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2021 (10) TMI 866 - AT - Income TaxReopening of assessment u/s 147 - assessee has claimed deduction under section 80IB without allowing interest on capital and remuneration to the partners - disallowing the partner’s remuneration and interest on capital which is in contravention to the covenants laid down in the partnership deed - HELD THAT:- The partners decided not to give any remuneration. On the interest to partner’s capital, the assessee stated that it is privilege of the partners to change or amend the clause as agreed under the deed of partnership.Clause- 21 of the partnership deed provides such amendment. The assessee stated that the partnership was revised on 01.04.2008 i.e. much prior to the selection of return for scrutiny - AO disregarded the contention of the assessee and disallowed the part remuneration under section 80IB of the Act to the extent of ₹ 2,73,90,313/- thereby disallowed ₹ 2,04,07,333/-. CIT(A) allowed the relief to the assessee by following decision of Tribunal in the case of Alidhara Taxspin Engineers [2017 (5) TMI 1684 - GUJARAT HIGH COURT] wherein it was held that mere incorporation of interest on the partners’ capital and remuneration does not signify that the same are mandatory in nature. The similar view taken by Hon'ble jurisdictional High Court in the case of M/s Sanidhya [2020 (2) TMI 588 - GUJARAT HIGH COURT] by following its earlier order in Alidhara Taxspin Engineers [2017 (5) TMI 1684 - GUJARAT HIGH COURT]. Therefore, we do not find any reason to interfere with the order of Ld. CIT(A), which we confirm. Assessing Officer re-opened the case of assessee for AY 2010-11 under section 147 of the Act on 05.03.2015 by recording reasons that assessee’s claim deduction under section 80IB(10) without allowing capital and remuneration to its partners. However, same Assessing Officer allowed similar relief in assessment order passed under section 143(3) of the Act on 13.03.2015 in subsequent assessment year i.e. AY 2012-13. Therefore, the same officer has took two contrary view in respect of the same assessee on the similar issue, which is not permissible under the provisions of the income tax Act. The revenue authorities are requires to adhere the principles of consistency while considering the similar issues, when there is no variations in the facts in earlier or subsequent year. Thus, the assessee also succeeded on the secondary submissions of his ld counsel - Decided against revenue.
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