TMI Blog2016 (3) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ion without making a enquiry into matters, where such enquiry prime facie warranted. In the present case, the Assessing Officer has to consider the provisions applicable under Rule 8D effective from assessment year 2008-09. But the Assessing Officer made disallowance by following Co-ordinate Bench decision for earlier assessment year. It is apparent from facts and circumstances the order of the Assessing Officer is erroneous and prejudicial to the interest of Revenue and accordingly we uphold the order of CIT - Decided against assessee - I.T.A.Nos.1948 & 1949/Mds/2015 - - - Dated:- 28-1-2016 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER For The Appellant : Shri. V. Jagadisan, C.A. For The Respondent : Shri. V. Vivekanandan, IRS, CIT ORDER PER G. PAVAN KUMAR, JUDICIAL MEMBER: The appeals filed by the assessee are against different orders of Commissioner of Income Tax -1, Madurai dated 30.03.2015 for the assessment years 2010-2011 and 2011-2012 passed u/s.263 of the Income Tax Act, 1961. 2. The assessee has raised the grounds challenging the order of u/sec.263 of the Act and also additional grounds. The assessment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly for the assessment year 2011-12 the assessee filed return of income on 28.09.2011 with total income of :54,10,48,490/-. The Assessing Officer issued notice and in compliance to the notices the ld. Authorised Representative of the assessee appeared from time to time and made submissions and filed details. The Assessing Officer upon verification found that deprecation claimed is in excess in case of Air and Water pollution control equipments and made an addition of :52,41,671/- and similarly on energy saving disallowed excess deprecation of :5,66,054/- as in earlier year. The ld.Assessing Officer made disallowance under 14A by applying the Co-ordinate Bench decision disallowed 2% of dividend income as expenditure :.6,03,742/- incurred on exempted income and on the same lines the ld. Assessing Officer disallowed capital subsidiary received from State Government and added to the returned income and completed assessment u/s.143(3) of the Act dated 27.02.2014 assessing total income :60,94,29,430/- and raised demand. Aggrieved by the order of the Assessing Officer for both assessment years, the assessee filed an appeal before the Commissioner of Income Tax (Appeals). When the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany challenged the addition by way of appeal before the Commissioner of Income Tax (Appeals) Madurai. On the issue of deduction u/Sec.80IA of the Act the assessee filed the Audit report and certificate of Chartered Accountant in form 10CCB in assessment proceedings and further submitted that return of income was filed electronically, and full particulars are furnished alongwith working of claim of deduction u/s.80IA of the Act. The assessee company challenged validity of issue of Revision notices that Commissioner of Income Tax has no jurisdiction where the order of the Assessing Officer is not erroneous but also not prejudicial to the interest of Revenue and Assessing Officer has applied his mind and accepted details on this issue and prayed for dropping of proceedings u/s.263 Act. 5. Upon submission of information, the Commissioner of Income Tax without verifying the correctness distinguished the judgments submitted by the assessee and relied on the findings of Malabar Industrial Cement Co. Ltd vs. CIT 243 ITR 83 (SC) and viewed that assessment was erroneous and prejudicial to the interest of Revenue and issued directions to the Assessing Officer to enquire into the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the lower authorities and objected that the Commissioner of Income Tax need not give reasons for passing the order and relied on the decision of CIT vs. Infosys Technologies 341 ITR 293 (Kar) and 313 ITD 182 (AT) Special Bench, Chennai. 8. We heard the rival submissions of both the parties, perused the material on record and judicial decisions cited. The ld. Authorised Representative pointed out the jurisdiction aspect and Commissioner of Income Tax has not proved that the assessment order is erroneous and prejudicial to the interest of the Revenue. The Commissioner of Income Tax has power to revise and pass orders based on assessment record but not on issues where the assessee is in appeal on the disallowance against assessment order before Commissioner of Income Tax (Appeals) and the same issues cannot be subject to revision. The main reason for invoking revision u/s.263 of the Act by the CIT for the assessment year 2010-11 and 2011-12 that the Assessing Officer failed to apply provisions of Sec.14A of Rule 8D for the above assessment years. Though Rule 8D came into effect from 24.03.2008 and non applicability of provisions is erroneous and omitted by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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