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2015 (11) TMI 300 - AT - Income TaxRevision u/s 263 - Held that:- Section 263 has been invoked on 3 grounds namely the claim of deduction on account of amortized value of lease hold land which according to CIT was not allowable, the claim of depreciation at 15% on office equipment and the deduction u/s. 35D of the Act. On the aforesaid 3 issues, it is seen that during the course of assessment proceedings, A.O had raised query on all the aforesaid 3 issues and the same were also replied by the Assessee vide letters dated 21.03.2013, 08.01.2013, 08.11.2012, the copies of which are placed in the paper book at page 37 to 79 of the paper book. Thus it is seen that on the aforesaid 3 grounds, the A.O had raised the query, the same were replied by the Assessee and it appears that the reply of the Assessee was found acceptable to the A.O because no addition on these aforesaid 3 issues were made by the A.O in the assessment order. We find that the Hon’ble Apex Court in the case of CIT vs. Max India Ltd. (2007 (11) TMI 12 - Supreme Court of India) has held that where two views are possible and ITO has taken one view with which CIT does not agree, order of the A.O cannot be considered as erroneous order prejudicial to the interest of Revenue unless the view taken by the A.O is unsustainable in law. On the merits on the issue of amortization of cost of lease hold land, we find that the claim of Assessee of amortized value of lease hold land development was not u/s. 35D whereas ld. CIT in the order has held that the claim of Assessee was u/s. 35D and therefore in such a situation, A.O’s order on that issue cannot be considered to be erroneous more so because there was no such claim u/s. 35D by Assessee. As far as the claim of depreciation on office equipments @ 15% is concerned, it is Assessee’s submission that the claim of depreciation at 15% on the office equipment which comprises of similar items as are in the present year, has been allowed by the A.O in earlier years in the assessment order passed u/s. 143(3) and those orders have attained finality. As far as the claim of deduction u/s. 35D is concerned it is not the case of the Revenue that the expenses have been incurred in the year under consideration but on the contrary it is assessee’s submission that the same have been incurred in earlier years and the deduction u/s. 35D has also been allowed in earlier years. It is also not a case of the Revenue that on the issue of deduction under 35D, deduction for earlier years has been withdrawn by Revenue. In such a situation, without disturbing the earlier years, it cannot be said that the claim of deduction u/s. 35D was not allowable to the Assessee. The aforesaid submissions of ld. A.R has also not been controverted by Revenue. Further, before us Revenue has not brought any material on record to demonstrate that the view taken by the A.O was impermissible view and was contrary to law or was upon erroneous application of legal principles initiating the exercising of revisionary powers u/s. 263. Thus CIT was not justified in resorting to revisionary powers u/s. 263 - Decided in favour of assessee.
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