COMMISSIONER OF INCOME TAX, COIMBATORE.

..PETITIONER IN TCA.408, 409 OF 2012 AND 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713 OF 2014.

PETITIONER IN TCA.533, 534, 535, 593, 594 OF 2013, 108, 121, 197, 264, 265 OF 2014.

THE COMMISSIONER OF INCOME TAX, CIRCLE I, TIRUPPUR.

..PETITIONER IN TCA.748, 868, 923, 1000, 1015 OF 2014.

THE COMMISSIONER OF INCOME TAX, CHENNAI.

..PETITIONER IN TCA.17/13 965/13, 221/14, 307/14, 308/14.

-VsM/S.EASTMAN EXPORTS GLOBAL CLOTHING P. LTD., 10-12, KUMAR NAGAR SOUTH II STREET, TIRUPPUR.

..RESPONDENT IN TCA.408/12.

M/S.EASTMAN SPINNING MILLS [P] LTD., 16/17, KUMAR NAGAR SOUTH, TIRUPPUR.

..RESPONDENT IN TCA.409/12.

M/S.MSK CONSTRUCTION P. LTD., A-2, 75 UMA SHANTHI RESIDENCY HABIBULLAH ROAD, T.NAGAR, CHENNAI 17.

..RESPONDENT IN TCA.17/13.

M/S.EVERREADY SPINNING MILLS P. LTD., 23, JOTHI THEATRE ROAD, TIRUPPUR.

..RESPONDENT IN TCA.NO.533, 534 OF 2013, 701 OF 2014.

M/S.EMERALD JEWEL INDUSTRY [P]. LTD., 333, 2ND FLOOR, BIG BAZAAR STREET, COIMBATORE.

..RESPONDENT IN TCA.535/13 M/S.GVG PAPER MILLS LTD., 168/2, KIKANDHAR BATCH ST.

GANDHI NAGAR, UDUMALPET 642 154.

..RESPONDENT IN TCA.593, 594/13.

M/S.SAHUWALA FLOUR MILLS LTD., 56 NEW NO.27, NAMIAH MAISTRY STREET, CHENNAI 81.

..RESPONDENT IN TCA.965/13.

SHRI C.CHANDRAMOHAN NO.7, COTTON MILL STREET, P.N.RD., TIRUPPUR.

..RESPONDENT IN TCA.108/14.

M/S.VIKING KNITTERS 505,AVINASHI ROAD, TIRUPPUR.

..RESPONDENT IN TCA.121, 707/14.

M/S.VIKING TEXTILE [P] LTD., 505, AVINASHI ROAD, TIRUPPUR.

..RESPONDENT IN TCA.197/14.

M/S.PROTECTRON ELECTROMECH PVT.LTD., 9, ATHIPATTAN STREET, MOUNT ROAD, CHENNAI 1.

..RESPONDENT IN TCA.221/14.

M/S.DEFREE ENGINEERING P. LTD., S.F.No.125/2B, AVINASHI ROAD, NEELAMBUR POST, COIMBATORE 14.

..RESPONDENT IN TCA.264/14.

M/S.PUKANI TEXTILES P. LTD., 1239 INDIA HOUSE TRICHY ROAD, COIMBATORE 641 018.

..RESPONDENT IN TCA.265/14 M/S.PROTRECTRON ELECTROMECH PVT. LTD., 9, ATHIPATTAN STREET, MOUNT ROAD, CHENNAI 1.

..RESPONDENT IN TCA.307/14, 308/14.

M/S.VEDHA SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.699/13.

M/S.VELAYUTHASWAMY SPINNING MILLS P. LTD., 20/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.700/14.

M/S.ADISANKARA SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.702/14.

M/S.CHERAN SPINNING MILLS P. LTD., 20, DHARAPURAM ROAD, THILLAI NAGAR, TIRUPPUR.

..RESPONDENT IN TCA.703/14.

M/S.PANDIAN SPINNING MILLS P. LTD., 20, DHARAPURAM ROAD, THILLAI NAGAR, TIRUPPUR.

..RESPONDENT IN TCA.704/14.

M/S.CHOLA SPINNING MILLS P. LTD., 20, DHARAPURAM ROAD, THILLAI NAGAR, TIRUPPUR.

..RESPONDENT IN TCA.705/14.

M/S.PRABHU SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.706/14.

M/S.SIVARAJ SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.708/14.

M/S.SRI MATHA SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.709/14.

M/S.JAYAVARMA TEXTILES P. LTD., SF NO.237/1, P.N.ROAD, SAKTHI NAGAR NORTH, TIRUPPUR. ..RESPONDENT IN TCA.710/14. M/S.SUDHAN SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.711/14.

M/S.SHANMUGAVEL SPINNING MILLS P. LTD., 207/86, MANGALAM ROAD, KARUVAMPALAYAM, TIRUPPUR.

..RESPONDENT IN TCA.712/14.

M/S.VIKING KNITTERS, 4 VOC NAGAR, 1ST STREET, GANDHI NAGAR PO, TIRUPPUR.

..RESPONDENT IN TCA.713/14.

P.K.GANESHWAR 21, POLLACHI ROAD, PALLADAM, TIRUPPUR 641 664.

..RESPONDENT IN TCA.748/14.

M/S.GANGAI GARMENTS, 217/1, GANGAI GARDENS KAVILPALAYAM ROAD, SIRUPOOVALPATTI, TIRUPPUR.

..RESPONDENT IN TCA.868/14.

M/S.BALU EXPRORTS, 60, A-5, PALLADAM ROAD, ARULPURAM, TIRUPPUR.

..RESPONDENT IN TCA.923/14.

SRI A.P.DHANDAPANI 330/12, GOKULAKRISHNA NAGAR, RBS ALAMELU MAHAL, PALLADAM, TIRUPPUR.

..RESPONDENT IN TCA.1000/14.

M/S.PRABHATH MILLS ARUL INDUSTRIAL ESTATE ARULPURAM PALLADAM ROAD, TIRUPPUR 641 605 ..RESPONDENT IN TCA.1015 OF 2014. Prayer in TC[A].Nos.408, 409/12:

Appeals under Section 260 A of the Income Tax Act against the order dated 2.5.2012 made in I.T.A.Nos.301, 302,/Mds/2012 on the file of the Income Tax Appellate Tribunal 'A' Bench, Chennai for the Assessment years 2007-08, against the order of the Commissioner of Income Tax [A] II, ITA.No.449/09-10, 563/09-10 dated 25.10.2011 for the Assessment years 2007-2008 preferred against the order of Deputy Commissioner of Income Tax, Tiruppur dated 18.12.2009 dated 11.12.2009 made in PAN.Nos.AACCC095QE, AAACE4595R for the Assessment years 2007-2008 respectively.

Prayer in TC[A].No.17/2013.

Income Tax Appeal No.17/2013 filed under Section 260 A of Income Tax Act, 1961, against the order of the Income Tax Appellate Tribunal, 'D' Bench, Chennai dated 10/07/12 made in ITA.No.845/Mds/2012 for the Assessment year 2008-2009 against the order of Commissioner of Income Tax [Appeals V], Chennai dated 27.1.2012 made in ITA.No.141/2010-11 for the Assessment year 200809 against the order of Assistant Commissioner of Income Tax, Company Circle IV [3] I/C, Chennai dated 20.12.2010, made in PAN.G.I.No.AAACM2608R/Ms-13.

Prayer in TC[A].Nos.533, 534/13:

Appeals under Section 260 A of the Income Tax Act, 1961 against the common order of Income Tax Appellate Tribunal 'B' Bench, Chennai 'B' Bench, Chennai dated 5/1/2012 made in ITA.Nos.1774, 1775/Mds/2011 for the Assessment years 2007-08, 200809 against Commissioner of Income Tax Appeals, Coimbatore dated 21.7.2011 and 10.07.2011 made in ITA.478/09-10, and 2/10-11 for the Assessment years 2007-08, 2008-09 against the order of the Additional Commissioner of Income Tax Tiruppur Range, Tiruppur dated 31.3.2010, made in PAN.No.AAACE4788J for the assessment year 2008-09 also the order of Deputy Commissioner of Income Tax Company Circle, Tiruppur dated 24.12.2009 made in PAN.GIR.No.AAACE4788J, for the Assessment years 2007-2008 respectively. Prayer in TC[A].535/13:

Income Tax Appeal filed under Section 260-A of the Income Tax, 1961 against the order of the Income Tax Appellate Tribunal Madras 'B' Bench dated 19.3.2012 made in ITA.Nos.1635/Mds/2011, for the assessment years 2008-09 against the order of the commissioner of Income Tax [Appeals], Coimbatore dated 19.7.2011 in ITA.No.302/10-

11 for the assessment year 2008-09 against the order of Deputy Commissioner of Income Tax, Company Circle 1[3] Coimbatore dated 27.12.2010 made in PAN.GIR.No.AABCE3430A for the Assessment year 2008-09.

Prayer in TC.[A].Nos.593, 594/13:

TC[A].Nos.593, 594/13 filed under Section 260-A of the Income Tax Act, 1961 against the common order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 13/1/12 made in ITA.Nos.854, 856/Mds/11 for the Assessment years 2007-08 and 2003-04 against the order of Commissioner of Income Tax Appeals II, Coimbatore dated 15.2.2011 made in ITA.18/09-10 for the assessment year 2007-08 and also Commissioner of Income Tax Appeals II, Coimbatore dated 2.5.2007 made in ITA.No.71-C/06-07 for the Assessment year 2003-04 and against the order of the Asst. Commissioner of Income Tax, Coimbatore dated 17/8/2009 and 28/3/2006 made in PAN.No.AABCG1438N and PAN No.AAABCG1438N for the Assessment years 2007-08, 2003-04 respectively.

Prayer in TC[A].965/13:

Income Tax[A].965/13 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal Madras 'D' Bench dated 25/6/2013, Chennai made in ITA.No.681/Mds/2013 for the Assessment Years 2009-10, against the order of the Commissioner of Income Tax [A] [IX], Chennai 34 dated 21/12/12 made in ITA.157/11-12 for the Assessment year 2009-10 against the order of the Assistant Commissioner of Income Tax, Business Circle VII, Chennai dated 30.12.2011 made in PAN.GIR.No.AABFS8827N for the Assessment year 2009-10. Prayer in TC[A].No.108/2014:

TC[A].No.108/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'C' Bench, Chennai dated 24.1.2013 made in ITA.Nos.1940/Mds/2012 for the Assessment years 2009-10 against the order of the Commissioner of Income Tax Appeals made in ITA.No.209/1172 for the Assessment year 2009-10 dated 27.7.2012 against the order of the Joint Commissioner of Income Tax, Tiruppur Range dated 29.12.2011 made in PAN.GIR.No.ACMPC8334K, for the Assessment year 2009-10. Prayer in TC.[A].121/14 :

TC[A].No.121/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'D' Bench, Chennai dated 29/8/2013 made in ITA.No.605/Mds/2013 for the Assessment year 2009-10 against the order of the Commissioner of the Income Tax Appeals II, Coimbatore dated 30.1.2013 made in ITA.No.214/11-12 for the Assessment year 2009-10 against the order of the Joint Commissioner of Income Tax, Tiruppur dated 27.12.2001 made in PAN.GIR.AABFV8542R, for the Assessment year 2009-10. Prayer in TC[A].No.197/2014 :

TC[A].No.197/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'D' Bench, Chennai dated 29.8.2013 made in ITA.No.604/Mds/2013 for

the Assessment years 2009-10 against the order of the Commissioner of Income Tax Appeals II, Coimbatore dated 30.1.2013 made in IRA.No.210/11-12 for the Assessment year 2009-10 against the order of the Joint Commissioner of Income Tax Tiruppur range dated 28.12.2011 made in PAN/GIR/No.AAACV7564P for the Assessment year 2009-10.

Prayer in TC[A].No.221/2014 :

TC[A].No.221/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal Chennai dated 11.4.2013 made in ITA.No.157/Mds/2013 for the Assessment year 2009-10 against the order of the Commissioner of Income Tax [Appeals] V, Chennai dated 31.10.2012 made in ITA.No.366/2011-12 for the Assessment year 2009-10 against order of Income Tax, Company Circle V[2] Chennai dated 22/12/2011 made in PAN.No.AABCP1103B, for the Assessment year 2009-10. Prayer in TC[A].No.264/2014 :

TC[A].No.264/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Chennai dated 6/11/2013 made in ITA.Nos.1721/Mds/2013 for the assessment year 2010-11 against the order of the commissioner of Income Tax [Appeals] 1, Coimbatore dated 27/06/2013 made in Appeal NO.116/12-13 against the order of Order of Deputy Commissioner of Income tax, company Circle - 1[1] Coimbatore dated 16/1/2013 made in PAN/GIR.No.AAACD7943E, for the assessment year 2010-11. Prayer in TC[A].No.265/2014 :

TC[A].No.265/2014 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'C' Bench, Chennai dated 6.11.13 made in ITA.No.1722 / Mds/2013 for the Assessment years 2001-11 against the order of the Commissioner of Income Tax [A], Coimbatore dated 31.5.2015 made in Appeal No.125 / 12-13 for the Assessment years 2010-11 against the order of Assistant Commissioner of Income Tax, Company Circle 1[1], Coimbatore dated 31.12.12 made in PAN/GIR/No.AABCP7909D, for the Assessment years 2010-11.

Prayer in TC[A].No.307, 308/14:

TC[A].Nos.307, 308/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'D' Bench, Chennai dated 23.1.2013 made in ITA.Nos.543, 544/Mds/2012 for the Assessment years 2003-04 and 2008-09 against order of the Commissioner of Income Tax Appeals, Chennai dated 29.12.2011 and 30.12.2011 made in ITA.Nos.324/10-11, 326/10-11 for the Assessment years 2008-09 and 2003-2004 against the order of the Assistant Commissioner of Income tax Company Circle V[2] Chennai dated 31.12.2010 made in PAN.GIR No.AABCP1103B for the Assessment years 2003-04, 2008-09 respectively.

Prayer in TC[A].No.699/14 TC[A].No.699/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12.2.2013 made in ITA.No.1842/Mds/2013, for the Assessment years 2010-2011 against the Order of the

Commissioner of Income Tax Appeals II, COimbatore dated 31.7.2013 made in ITA.No.33/13-14 for the Assessment year 2010-11, against the order of the Deputy Commissioner of Income Tax, company Circle, Tiruppur dated 15/3/2013 made in PAN/GIR.No.AABCV2433Q for the Assessment years 2010-11.

Prayer in TC[A].No.700/14 TC[A].No.700/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12.2.2014 made in 1843/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax Appeals II, Coimbatore dated 31.7.2013 made in ITA.No.32/13-14 for the Assessment years 2010-11 against the order of the Deputy Commissioner of Income Tax, Company Circle, Tiruppur dated 15.3.2013 made in PAN/GIR.No.AADCS0676C for the Assessment years 2010-11.

Prayer in TC[A].No.701/14 TC[A].No.701/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12.2.2014 made in ITA.No.1844/Mds/2013 for the Assessment years 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013 made in ITA.Nos.111/13-14 for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Company Circle, Tiruppur dated 15/3/2013 made in PAN.GIR.No.AAACE4788J for the Assessment year 2010-11.

Prayer in TC[A].No.702/14 TC[A].No.702/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/02/2014 made in ITA.No.1845/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax Appeals II, Coimbatore dated 31.7.2013 made in ITA.No.26/13-14 for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax Company Circle, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AABCA5198B for the Assessment year 2010-11.

Prayer in TC[A].No.703/14 TC[A].No.702/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Madras 'A' Bench, dated 12/02/2014 made in ITA.No.1846/Mds/2013, for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] -II, Coimbatore dated 31.7.2013 made in ITA.No.28/13-14 for the assessment year 2010-11, against the order of the Deputy Commissioner of Income Tax, Company Circle Tiruppur dated 15.3.2013 made in PAN/GIR.No.AAACC8788L, for the Assessment year 2010-11. Prayer in TC[A].No.704/14 TC[A].No.702/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal Madras 'A' Bench, dated 12.2.2014 made in ITA.No.1847/Mds/2013 for the Assessment year 2010-11 against order of the Commissioner of

Income Tax Appeals II, Coimbatore dated 31.7.2013, made in ITA.No.108/13-14, for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Company Circle, Tiruppur dated 15.3.2013 made in PAN/GIR.No.AABCP5926A, for the Assessment year 2010-11.

Prayer in TC[A].No.705/14 Prayer in TC[A].No.705/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12.2.2013 made in ITA.No.1848/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax Appeals II, Coimbatore dated 31.7.2013, made in ITA.No.110/13-10, for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Company circle, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AAACC8791P, for the Assessment year 2010-11. Prayer in TC[A].No.706/14 TC[A].No.706/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITANo.

1849/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals], Coimbatore dated 31.7.2013, made in ITA.No.31/13-14, for the Assessment year 2010-11 against the order of the Joint Commissioner of Income Tax, Tiruppur Range, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AABCP0750E,for the Assessment year 2010-11.

Prayer in TC[A].No.707/14 TC[A].No.706/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITANo.1850/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013, made in ITA.No.35/13-14, for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Company Circle, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AAACV7564P, for the Assessment year 2010-11.

Prayer in TC[A].No.708/14 TC[A].No.708/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITANo.1851/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals-II], Coimbatore dated 31.7.2013, made in ITA.No.25/13-14, for the Assessment year 2010-11 against the order of the Joint Commissioner of Income Tax, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AADC50681H, for the Assessment year 2010-11. Prayer in TC[A].No.709/14 TC[A].No.709/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITANo.1852/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals]II, Coimbatore dated 31.7.2013, made in

ITA.No.34/13-14, for the Assessment year 2010-11 against the order of the Joint Commissioner of Income Tax, Tiruppur Range, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AAEC571881Q, for the Assessment year 2010-11.

Prayer in TC[A].No.710/14 TC[A].No.710/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITA.No.1853/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013, made in ITA.No.106/13-14, for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Tiruppur Range, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AAACJ7660G,for the Assessment year 2010-11.

Prayer in TC[A].No.711/14 TC[A].No.711/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITA.No.1854/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013, made in ITA.No.29/13-14, for the Assessment year 2010-11 against the order of the Deputy Commissioner of Income Tax, Company Circle, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AADCS0670E,for the Assessment year 2010-11.

Prayer in TC[A].No.712/14 TC[A].No.712/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 12/2/14 made in ITANo.1855/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013, made in ITA.No.30/13-14, for the Assessment year 2010-11 against the order of the Joint Commissioner of Income Tax, Tiruppur Range, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AADC58200N, for the Assessment year 2010-11.

Prayer in TC[A].No.713/14 TC[A].No.713/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal dated 12/2/14 made in ITANo.1856/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 31.7.2013, made in ITA.No.49/12-13, for the Assessment year 2010-11 against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 15.3.2013 made in PAN.GIR.No.AABFV8542R, for the Assessment year 2010-11. Prayer in TC[A].No.748/14 TC[A].No.748/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'D' Bench, Chennai dated 24/3/14 made in ITA.No.118/Mds/2014 for the Assessment year 2010-11 against the order of the Commissioner

of Income Tax [Appeals] II, Coimbatore dated 30/10/2013, made in CIT[A] in ITA.No.130/12-13, for the Assessment year 2010-11 against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 04.2.2013 made in PAN.GIR.No.ADFPG6476N, for the Assessment year 2010-11.

Prayer in TC[A].No.868/14 TC[A].No.868/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'B' Bench, Chennai dated 22/5/14 made in ITAT in ITA.No.597/Mds/2014 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals] II, Coimbatore dated 23/12/2013, made in ITA.No.60/12-13, for the Assessment year 2010-11 against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 10/12/12 made in PAN.GIR.No.AABFG9171H, for the Assessment year 2010-11. Prayer in TC[A].No.923/14 TC[A].No.923/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 28/5/14 made in ITA.No.

690/Mds/2014 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals], Coimbatore dated 23/12/2013, made in IT Appeal.No.144/12-13, against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 15.2.2013 made in PAN.GIR.No.AACFB2805L, for the Assessment year 2010-11. Prayer in TC[A].No.1000/14 TC[A].No.1000/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'A' Bench, Chennai dated 28/5/14 made in ITA.No.692/Mds/2014 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals], Coimbatore dated 24/12/2013, made in ITA.No.131/12-13, for the Assessment year 2010-11 against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 12/2/2013 made in PAN.GIR.No.

ADLPD25469G, for the Assessment year 2010-11.

Prayer in TC[A].No.1015/14 TC[A].No.706/14 filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal 'D' Bench, Chennai dated 8/5/14 made in ITAT in ITA.No.1996/Mds/2013 for the Assessment year 2010-11 against the order of the Commissioner of Income Tax [Appeals], Coimbatore dated 29/08/2013, made in ITA.No.75/12-13, for the Assessment year 201011 against the order of the Assistant Commissioner of Income Tax, Circle 1, Tiruppur dated 27/12/2012 made in PAN.GIR.No.AADFP7442E, for the Assessment year 2010-11.

For Appellant in T.C.(A)Nos.408, 409 of 2012, 17, 533, 534, 535, 593, 594 of 2013 965,of 2013, 197, 221, 264, 265, 307 & 308 of 2014 : Mr.T.R.Senthil Kumar Standing counsel for Income Tax T.C.(A)Nos.699 to 713, of 2014 : Mr.K.Suresh Kumar Standing counsel for Income Tax T.C.(A)Nos.108, 121, 748, 868, 923, 1000 and 1015 of 2014 : Mr. M.Swaminathan Standing counsel for Income Tax For Respondent in (i) T.C.(A)Nos.408 & 409/12 : Mr.R.Senniappan (ii) T.C.(A)Nos.17,535,593,594, 264, 265 of 2014 : Mr.S.Sridhar (iii) T.C.(A)Nos.533, 534 of 2013 and 121, 197, 699 to 713 of 2014 965/13, 108, 221, 307 & 308/2014 : Mr.R.Sivaraman (iv) T.C.(A)Nos.748, 868, 923 1000 and 1015 of 2014 : Mr.R.Kumar for Mr.T.N.Seetharaman C O M M O N J U D G M E N T (Delivered by R.SUDHAKAR,J.) In all the above Tax Case (Appeals), the issue raised by the Revenue is identical. Hence, all the above appeals are taken up together and common order is passed.

2. The common facts, which are not in dispute, in all the above Tax Case (Appeals) are that the assessees, who are eligible business undertaking, are engaged in the business of generation of power. They claimed deduction in respect of profits derived from the wind mill operation (WTG) under Section 80IA of the Income Tax Act falling under Chapter VIA of the Income Tax Act. The Assessing Officer disallowed the assessees' claim under Section 80IA of the Income Tax Act primarily on the ground that carried forward loss of earlier years should be set off before computing the profit for the current year. Aggrieved by the said order of the Assessing Officer, the assessees preferred appeals before the Commissioner of Income Tax (Appeals), who allowed the appeals of the assessees, thereby reversed the order of the Assessing Officer.

As against the said order of the Commissioner of Income Tax (Appeals), the Revenue preferred appeals before the Income Tax Appellate Tribunal. The Tribunal, following the decision of this Court reported in (2012) 340 ITR 477 (Velayudhaswamy Spinning Mills V. Asst. CIT), dismissed the appeals filed by the Revenue. Aggrieved by the said order of the Tribunal, the Revenue is before this Court.

3. The core issue raised in all the above Tax Case (Appeals) is Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the respondent/assessee in each appeal is entitled to claim deduction under section 80-IA of the Income Tax Act.

4. Learned counsel appearing for the assessee submitted that the issue involved in these appeals have already been decided by this Court in the decision reported in (2012) 340 ITR 477 (Velayudhaswamy Spinning Mills V. Asst. CIT) and hence the same may be followed in these cases also.

5. It is stated by the learned Standing Counsel appearing for the Revenue that as against the decision rendered by this Court in the case of Velayudhaswamy Spinning Mills V. Asst. CIT reported in (2012) 340 ITR 477, the Revenue preferred appeals before the Supreme Court and the same are pending.

6. Heard learned counsel appearing for the assessees and the learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court.

7. In the decision reported in (2012) 340 ITR 477 (Velayudhaswamy Spinning Mills V. Asst. CIT), this Court, while dealing with the benefit under Chapter VIA of the Income Tax Act, placed reliance on the decision reported in (2009) 317 ITR 218 (SC) ( Liberty India V. CIT), wherein the Supreme Court considered the scope of Section 80I, 80IA and 80IB of the Income Tax Act and held that Chapter VI-A provides for incentives in the form of tax deductions essentially belong to the category of "profit-linked incentives". This Court also placed reliance on the decision reported in (2004) 271 ITR 311 (Raj) (CIT V. Mewar Oil and General Mills Ltd.), and came to the conclusion that once the losses and other deduction have set off against the income of the previous year, it should not be reopened again for the purpose of computation of current year income under Section 80I or 80IA of the Income Tax Act and the assessee should not be denied the admissible deduction under Section 80IA of the Income Tax Act.

8. For better understanding of the decision, we extract the relevant portion of the decision of this Court as such: "From a reading of the above, it is clear that the benefit is given to the profits and gains derived from the business of the hotel or the business of repairs to ocean-going vessels or other powered craft. The deduction is allowed to the extent of 20 per cent. from the profits and gains of the assessee. Sub-section (5) gives deduction for the period of seven assessment years immediately succeeding the initial assessment year. Sub-section (6) deals with computing the deduction under sub-section (1) and it starts with non obstante clause and also it is a deeming provision. The fiction created by the undertaking was the only source of income during the previous year initially and

subsequent assessment years. Sub-section (6) was the subject-matter before this court in the above-mentioned unreported judgment, wherein this court had held that while interpreting the above provision, for the purpose of allowing deduction under section 80-I brought forward losses and unabsorbed depreciation of the new industry need not be taken into consideration once they have been set off from other sources of income earlier. In the present case, we are concerned with the provision of section 80-IA. The said provision was introduced by the Finance Act, 1999, with effect from April 1, 2000. The provisions of sections 80-I and 80IA are also more or less identically worded. Sections 80-I and 80-IA come in Chapter VI-A of the Income-tax Act. Chapter VI-A deals with deductions to be made in computing total income.

There are two tax incentives contemplated in Chapter VI-A. One is investment incentive and the other one is profit-linked investment. Chapter VI-A was introduced by the Finance Act, 1965, with effect from April 1, 1965, and it consists of four headings. They are A, B, C and D. Heading "A" is general and it also contains definition. It consists of sections 80A, 80AA, 80AB, 80AC and 80B.

"Where any deduction is required to be made or allowed under any section included in this Chapter under the heading 'C-Deductions in respect of certain incomes' in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provisions of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income."

A mere reading of the above provision makes it clear that any income of the nature specified in that section, which is included in the gross total income of the assessee for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in the gross total income. Section 80AB defines "gross total income" which means the total income has to be computed in accordance with the Act before making deduction under this Chapter. Heading "B" deals with "deductions in respect of certain payments" which consists of sections 80C to

80GGC. Heading "C" deals with "deductions in respect of certain incomes", which consists of sections 80H to 80TT. The last heading "D" deals with "other deductions" which consists of sections 80U to 80V. Heading "C" is relevant for considering the issue in these appeals. The relevant provisions that are to be considered are sections 80-I, 80-IA and 80-IB. In the case of Liberty India v. CIT [2009] 317 ITR 218 (SC) ; [2009] 225 CTR (SC) 233 ; [2009] 28 DTR (SC) 73, the apex court considered the scope of sections 80-I, 80-IA and also section 80-IB of the Act, wherein, it has been held that Chapter VI-A provides for incentives in the form of tax deductions essentially belong to the category of "profit-linked incentives".

Therefore, when section 80-IA/80-IB refers to profits derived from eligible business, it is not the ownership of that business which attracts the incentives. Further, it has been held that sections 80-IB/80-IA are the code by themselves as they contain both substantive as well as procedural provisions. The Supreme Court further observed in the said judgment that sub-section (5) of section 80-IA provides for manner of computation of profits of an eligible business. Accordingly such profits are to be computed as if such eligible business is the only source of income of the assessee.

"80-IA. (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business) there shall, in accordance with and subject to the provisions of this section, be allowed in computing the total income of the assessee, a deduction of an amount equal to hundred per cent. of the profits and gains derived from such business for ten consecutive assessment years.

(2) The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any ten consecutive assessment years out of fifteen years beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops an industrial park or develops a special economic zone referred to in clause (iii) of sub-section (4) or generates power or commences transmission or distribution or power or undertakes substantial renovation and modernisation of the existing transmission or distribution lines.

(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 :

(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 April, 1995.

(5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of subsection (1) apply shall, for the purposes of determining the quantum of deduction under that subsection 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 during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made."

From a reading of sub-section (1), it is clear that it provides that where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in subsection (4), i.e., referred to as the eligible business, there shall, in accordance with and subject to the provisions of the section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to 100 per cent. of the profits and gains derived from such business for ten consecutive assessment years. Deduction is given to eligible business and the same is defined in sub-section (4). Sub-section (2) provides option to the assessee to choose 10 consecutive assessment years out of 15 years. Option has to be exercised, if it is not exercised, the assessee will not be getting the benefit.

Fifteen years is outer limit and the same is beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure activity, etc. Sub-section (5) deals with quantum of deduction for an eligible business. The words "initial assessment year" are used in sub-section (5) and the same is not defined under the provisions.

section (5) is different from the words "beginning from the year" referred to in sub-section (2). The important factors are to be noted in sub-section (5) and they are as under :

"(1) It starts with a non obstante clause which means it overrides all the provisions of the Act and other provisions are to be ignored ;

(2) It is for the purpose of determining the quantum of deduction ;

(3) For the assessment year immediately succeeding the initial assessment year ;

(4) It is a deeming provision ;

(5) Fiction created that the eligible business is the only source of income ; and

(6) During the previous year relevant to the initial assessment year and every subsequent assessment year." From a reading of the above, it is clear that the eligible business were the only source of income, during the previous year relevant to the initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were already set off against the income of the assessee. Looking forward to a period of ten years from the initial assessment is contemplated.

It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business. Once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it notionally. A fiction created in sub-section does not contemplates to bring set off amount notionally. The fiction is created only for the limited purpose and the same cannot be extended beyond the purpose for which it is created. In the present cases, there is no dispute that losses incurred by the assessee were already set off and adjusted against the profits of the earlier years.

During the relevant assessment year, the assessee exercised the option under section 80-IA(2). In Tax Case Nos. 909 of 2009 as well as 940 of 2009, the assessment year was 2005-06 and in Tax Case No. 918 of 2008 the assessment year was 2004-05. During the relevant period, there were no unabsorbed depreciation or loss of the eligible undertakings and the same were already absorbed in the earlier years. There is a positive profit during the year.

of sub-section (6) of section 80-I, which is the corresponding provision of sub-section (5) of section 80-IA. Both are similarly worded and, therefore, we agree entirely with the Division Bench judgment of this court cited supra. In the case of CIT v. Mewar Oil and General Mills Ltd. (No. 1) [2004] 271 ITR 311 (Raj) ; [2004] 186 CTR (Raj) 141, the Rajasthan High Court also considered the scope of section 80-I and held as follows (page 314 of 271 ITR) :

"Having considered the rival contentions which follow on the line noticed above, we are of the opinion that on finding the fact that there was no carry forward losses of 1983-84, which could be set off against the income of the current assessment year 1984-85, the recomputation of income from the new industrial undertaking by setting off the carry forward of unabsorbed depreciation or depreciation allowance from previous year did not simply arise and on the finding of fact noticed by the Commissioner of Income-tax (Appeals), which has not been disturbed by the Tribunal and challenged before us, there was no error much less any error apparent on the face of the record which could be rectified.

That question would have been germane only if there would have been carry forward of unabsorbed depreciation and unabsorbed development rebate or any other unabsorbed losses of the previous year arising out of the priority industry and whether it was required to be set off against the income of the current year. It is not at all required that losses or other deductions which have already been set off against the income of the previous year should be reopened again for computation of current income under section 80-I for the purpose of computing admissible deductions thereunder.

In view thereof, we are of the opinion that the Tribunal has not erred in holding that there was no rectification possible under section 80-I in the present case, albeit, for reasons somewhat different from those which prevailed with the Tribunal. There being no carry forward of allowable deductions under the head depreciation or development rebate which needed to be absorbed against the income of the current year and, therefore, recomputation of income for the purpose of computing permissible deduction under section 80-I for the new industrial undertaking was not required in the present case.

Accordingly, this appeal fails and is hereby dismissed with no order as to costs."

From a reading of the above, the Rajasthan High Court held that it is not at all required that losses or other deductions which have already been set off against the income of the previous year should be reopened again for computation of current income under

section 80-I for the purpose of computing admissible deductions thereunder. We also agree with the same. We see no reason to take a different view.

The standing counsel appearing for the Revenue is unable to bring to our notice any relevant material or any compelling reason or any contra judgment of other courts to take a different view. He only relied heavily on the Memorandum explaining the provisions in the Finance (No. 2) Bill, 1980, [1980] 123 ITR (St.) 154 to support this case and the same reads as follows : "Clause 30(iii). In computing the quantum of 'tax holiday' profits in all cases, taxable income derived from the new industrial units, etc., will be determined as if such units were an independent unit owned by a taxpayer who does not have any other source of income. In the result, the losses, depreciation and investment allowance of earlier years in respect of the new industrial undertaking, ship or approved hotel will be taken into account in determining the quantum of deduction admissible under the new section 80-I even though they may have been set off against the profits of the taxpayer from other sources."

We are not agreeing with the counsel for the Revenue. We are, therefore, of the view that loss in the year earlier to the initial assessment year already absorbed against the profit of other business cannot be notionally brought forward and set off against the profits of the eligible business as no such mandate is provided in section 80-IA(5).

Under these circumstances, we set aside the order of the Tribunal and answer all the questions in favour of the appellant/assessee and against the Revenue in Tax Case Nos. 909 and 940 of 2009 respectively. Accordingly, tax cases are allowed.

9. It is relevant to note that as against the above-said decision rendered by this Court, the Revenue has filed appeals before the Supreme Court, which are stated to be pending, in which, only notice was ordered and were not yet admitted by the Supreme Court.

10. The facts in the present batch of cases are also identical to the above-said decision of this Court that all the business undertakings are wind mills and they have claimed the benefit of deduction under Section 80IA of the Income Tax Act for the assessment years in question and for the subsequent years as well. Having exercised their option and their losses have been set off already against other income of the business enterprise, the assessee in each of the appeal falls within the parameters of Section 80IA of the Income Tax Act. In the decision reported in (2012) 340 ITR 477 (Velayudhaswamy Spinning Mills V. Asst. CIT), there appears to be no distinction on facts. In fact, in the

present batch of appeals, the Revenue has filed appeals as against the said assessee, viz., Velayudhaswamy Spinning Mills for the subsequent assessment year on the same contention raised in respect of the earlier assessment year.

11. We, therefore, taking note of the decision rendered by this Court in the case of Velayudhasamy Spinning Mills (supra) and respectfully agreeing with the reasoning rendered by this Court, we are inclined to dismiss all the above Tax Case (Appeals), thereby confirm the order passed by the Tribunal.

12. In view of the above, the questions of law raised and admitted by this Court are answered against the Revenue and in favour of the assessee. Accordingly, the above Tax Case (Appeals) are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.

Sd/- Asst. Registrar.

/true copy/ Sub Asst. Registrar.

sl To 1] The Income Tax Appellate Tribunal, 'A' Bench, 'B' Bench, 'C' Bench, Chennai.

2. The Commissioner of Income Tax, Appeals I/II, IX, V , Coimbatore.

3. The Additional Commissioner of Income Tax, Tiruppur Range, Tiruppur.

4. The Chief Commissioner of Income Tax, Tiruppur Range, Tiruppur.

5. The Deputy Commissioner of Income Tax, Company Circle, Tiruppur.

6. The Commissioner of Income Tax, Appeals V, 121, Mahatma Gandhi Road, Chennai 600 036.

7. The Assistant Commissioner of Income Tax, Company Circle IV, Chennai.

8. The Deputy Commissioner of Income Tax, Company Circle 1[3], Coimbatore.

9. The Assistant Commissioner of Income Tax, Circle 1, Coimbatore.

10. The Assistant Commissioner of Income Tax, Business Circle VII, Chennai.

11. The Joint Commissioner of Income Tax, Range V, Coimbatore.

12. The Joint Commissioner of Income Tax, Tiruppur.

13. The Assistant Commissioner of Income Tax, Company circle V[2], Chennai.

14. The Assistant Commissioner of Income Tax, Circle 1, Tiruppur.

+1 CC to Mr.R.Sivaraman, Advocate SR 2203 +3 CCs to Mr.T.N.Seethuraman, Advocate SR No.2181, 2344, 2345 + 1 CC to Mr.R.Senniappan, Advocate SR NO 2182 + 4 CC to Mr.S.Sridhar, Advocate sr 1874 + 22 CCs to Mr.M.Swaminathan, Advocate SR NO 1710 + 15 CCs to Mr.T.R.Senthil kumar, Advocate SR NO 1709 Tax Case (Appeal) Nos.408, 409 of 2012 etc. batch jp[cp] gp/16.3.2015