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2021 (9) TMI 101 - AT - Income TaxRevision u/s 263 - as per CIT assessment framed u/s 143(3) as erroneous insofar prejudicial to the interest of revenue on account of the deduction granted by the AO under section 80IA(4) - assessee is acting as a works contractor and not the developer and as there was no agreement between the assessee and the Government of Gujarat which is one of the prerequisite for claiming the deduction under section 80IA(4) - HELD THAT:- There remains no ambiguity that there was the agreement between the assessee and the Government of Gujarat, Road & Building department. It is also pertinent to note that this fact was brought to the notice to the learned principal CIT during the proceedings by the assessee. Principal CIT in his order has not assailed the contention raised by the assessee before him. Thus, in the given facts and circumstances, there is no violation by the assessee of the provisions specified under section 80IA(4) of the Act. There was no charge of the learned Principal CIT suggesting that the activities performed by the assessee were in the nature of works contract except the allegation that there was no agreement between the assessee and the Government of Gujarat, Road & Building Department. As such, in the absence of agreement between the assessee and the Government of Gujarat, Road & Building Department, the Principal CIT assumed that the assessee was acting as the works contractor. However, the finding of the learned Principal CIT is not correct in the light of the above discussion. Whether the assessee is acting as a works contractor or a developer as provided under explanation to section 80IA(4) of the Act is the debatable issue - once the AO has taken a view that the assessee is eligible for deduction 80IA(4) of the Act, the view taken by the AO is one of the possible view. Thus on this reason as well the order of the AO cannot be termed as erroneous insofar prejudicial to the interest of revenue - order passed by the learned Principal CIT is not sustainable and liable to be quashed - Decided in favour of assessee.
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