TMI Blog2015 (6) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... already on record, thus it would not give revisional jurisdiction to him under section 263 of the Act to set aside the assessment order. - Decided in favour of assessee. - ITA No. 346/CHD/2013 - - - Dated:- 17-10-2014 - SHRI BHAVNESH SAINI AND SHRI T.R.SOOD, JJ. For The Appellant : Shri Ashwani Kumar For The Respondent : Dr.Amarveer Singh, DR ORDER PER BHAVNESH SAINI, JM This appeal by assessee is directed against the order of Ld. Commissioner of Income Tax, Ludhiana dated 18.03.2013 for assessment year 2008-09, challenging the impugned order under section 263 of the Income Tax Act. 2. We have heard ld. Representatives of both the parties and perused the material on record. 3. Briefly, the facts of the case are that in this case, the assessment was completed vide order dated 21.12.2010 ( ld. CIT mentioned 27.12.2010) at income of ₹ 4,53,55,887/-. The Ld. Commissioner of Income Tax examined the record and found the assessment order to be erroneous in so far as the same was prejudicial to the interest of revenue. The ld. Commissioner of Income Tax issued a show cause notice dated 17.09.2012 under section 263 of the Income Tax Act seeking expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATO SPA of Italy for installation of the press, copy of the insurance pol icy from 28.03.2008 and copy of the letter of credit opened by the assessee in favour of supplier i.e. M/s ATO SPA of Italy bearing the clause of warranty/guarantee for a period of 12 months from the date of installation. The assessee, therefore, pleaded before ld. Commissioner of Income Tax that press was actually put to use on 29.03.2008 and the depreciation on the same was rightly claimed. The ld. Commissioner of Income Tax, however did not accept any of the contention of the assessee. The ld. Commissioner of Income Tax also noted that machine is very costly and since warranty/guarantee is applicable for a period of 12 months from the date of installation, therefore, the assessee as well as supplier must have put it in writing that machine was installed and put to use on a particular day, but assessee has not provided any such document. Ld. Commissioner of Income Tax also noted that since machine has been claimed to be put to use for three days and in the absence of details, the Assessing Officer has not examined the claim of assessee, therefore the impugned assessment order dated 21.12.2010 was set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Book-97 is purchase bill dated 13.04.2007 and other items of plant machinery. He has, therefore submitted that the forging press was available to the assessee long back. PB-25 is electricity bill sanctioning enhanced load of electricity w.e.f . 28.03.2008 for use of the forging press. PB-57 is insurance of the forging press starting from 28.03.2008 and PB-7 is installation certificate dated 29.03.2008 by supplier M/s ATO SPA of Italy certifying that forging press has been successfully installed at the plant of the assessee. Ld. counsel for the assessee, therefore, submitted that the Assessing Officer examined the issue in detail after raising queries. Therefore, the view of the Assessing Officer should not have been substituted by ld. Commissioner of Income Tax. He has submitted that once Assessing Officer examined the issue and granted depreciation to the assessee as per law, ld. Commissioner of Income Tax cannot revise order merely because he disagrees with the conclusion arrived at by the Assessing Officer. He has relied upon decision of the Bombay High Court in the case of CIT Vs Gabriel India Ltd. 203 ITR 108. He has also relied upon decision of the Hon'ble Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has not been examined by the ld. Commissioner of Income Tax in the impugned order and no findings have been given on the same. This was a major reason for setting aside the assessment under section 263 of the Act. The assessee furnished copy of the show cause notice issued by the Assessing Officer at the assessment stage dated 30.06.2010 in which the Assessing Officer cal led for every details from the assessee including the acquisition of fixed assets and additions thereto. The assessee apart from submitting complete reply, also submitted the additions to the f ixed assets and the depreciation etc. claimed thereon as per format supplied by the Assessing Officer. Therefore, such details would have been sufficient to prove that the new building so constructed by the assessee was completed in March, 2010 and put to use on which depreciation has been claimed in assessment year 2010-11. This reply would have bearing on the issue because the assessee claimed that depreciation was claimed on the forging press which was installed in the old business premises of the assessee. It is, therefore, a clear case where the ld. Commissioner of Income Tax, in the proceedings under section 263 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was put to use on 29.03.2008. These documents were supported by purchase bill dated 11.07.2006 and 13.04.2007. Therefore, the forging press was available to the assessee and was ready for use of the assessee prior to the actual put to use on 29.03.2008. The ld. Commissioner of Income Tax has given another reason for setting aside the impugned assessment order because one of the important condition of purchase agreement of the press was the clause of warrantee/guarantee for a period of 12 months from the date of installation. The machine was found to be costly and valuable, therefore according told. Commissioner of Income Tax, the assessee as well as supplier must have put it in writing that machine was installed and put to use on a particular day and starting of the warrantee/guarantee. Ld. Commissioner of Income Tax noted that since no such documents have been produced before him, therefore, assessment order was erroneous in so far as prejudicial to the interest of revenue. Ld. Commissioner of Income Tax, however forgot to note that in para 2.1 of the impugned order, ld. Commissioner of Income Tax noted that the certificate dated 29.03.2008 from M/s ATO SPA of Italy has been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding. The Assessing Officer was justified in granting the special deduction under section 80IB. The order of revision disallowing the special deduction was not valid. 11. The Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. V CIT 243 ITR 83 held as under : Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted 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 interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law. 12. Considering the facts of the case in the light of the above decisions and discussion above, it is clear that the Assessing Officer has granted depreciation to assessee on being satisfied with the explanation of the assessee, supported by documents that forging press was installed and put to use on 29.03.2008 after conducting proper enquiry into matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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