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2016 (2) TMI 125 - ITAT HYDERABAD

2016 (2) TMI 125 - ITAT HYDERABAD - TMI - Revision u/s 263 - deduction under section 80IA allowed in an order under section 154 by AO - Held that:- As seen from the order under section 143 passed on 31.12.2009, the then A.O. has given detailed projects, road projects, BOT related projects, irrigation projects and also role of the assessee. Without examining the nature of project or calling for further information about the role of the assessee in executing various projects and further without gi .....

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07.04.2013 with a direction to re-examine and allow accordingly. Since the ITAT directions are not implemented in its correct perspective, we are of the opinion that the Ld. CIT order under section 263 is to be upheld. - Decided against assessee - ITA. No. 1203/Hyd/2015 - Dated:- 27-1-2016 - Shri D. Manmohan, Vice President And Shri B. Ramakotaiah, Accountant Member For the Petitioner : Mr. P. Muralimohan Rao For Revenue : Mr. P. Somasekhar Reddy ORDER Per B. Ramakotaiah, A. M. This appeal by as .....

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t be subjected to revisionary proceedings u/s.263 of the Act. 3. The Ld. Pr.CIT (Central) has erred in observing that there is no record of evidence to support that the AO has called for the details and examined various conditions imposed u/s. 80lA for allowing the deduction. 4. The Ld. Pr.CIT (Central) ought to have appreciated that the assessee has already furnished the evidence in support of the claim u/s. 80lA for the year under consideration before the AO during the course of assessment u/s .....

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m u/s. 80lA not based on facts but on technicalities inasmuch as the Revenue has preferred an appeal u/ s. 260A on the same issue in the case of M/s. GVPR Engineers. 7. The Ld. Pr.CIT (Central) erred in ignoring the findings of the AO at para no.2 of the order u/ s. 154 dated 07.04.2013 that the deduction u/ s. 80lA is allowed after verifying the claim. 8. The Ld. Pr.CIT (Central), ought to have appreciated that the A.O. has rightly allowed the claim u/s.80IA after due verification and in accord .....

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uspicion and surmises without bringing any contradictory evidence on record. 11. The Ld. Pr.CIT (Central), ought to have appreciated the ratio laid down by the Honorable Supreme Court in the case of Malabar Industrial Co. Ltd. v. Commissioner of Income Tax (2000)-243-ITR - 0083-(SC). 12. The assessee may add, alter, or modify or substitute any other points to the Grounds of appeal at any time before or at the time of hearing of the appeal. 2. Briefly stated, assessee is in the business of constr .....

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nly works contractor, there are no agreements with the Government, provisions of section 80IA are not satisfied. This order of A.O. is the subject matter of appeal before the Ld. CIT(A) who vide his order dated 10.01.2011 confirmed A.O s stand and disallowed the claim. On further appeal with the ITAT, the ITAT vide order in ITA.No.1970/Hyd/2011 remitted the matter to the file of the A.O. with the following directions : 36. Considering the above order of the Tribunal, as the facts and circumstanc .....

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ith design, development, operation, maintenance, financial involvement, defect correction of the contract during the warranty period, then such contract to be considered as a development of infrastructure facility executed by the assessee and thereby eligible for deduction u/s.80IA of the Act. (emphasis supplied) 2.1. In the meantime, there were search and seizure operations in the assessee s premises on 04.02.2011 consequent to which, proceedings under section 153A were initiated. In the order .....

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dated 28.12.2012 disposed off both the appeals. The income of the assessee was arrived at ₹ 19,31,97,724, consequent to giving effect to the order of the ITAT, Hyderabad. 2.2. Even though the order of the ITAT is specific, for examination of the issues afresh, the A.O. vide para-14 has rejected the claim of the assessee on the reason that the judgment relied on by the ITAT was appealed against and has not been accepted by the department. The order of A.O. in para 14.1 to 14.2 on the issue .....

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d allow deduction u/s. 80IA to the eligible projects. While pronouncing the above judgments apart from quoting various case Iaws, the Hon'ble bench of ITAT, Hyderabad has relied on its own judgment in the case of M/ s. GVPR Engineers. 14.2. The decision of the Hon'ble ITAT was not accepted by the department in the case of M/ s. GVPR Engineers and a further appeal to the Hon'ble High Court of Andhra Pradesh is already preferred u/s. 260A of the I.T. Act, 1961. Keeping in view the stan .....

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t from record, as in the instant case of the assessee for the A.Y. 2007-08, the Hon ble ITAT in its order for the A.Y. 2007-08 in its order No.ITA/1970/Hyd/2011 has directed for examination of the claim of the assessee and allowed the same. After verifying the claim, the deduction u/s.80IA is allowed. 2.4. The Ld. CIT noticed that the A.O. has not carried out the directions of the ITAT nor examined the issues and therefore, initiated proceedings under section 263 by issuing show cause notice as .....

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nd investigation before allowing the claim. Thus, the order was passed u/s.154 by the A.O. is without proper investigation and the same is erroneous in so far as it is prejudicial to the interest of revenue. 2.5. It was argued before the Ld. CIT that : 4 (a) The Assessing Officer has allowed the claim of the assessee in consequential order after verifying all the details of deduction claimed u/s.80IA of the Act for the year under consideration. (b) The A.O. has rectified his mistake in the conse .....

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that with regard to allowance of the claim of the assessee u/s.80IA of the Act is subjudice before the High Court, hence the same cannot be taken up in revisionary proceedings u/s. 263 of the I.T. Act. (d) The assessee's AR also submitted that when once the claim of the appellant is allowed by ITAT, the same cannot be disallowed again merely on the basis of surmises without bringing any new contradictory evidence on record. (e) Where two views are possible and the Assessing Officer has take .....

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ith the contentions and has set aside the order under section 154 dated 07.04.2013, with a direction to the A.O. to examine the claim in accordance with the directions of the ITAT and allow such claim as admissible in terms of the order of ITAT. The assessee is aggrieved and raised the above grounds. 3. Ld. Counsel reiterating the submissions made before the Ld. CIT submitted that the A.O. has examined and allowed the same in an order under section 154. Therefore, Ld. CIT was precluded in initia .....

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r of consideration and only in the order dated 07.04.2013, A.O. allowed the claim without any examination. 5. We have considered the rival contentions and examined the orders placed on record along with sequence of events as stated by the Ld. Counsel in the written format. As far as the issue of section 80IA is concerned, as briefly stated, assessee has claimed the same by a revised return, when it has made no claim originally in the original return. A.O. did examine the issue elaborately and ca .....

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the ITAT in the Revenue appeal, the directions given in assessee s appeal were not implemented by the A.O. There seems to be no examination in the course of proceedings under section 153A. In fact, A.O. should have given effect to the ITAT order in the proceedings under section 153A itself, as the directions of the ITAT were available at the time of passing the order. As briefly stated above, A.O. rejected the claim, not on examination of facts but on legal principles that the judgment of GVPR .....

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