K.vinod Chandran, J v. Ita 94/11

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940 ITA.No. 94 of 2011 AGAINST THE ORDER/JUDGMENT IN ITA 295/COCH/2009 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 23-11-2010 APPELLANT/S:/RESPONDENT/REVENUE: THE COMMISSIONER OF INCOME TAX,TRIVANDRUM. BY ADV. SRI. PKR MENON SR. COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT/S:/APPELLANT/ASSESSEE: SREE RUBBER LATEX INDUSTRIES,PIN -695 004. CHALAKKUZHY ROAD, PATTOM P.O., THIRUVANANTHAPURAM, BY ADVS.SRI.ANIL D. NAIRSMT.NIVEDITA A.KAMATHSRI.J.R.PREM NAVAZ THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA 94/11 ITA No.94 of 2011 K.Vinod Chandran, J. The issue arising in the above appeal is as towhether an infrastructure development Company is entitledto deduction under Section 80-IA of the Income Tax Act,1961 without setting off loss/unabsorbed depreciationpertaining to the infrastructure (specifically, windmill), which was set off in earlier years against otherbusiness income of the assessee. The initial assessmentyear as referred to in sub-Section (5) of Section 80-IAwas held to be the year of claim of deduction underSection 80-IA and not the year of commencement ofeligible business as held by the High Court of Madras in(2012) 340 ITR 477 (Mad) [Velayudhaswamy Spinning MillsP. Ltd. v. Assistant Commissioner of Income Tax]. TheIncome Tax Appellate Tribunal in the instant case alsorelied on the cited decision to allow the appeal filed bythe assessee. The above view of the Madras High Courtwas approved by the Honourable Supreme Court by thedismissal of the Special Leave Petition, which order isreported in (2016) 243 Taxmann 438 (SC) [PrincipalCommissioner of Income Tax v. Cheran Spinning Mills (P.) Ltd.]. On a reading of the decision in VelayudhaswamySpinning Mills P. Ltd. (supra), we find ourselves inrespectable agreement with the same. In view of the above and also considering the factthat the Honourable Supreme Court has dismissed the SLPfiled against the judgment of the Madras High Court, weanswer the questions of law in favour of the assessee andagainst the Revenue and dismiss the appeal. No costs. K.VINOD CHANDRAN JUDGE ASHOK MENON JUDGE APPENDIX OF ITA 94/2011