The Commissioner Of Income Tax,Central Iv, Chennai-34 v. M/S.sas Hotels & Enterprises Ltd.,Chennai-17

In the High Court of Judicature at Madras Dated : 29.9.2015 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN The Honourable Mr.Justice T.MATHIVANAN The Commissioner of Income Tax,Central IV, Chennai-34....Appellant inall the appeals Vs M/s.SAS Hotels & Enterprises Ltd.,Chennai-17. ...Respondent inall the appeals TAX CASE APPEALS under Section 260A of the Income Tax Act, 1961against the common order dated 30.5.2011 made respectively inI.T.A.Nos. 477 to 479/(Mds)/2011 on the file of the Income TaxAppellate Tribunal 'A' Bench, Chennai, for the assessment years 2003-04, 2004-05 and 2005-06 as against the order dated 27.12.2010 inI.T.A.No.202/09-10 and 191/09-10 on the file of the Commissioner ofIncome Tax, (Appeals)-I, Chennai for the assessment year 2003-04, and2004-05 and 2005-2006 in PAN/GIR No. and as against theorder dated 31.12.2009 on the file of the Assistant Commissioner ofIncome Tax,(Appeals)-I, Chennai for the assessment year 2005-06 isPAN/GIR NO.AAECS1194C These appeals are filed by the Revenue under Section 260-A ofthe Income Tax Act, 1961 raising the following substantial questionsof law : https://hcservices.ecourts.gov.in/hcservices/ "(i) Whether the Appellate Tribunal wascorrect in following the earlier order of theTribunal in assessee's own case without verifyingthe nature of issue therein? (ii) Whether the Tribunal is correct inobserving that this Court has not so fardelivered any judgment against the order of theTribunalinI.T.A.No.2176/Mds/2008withoutconsidering the reported decision in (2011) 16Taxmann.com 34 of the very same assessee ? and (iii) Whether under the facts andcircumstances of the case, the Income TaxAppellate Tribunal is right in law in holdingthat the assessee is entitled to deduction underSection80IAwithoutsettingoffthelosses/unabsorbed depreciation pertaining to thewindmill, which were set off in the earlier yearagainst other business income of the assessee ?" 2. Though on the questions 1 and 2, the appellant/Revenue isentitled to have our answers in their favour, we did not think fit toadmit the appeal and order notice, in view of the fact that in anycase, the third question of law has to be answered against theappellant/Revenue, which would eventually lead to the dismissal ofthe appeal. Therefore, without ordering notice of admission, we havetaken up the appeal. 3. In so far as the questions 1 and 2 are concerned, the samerelates to a finding recorded by the Tribunal as though the issue onhand was covered by the decision of the Tribunal inI.T.A.No.2176/Mds/2008. But, the decision of the Tribunal inI.T.A.No.2176/Mds/2008 related to the method of accounting. Theappeal filed by the Department was already disposed of in favour ofthe same assessee in 2011 (16) Taxmann.com 34. The case on hand hasnothing to do with the decision rendered in I.T.A.No.2176/ Mds/2008.Therefore, the finding of the Tribunal in relation to this aspect isclearly erroneous and the questions 1 and 2 are liable to be answeredin favour of the appellant. 4. However, on question No.3, we have already held in C.I.T. Vs.Yuvaraj [T.C.A.No.163 of 2015 dated 21.4.2015], following thedecision of this Court in Velayudhaswamy Spinning Mills Vs Asst.CIT [2012) 340 ITR 477] that the Tribunal was right in holding thatthe assessee is entitled to deduction under Section 80IA withoutsetting off the losses/unabsorbed depreciation pertaining to thewindmill. The decision in Velayudhaswamy Spinning Mills followed thedecision of the Supreme Court in Liberty India Vs CIT [2009) 317 ITR218 (SC)]. https://hcservices.ecourts.gov.in/hcservices/ 5. Though we are inclined to answer questions 1 and 2 in favourof the appellant/Revenue, the appeal is dismissed in view of the factthat the same result would follow on account of our answer to thequestion No.3. Consequently, the above MPs are also dismissed. Sd/- Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ 5. Though we are inclined to answer questions 1 and 2 in favourof the appellant/Revenue, the appeal is dismissed in view of the factthat the same result would follow on account of our answer to thequestion No.3. Consequently, the above MPs are also dismissed. Sd/- Asst.Registrar /true copy/ Sub Asst. RegistrarTo1.The Income Tax Appellate Tribunal 'A' Bench, Chennai. 2.The Commissioner of Income Tax (Appeals)INungambakkam Chennai-343.The Assistant Commissioner of Income Tax,Central Circle (2) Chennai-34.+1 cc to Mr.T.R.Sentilkumar, Advocate sr.53141T.C.A.Nos.741 to 743 of 2015and M.P.Nos.1 and 1 of 2015svl(co)aa09/10/2015