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2018 (2) TMI 595 - AT - Income TaxRevision u/s 263 - additional depreciation on windmill allowability - Held that:- this issue is covered in favour of the assessee, by Tribunal’s decision in the case of ACIT vs. Power Build Ltd and vice versa (2012 (8) TMI 1122 - ITAT AHMEDABAD). We are of the considered view that the course adopted by the Assessing Officer, which is unambiguously supported by a binding judicial precedent, cannot be said to be erroneous and prejudicial to the interest of the revenue. As noted in the case of CIT vs. Malabar Industrial Co Ltd [2000 (2) TMI 10 - SUPREME Court] where two views are possible and the ITO has taken one view with which CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is not sustainable in law”. A view taken in consonance with the Tribunal decision cannot be said to unsustainable in law. Clearly, therefore, the learned Commissioner was in error in invoking his revision powers under section 263 in respect of additional depreciation on windmill. As regards the Commissioner’s invoking the revision powers under section 263 in respect of, what is termed as by the CIT, “excess claim of ₹ 68,02,000”, we have noted that the stand of the assessee is that these expenses are duly deductable under section 37(1), that the assessee had furnished complete information, as requisitioned by the Assessing Officer, at the assessment stage – copies of which are placed at pages 44 to 59 of the paper-book filed before us, and yet the Commissioner has remitted the matter to the file of the Assessing Officer for necessary verification. As a matter of fact, the learned CIT has justified the action on the ground that “since the order is being set aside on other issues, this issue is also set aside and the Assessing Officer is directed to examine the nature of these payments as per law”. As the things stand now, however, the order under section 263 on the other issue (i.e. additional depreciation) stands vacated. In any case, it is not even the case of the CIT that there is any error in the claim or this aspect of the matter was not examined in the original proceedings. Action of the CIT in invoking powers under section 263 cannot be justified - Decided in favour of assessee
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