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2024 (1) TMI 370 - DELHI HIGH COURTRevision u/s 263 - PCIT took a view that the assessee was not eligible to any deduction u/s 80IA(4)(ii) - HELD THAT:- In the case of Commissioner of Income Tax (Central) Ludhiana vs Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] the Supreme Court referred to its earlier judgment in the case of Malabar Industrial Company Limited [2000 (2) TMI 10 - SUPREME COURT] and reiterated that every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest of revenue within the meaning of Section 263 of the Act; and that where the Income Tax Officer adopts one of the courses permissible in law and the same results in loss of revenue or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue, unless the view taken by the Income Tax Officer is not sustainable in law. As the respondent/assessee was being allowed deduction under Section 80IA of the Act since AY 2007-08, but revenue took a U-turn by denying the benefit in AY 2010-11, that too invoking jurisdiction under Section 263 of the Act, which cannot be justified. No material was brought on record by the appellant/revenue to show that merely by migration from IP-VPN to NLD-ILD license, a new and different “undertaking” of the respondent/assessee within the meaning of Section 80IA(4)(ii) of the Act came into existence. As held by this court in the case of PCIT vs Verizone Communications India Pvt. Ltd [2023 (12) TMI 347 - DELHI HIGH COURT] mere addition of services or expansion of the same undertaking would not take it out of the realm of Section 80IA(4)(ii) of the Act. Although PCIT did carry out an inquiry, but did not arrive at any finding challenging the sustainability of the view of the Assessing Officer. According to the settled legal position as quoted above through various judicial precedents, merely because PCIT holds a view different from that of the Assessing Officer, the jurisdiction under Section 263 of the Act cannot be invoked to substitute the view of the latter with that of the former. PCIT wrongly invoked jurisdiction under Section 263 of the Act and fell in error by taking a U-turn in fourth assessment year thereby denying benefit of Section 80IA of the Act to the respondent/assessee. Decided against revenue.
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