TMI Blog2016 (6) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Sushil Kumar ORDER Rano Jain (Accountant Member) 1. The appeal filed by the assessee is directed against the order of the learned Commissioner of Income-tax (Central), Gurgaon, dated March 11, 2015, for the assessment years 2010-11, passed under section 263 of the Income-tax Act, 1961 (in short the Act ). 2. The facts of the case are that the assessment for the assessment year 2010-11 was completed under section 143(3) of the Income-tax Act, 1961, as on March 31, 2013. Later on, on examination of record, the Commissioner of Income-tax formed the opinion that the Assessing Officer did not appreciate evidences on record, failed to examine and arrive at the correct logical and the legal conclusion and in this process allowed a deduction under section 80-IB of the Act, which was not under the facts allowable to the assessee. In this view, a notice under section 263 of the Act was issued to the assessee dated December 29, 2013. The main contention of the Commissioner of Income-tax was that the claim of deduction under section80-IB(11A) of the Act was partly allowed by the Assessing Officer by holding that besides the business of rice milling, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurgaon, has erred in assuming the jurisdiction under section 263 and, thereby holding that the assessment order as passed by the Assessing Officer for the assessment year 2010-11 is erroneous and prejudicial to the interests of the Revenue. 2. That the learned Commissioner of Income-tax (Central), Gurgaon, has failed to appreciate the fact that the assessment had been framed by the Assessing Officer after due application of mind and after considering all the facts and, thus, there was no error in the order passed under section 143(3) of the Act. 3. That the learned Commissioner of Income-tax (Central), Gurgaon, has also grossly erred in holding that the orders for the earlier two years, are erroneous and setting aside the assessment for the assessment year 2010-11 to the file of the Assessing Officer for making the assessment de novo as per the direction contained in the order as passed under section 263 of the Act. 4. That the learned Commissioner of Income-tax (Central), Gurgaon, has ignored the fact that for the earlier years, the matter has been adjudicated and decided by the honourable Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh, for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as invited to pages 1 and 2 of the paper book filed by the assessee, whereby deductions under section 80-IB(11A) and section 80-IA of the Act were claimed. At paper book pages 3 and 4, a revised return filed as on March 28, 2012, was annexed. The returns were accompanied by the audited balance-sheets which are placed at the paper book pages 5 to 30 along with the report in Form 10CCB at pages 31 to 37. On the first questionnaire issued by the Assessing Officer placed at the paper book page 38, the queries regarding deductions are at question No. 12. In reply to the said questionnaire, the assessee filed a letter dated February 26, 2013, which is placed at page 43 onwards and the relevant replies are at item No. 72. This letter was annexed with various annexures. Annexures 9, 10, 11 and 13 were with respect to deduction under section 80-IA with regard to sanction of the mega project, certificate regarding the machinery, documents showing storage and documents showing transportation respectively. In another reply at page 47 of the paper book, the facts relating to deduction under section 80-IB(11A) of the Act were explained in detail to the Assessing Officer. It was submitted that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption of jurisdiction under section 263 of the Act by the Commissioner of Income-tax is as per law. He placed reliance on the order of the honourable Supreme Court in the case of CIT v. Ansal Housing and Construction Ltd. [2014] 51 taxmann.com 376 (SC). Further, reliance was placed on the judgment of the Punjab and Haryana High Court in the case of CIT v. Rajesh Mahajan [2012] 346 ITR 514 (P H) ; [2011] 16 taxmann.com 85, copy of the order of the Income-tax Appellate Tribunal, Chandigarh Bench, in the case of Vodafone South Ltd. v. CIT (TDS) [2015] 61 taxmann.com 108 (Chandigarh-Trib) and Bassera Realtors P. Ltd. v. CIT [2015] 55 taxmann.com 327 (Chandigarh-Trib) were also filed before us. 9. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. The undisputed fact which is also coming out of the order of the Commissioner of Income-tax passed under section 263 of the Act is that the issues which have been raised by the Commissioner of Income-tax in proceedings under section 263 of the Act were all present in the assessment years 2008-09 and 2009-10 also in the assessee& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier years, the Commissioner of Income-tax, while assuming the jurisdiction under section 263 had the benefit of the same. Therefore, the order was binding on the Commissioner of Income-tax. 11. Since the issues have been settled by the Income-tax Appellate Tribunal and the same view has been taken by the Assessing Officer, now in the garb of proceedings under section 263 of the Act, the Commissioner of Income-tax cannot tinker with her act stating that the same does not commensurate with the findings given by the Assessing Officer and the Commissioner of Income-tax (Appeals) in the earlier years. In this order of the Commissioner of Income-tax, we do not find even an iota of evidence and observe that the Commissioner of Income-tax has not been able to bring on record any of the inferences drawn by the Assessing Officer, which is not as per the view of the Income-tax Appellate Tribunal given in the earlier assessment years. In view of this, we do not find any error in the order of the Assessing Officer, not to talk about the prejudice to the interests of the Revenue. Therefore, in our view, the jurisdiction assumed by the Commissioner of Income-tax under section 263 of the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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