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2018 (3) TMI 54 - HC - Income TaxRevision u/s 263 - assessee had sold bare shell building, which was not a permissible activity and the benefit of Section 80IAB could not be granted towards such sale/transfer - Held that:- This Court has considered the submissions of the parties. The question as to whether sale of bare shell building is per se a deductable activity falling within Section 80IAB has, in the opinion of the Court, not been adequately considered or addressed. The Central Government’s clarifications were issued to the assessee, at its request. The AO must have analysed the provisions of the Act, especially, the notifications governing the setting-up of the SEZs and the permissible activities in such zones with their investors (Section 80IAB) and the circumstances of the case, i.e. the agreement entered into with the co-developer, the conditions of lease etc., had to be analysed in detail. Clearly, the AO did not conduct that detailed enquiry. Furthermore, in the absence of a detailed analysis of the factual narration with respect to the transactions and the documents, having regard to the provisions of the SEZ Act and the purpose for which SEZs are set-up, to ensure that such areas develop in a sustained and consistent manner, with assured infrastructure support on a continuous basis by developers, the CIT(A)’s opinion that the assessment order was erroneous in law and prejudicial to the interest of the Revenue was justified. As a result, it is held that the ITAT erred in interfering with the order of the CIT(A). Consequently, the impugned order needs to be set aside. The order of the CIT(A) under Section 263 is, therefore, upheld. - Decided against assessee ITAT held that sale of assets and buildings to the co-developer could have been treated as capital gain and not business income - Held that:- ITAT’s decision merely reproduced the CIT(A)’s judgment and has not analysed independently, in either of the AYs, the applicability of Section 80IAB towards the deductions claimed in the light of the transactions reported and the documents disclosed. Furthermore, those facts have also to be analysed in the light of the provisions of SEZ Act, 2005, which the ITAT has not independently done. For these reasons, the impugned orders of the ITAT are set-aside and are remitted for fresh consideration
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