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2018 (8) TMI 268 - AT - Income TaxRevision u/s 263 - non sufficient compliance for the provision of the Income Tax Act, 1961, - CIT-A directed to AO to examine the limited issue, i.e., relating to allowance of deduction u/s. 80-IB of the Act after giving sufficient opportunity of being heard - Held that:- The submission of return within time as specified under sub section (4) of section 139 has to be taken as sufficient compliance for the provision of the Income Tax Act, 1961, as it was expounded that the sub section (1) and sub section (4) of section 139 have to be read together and, hence, it is the inevitable conclusion that a return made within the time specified in sub section (4) has to be considered as having been made within the time prescribed in sub section (1) of the Act. On the touch stone of the above said exposition, we find that there is no infirmity in the Assessing Officer’s order on granting the assessee the deduction u/s. 80IB of the Income Tax Act, 1961. It is not the case that the returns were filed beyond the time limit for sub section 139(4). Even otherwise, we find that the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] has expounded that when there are two views possible and the Assessing Officer has adopted one of the views with which the Commissioner of Income Tax does not agree, the same will not give rise to granting the Commissioner of Income Tax the power to exercise jurisdiction u/s. 263 of the Income Tax Act, 1961. Here we find that in view of the above said decision, if the Assessing Officer has formed a view that the assessee deserves deduction u/s. 80IB, having complied with the overall provisions of section 139, it cannot be said that the Commissioner of Income Tax can legally assume jurisdiction u/s. 263 if he does not agree with the view of the Assessing Officer. Thus we quash the direction of the Commissioner of Income Tax to examine the allowability of deduction u/s. 80IB for both the years. Assessee has claimed double deduction on account of partners salary - Held that:- Commissioner of Income Tax has overlooked the submission of the assessee that it is entitled to deduction u/s.80IB. In this view of the matter, the entire additional income was not liable for taxation. Still the assessee has offered ₹ 65 lacs for taxation which the assessing officer has accepted, which cannot be said to be erroneous so as to be prejudicial to the interest of revenue. Furthermore we note that in this regard except for the statement on survey there was no corroborative material supporting the addition of ₹ 1.55 crores. As held in the case of S kader Khan [2013 (6) TMI 305 - SUPREME COURT] dehorse any corroborative material addition only on account of a statement obtained under survey is not sustainable. In the background of aforesaid discussion and precedent we find that the assessing officers acceptance of ₹ 65 lakh offered for taxation cannot be said to be erroneous so to be prejudicial to the interest of revenue - decided in favour of assessee
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