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2016 (6) TMI 785 - ITAT CHANDIGARH

2016 (6) TMI 785 - ITAT CHANDIGARH - [2016] 48 ITR (Trib) 409 - Revision u/s 263 - deduction under section 80-IA allowed - Held that:- Assessing Officer was quite open to the issue of deduction under section 80-IA of the Act with regard to various eligibility conditions provided in the Act, which were queried by her in a number of notices issued to the assessee, which were duly replied by the assessee. After considering all these replies, the Assessing Officer had allowed only a portion of the d .....

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-2016 - Bhavnesh Saini (Judicial Member) And Rano Jain (Accountant Member) For the Petitioner : Sudhir Sehgal For the 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 fo .....

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der 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 was also engaged in the integrated business of handling, storage and transportation of food grains. He also mentioned that in the previous year, such claim was rejected by the Assessing Off .....

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the deduction under section 80-IB(11A) of the Act in the assessment year 2010-11 was not in conformity with the provisions of law, self-contradictory and highly erroneous. For this, the Commissioner of Income-tax noted down his various objections, which are reproduced by him in his order at pages 1 to 3. He was of the view that the Assessing Officer did not consider the factual position and did not make inquiry or investigation on the said issue. 3. The assessee in reply to the notice under sect .....

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oint to point rebuttal is reproduced by the Commissioner of Income-tax in his order in paragraph 3.2 at pages 2 to 7. After considering the submission of the assessee the Commissioner of Income-tax set aside the order of the Assessing Officer for the assessment year 2010-11 with a direction to follow the consistent view point as has been taken in the assessment years 2007-08 and 2008-09, even though the same has been set aside by the Income-tax Appellate Tribunal, since the matter is before the .....

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l), 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 A .....

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ommissioner of Income-tax (Central), Gurgaon and, as such, the assessment as set aside is against the facts and circumstances of the case. 5. That the findings of the Commissioner of Income-tax (Central), Gurgaon, as contained in the order under section 263 are totally incorrect, as being adjudicated too and the submissions as made before him have not been considered properly. 6. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed .....

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that the letter of the Commissioner of Income-tax-Departmental representative clearly demonstrates that whatever points were dictated by him, the same were copied word by word by the Commissioner of Income-tax while issuing the notice under section 263 of the Act. The apprehension of the learned Commissioner of Income-tax-Departmental representative, in the said letter was that the order of the Assessing Officer in the assessment year 2010-11 was going to adversely affect the Departmental appeal .....

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y her after detailed application of mind. The Assessing Officer has applied her mind to various issues concerning deduction under section 80-IB of the Act, which were later on raised by the Commissioner of Income-tax in his notice under section 263 of the Act. Our attention was 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, .....

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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 even the issue of integrat .....

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y her in a number of notices issued to the assessee, which were duly replied by the assessee. After considering all these replies, the Assessing Officer had allowed only a portion of the deduction claimed by the assessee. 7. Another contention of the learned counsel for the assessee that the Commissioner of Income-tax in his order, himself affirmed the facts that all these issues were before the Income-tax Appellate Tribunal in the assessment years 2008-09 and 2009-10. Therefore, even on the mer .....

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of Income-tax-Departmental representative, stated that this document is an internal document for the purpose of administration and nothing beyond that and, therefore, no cognizance of the same should be taken qua the said document. This document can never be construed as record for the purpose of the provisions of section 263 of the Act. On the merits of the case, the learned Departmental representative relied on the order of the Commissioner of Income-tax and further stated that even if the al .....

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he 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 .....

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esent in the assessment years 2008-09 and 2009-10 also in the assessee's case at the time of hearing before the Assessing Officer. However, at the time of passing of order under section 263 of the Act, the issues were decided by the Income- tax Appellate Tribunal in ITA Nos. 250 and 251/Chd/2013 for the assessment years 2008-09 and 2009-10. The Commissioner of Income-tax himself admits that the issues have been decided in favour of the assessee by the Income-tax Appellate Tribunal. However, .....

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s order under section 263 of the Act has stated that since these points were held against the assessee by the Assessing Officer and also the Commissioner of Income-tax (Appeals) in the assessment years 2008-09 and 2009-10, the order in the relevant assessment year is erroneous since the Assessing Officer has not maintained consistency in her view point. 10. For invoking the jurisdiction under section 263 of the Act, twin conditions of the order being erroneous as well as prejudicial to the inter .....

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that the view taken by a higher authority is binding on all the lower authorities. The view taken by the Income-tax Appellate Tribunal is binding on the Assessing Officer as well as the Commissioner of Income-tax (Appeals) and even on the Commissioner of Income-tax, assuming jurisdiction under section 263 of the Act. Even if at the time of passing the order, the Assessing Officer did not have the benefit of the order of the Income-tax Appellate Tribunal in the earlier years, the Commissioner of .....

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