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2023 (4) TMI 1258 - AT - Income TaxReopening of assessment u/s 147 - assessee does not fulfil the conditions for claiming deduction u/s 80IA - HELD THAT:- We find that the assessing officer reopened the case of assessee on the basis of assessment order in AY 2010-11 wherein AO took his view that the assessee does not fulfil the conditions for claiming deduction u/s 80IA. We find that while adjudication the similar grounds of appeal in appeal for AY 2006-07 [2022 (2) TMI 1401 - ITAT SURAT] which was also reopened on identical grounds of appeal, thus we hold that the action of AO for re-opening is not valid as the original scrutiny assessment was the subject matter of appeal before Ld. CIT(A) and again appeal before Tribunal, moreover, the action of Assessing Officer is based on “change of opinion” on similar set of fact. Moreover, it was overreaching to the decisions of the superior authorities on the similar set of fact on similar issues. Therefore, the reopening is held as invalid and subsequent action initiated thereof are void ab initio. Disallowance /eligibly of deduction u/s 80IA in respect of land fill project I, considering the same as new undertaking - HELD THAT:- As decided in [2021 (12) TMI 1292 - ITAT SURAT] the assessee has fulfilled all the conditions as laid down in section 80IA(4) of the Act and was allowed deduction in the earlier assessment years in respect of land fill project No.I in AY 2002-03 that is in the initial year, therefore, deduction under section 80-IA in respect of the infrastructure facility should have been allowed to the assessee. So far as the objection of the Ld. Sr DR for the revenue is concerned that the assessee has made agreement with GIDC only after the claim of the assessee was disallowed by A.O and at the time of establishment of Land fill Project –II, no new establishment came in to existence. The nature of work being done by both the project is identical, therefore, the claim of the assessee based on the backdate agreement cannot be considered. We find that the submissions of revenue is based on the finding of Ld. CIT(A). The assessee has entered into a separate agreement dated 16th October 2012 with GIDC with effect from 12th March 2007 and commenced its Land Fill Project-II in FY 2006-2007 and claimed deduction u/s 80-IA of the Act from AY 2008-09 since the said unit is a separate infrastructure facility. Thus, Land fill II is a distinct and separate undertaking from Landfill I. Assessee appeal allowed. Disallowance of provision made for pit covering expenses as well as inclusion thereof in computing Section 115JB book profits - HELD THAT:- As following the principle of consistency, we direct the AO to follow the order of Tribunal in [2017 (2) TMI 1493 - ITAT AHMEDABAD] and allow / delete the disallowance of provisions of pit covering expenses. Levy of interest u/s 115P - CIT(A) confirmed the action of Assessing Officer for want of evidence - HELD THAT:- As before us, it was vehemently argued that due tax was paid within prescribed period under Section 115-O of the Act. Therefore, we deem it appropriate to restore this issue to the file of Assessing Officer to verify the fact if the assessee has paid dividend distribution tax in time, the assessee be allowed relief on this issue in accordance with law.
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