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2015 (10) TMI 319 - AT - Income TaxRevision u/s 263 - assessee’s claim of deduction u/s 80IA(4)(iii) in respect of Capella Industrial Park not considered by AO - Held that:- There is no dispute to the fact that assessee has developed industrial park, which is an eligible business activity u/s 80IA(4)(iii), hence, assessee is entitled to avail deduction in respect of the profit derived from such eligible business. There is also no dispute to the fact that industrial park developed by assessee is in terms with industrial parks scheme, 2002 of the central govt. As per the scheme formulated by central govt. in the Ministry of Commerce and Industry, approval for industrial park can be obtained from the Ministry of Commerce and Industry, Govt. of India through DIPP either under automatic route or non-automatic route. As far as the present assessee is concerned, there is no dispute to the fact that it has sought approval for Capella Industrial Park under non-automatic route. The only rational conclusion would be, Capella industrial park developed by assessee having been approved by Ministry of Commerce and Industry, govt. of India under non-automatic route, the condition imposed under para 4 of CBDT notification stipulating that no single unit should have more than 50% of the allocable industrial area is not applicable to present assessee. Moreover, as held in case of Creative Infocity Ltd. Vs. Under Secretary [2012 (4) TMI 117 - GUJARAT HIGH COURT] Commerce Ministry being the competent authority for granting approval, they only have the power to verify whether conditions of the scheme have been violated and if it is found so, only they can withdraw the benefit. Therefore, for aforesaid reasons, assessee’s claim of deduction u/s 80IA(4)(iii) cannot be rejected. It is very much evident that not only AO enquired into the issue of claim of deduction u/s 80IA(4)(iii) in respect of Capella industrial park with reference to the condition imposed in para 4 of CBDT notification, but, assessee also submitted a detailed reply explaining why such condition will not apply to assessee. Thus, AO after conducting necessary enquiry and applying his mind to the issue having taken a decision allowing assessee’s claim of deduction u/s 80IA(4)(iii) in respect of Capella industrial park, the decision so taken, cannot be considered to be erroneous and prejudicial to the interests of revenue. In fact, though, ld. CIT accepts the fact that AO did make enquiry with regard to assessee’s claim of deduction u/s 80IA(4)(iii) and assessee also explained its stand before AO, but, he nevertheless contradicts himself by observing that AO did not conduct proper enquiry and verify whether assessee has complied to the condition imposed in para 4 of CBDT’s notification. In our view, such conclusion drawn by ld. CIT is not only contrary to the material on record, but, also does not stand the test of legal scrutiny. Once AO has conducted enquiry on a particular issue and has taken a decision after proper application of mind and if such view taken by AO is one of the possible view, then, even if it is not discussed elaborately in the assessment order, it cannot be said assessment order passed is erroneous and prejudicial to the interests of revenue. Moreover, as could be seen, the coordinate bench in case of L&T Infocity (2015 (1) TMI 1065 - ITAT HYDERABAD) after going through the conditions imposed under automatic and non-automatic route held that the restriction imposed under the automatic approval route stipulating that no single unit shall exceed 50% of the allocable industrial area is not applicable to approval granted under non-automatic route. Therefore, the view taken by AO while accepting assessee’s claim being in consonance with the view expressed by the coordinate bench, as aforesaid, certainly can be considered to be a possible view. That being the case, ld. CIT has no authority to invoke his power u/s 263 of the Act only because he does not agree with the view expressed by AO and wants to substitute his view. - Decided in favour of assessee.
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