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2014 (3) TMI 761 - HC - Income TaxPower of the Commissioner to invoke jurisdiction u/s 263 of the Act Allowability of claim of deduction u/s 80IB of the Act - Whether the circumstances warrant initiation of proceedings under section 263 of the Act by the Commissioner or not Held that:- The available material was incomplete according to him - This is the subjective satisfaction of the assessing authority - Though not satisfied with the material available, he still proceeded to opine that the claim of deduction has to be allowed - This is nothing short of non-application of mind - Most of the discussion and reasoning was in respect of a particular opinion of the officer but in the last sentence in the assessment order gives go by to that opinion - This is nothing short of erroneous view taken by the authority - there was no subjective satisfaction but still he proceeded to pass the order - Having proceeded to pass such erroneous order with incomplete material particulars, giving deduction as claimed by the assessee is prejudicial to the interest of the revenue. The subjective satisfaction is with regard to material particulars - How one gets these material particulars, could be from the documents produced by the assessee and if a doubt or suspicion arises in the mind of the assessing officer he has to make an enquiry and secure material which dispels his doubt or suspicion - The doubt expressed is a genuine one because of two reasons, that is, 'A' type flat is just 3 sq.ft.less than maximum measurement of the apartment and same family members had purchased adjacent apartments. Unless this is factually verified by spot inspection, it remains a doubt - When deductions are allowed under Section 80-1B several checks and balances are indicated - In order to give concession or benefit of deduction, the officer has to take into account whether there is any attempt to evade payment of tax - This is the primary duty of the department - In order to discharge this duty, the subjective satisfaction of the officer is very relevant thus, the Tribunal was not justified in setting aside the orders of the Commissioner and the Commissioner was justified in initiating proceedings u/s 263 of the Act Decided in favour of Revenue.
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