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2022 (8) TMI 1180 - AT - Income TaxRevision u/s 263 - deduction claimed u/s 80IA - as per CIT owing to amalgamation the deduction claimed by the assessee under section 80IA should not be allowed in terms of section 80IA(12A) of the Act as the company is formed by the consequence of amalgamation - HELD THAT:- The appointed date is to be reckoned for the purpose of taking into consideration the transfer of assets and liabilities for the purpose of claim of deduction under section 80IA - From the Certificate of Commissioning of the two eligible Power Undertakings situated at Rajasthan placed on record, admittedly, it is a fact that the two Units were commissioned on 31.03.2012 and 05.01.2013 respectively. Since their commissioning date falls after the appointed date of 01.10.2011, there cannot be any occasion of transfer of these two eligible Power Undertakings under the Scheme of Amalgamation. Further, we also note that these two eligible Power Undertakings situated at Rajasthan do not form part of the schedule of assets referred in scheduled ‘B’ to the Approved Scheme of the Amalgamation. It is also a fact noted from Form 10CCB placed on record that the claim of deduction u/s 80IA has been made for the first time in A.Y. 2015-16 in respect of these two eligible Power Undertakings situated at Rajasthan. We are inclined to find favour with the submissions made assessee to take into consideration the appointed date of 01.10.2011 for the purpose of transfer of assets and liabilities under the Approved Scheme of Amalgamation and, therefore, we are of the considered view that the said Windmill Undertakings situated at Rajasthan were not transferred from the erstwhile IPCL into the assessee under the Scheme of Amalgamation. Accordingly we hold that the provisions of section 80IA(12A) are not attracted in the present set of facts and circumstances. Having so held, the very foundation on which the present proceedings were initiated under section 263 by the ld. Pr. CIT falls apart. We find that in the present facts and circumstances, the legal maxim ‘sublato fundamento cadit opus’ is applicable, meaning thereby – ‘a foundation being removed, the superstructure falls’. Once the basis of a proceeding is gone, the action taken thereon would fall to the ground. Thus, in the absence of such foundation, exercise of a suomotu power is impermissible. It should not be presumed that initiation of power under suomotu revision is merely an administrative act. It is an act of a quasi-judicial authority and based on formation of an opinion with regard to existence of adequate material to satisfy that the decision taken by the Assessing Officer is erroneous as well as prejudicial to the interests of the revenue. We find that it is an issue, purely on facts which is verifiable from the records of the assessee relating to the approved scheme of amalgamation which contained specifics about the effective date of scheme becoming applicable and the assets and liabilities which existed under the said approved scheme for transfer from the amalgamating company to the amalgamated company. Furthermore, examination and verification of certificate of commissioning of the two windmills undertakings also revealed the correct state of their coming into operations for the purpose of getting eligibility for claim u/s 80IA of the Act. Ld. PCIT and the ld. CIT, DR could not bring any material on record to controvert this verifiable factual position - thus no action u/s 263 of the Act is justifiable - Decided in favour of assessee.
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