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TMI Blog2017 (9) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT u/s 263 on similar issues. The said order of the Ld. CIT in A.Y. 2009-10 has been quashed by the Hon'ble ITAT vide order dated 13.04.2015 in ITA No. 333/Del/2014. In view of the precedent of the Hon'ble ITAT in this appellant's case in the appellant's favour, the order under appeal is unlawful, without merit and deserves to be quashed on all the issues involved. 4. That the assessment under section 143(3) has been processed by the Ld. AO after duly considering the material, explanations and submissions on record including in context of applicable law. Mere difference in view between the Ld. CIT and Ld. AO cannot form the basis of action under section 263. Provisions of section 263 do not permit substitution of the Ld. CIT's opinion for the opinion of Ld. AO, particularly when the view of the Ld. CIT are contrary to the record, to precedents and case laws in appellants favour and contrary to the provisions of the Act. 5. That the appellant is entitled to the deduction under section 80IA(4) as allowed by the Ld. AO. Appellant is entitled to its claim inter alia in view of precedents in favour of the appellant. As such too, the Ld. CIT has erred in invoking jurisdiction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im under section 80IA(4) has been correctly allowed by the Ld. AO as also held by the Hon'ble ITAT in its said order in A.Y. 2009-10 in appeal against order of Ld. CIT u/s 263. The Ld. CIT has erred in setting aside the assessment. 10. That the order of the Ld. CIT, setting aside the assessment to be made de novo, rather than giving a final finding is unlawful, as also held by the Hon'ble ITAT in the said appeal in appellant's case in A.Y. 2009-10 following the decision of the Hon'ble Delhi High Court in Globus Infocom Ltd. 369 ITR14. 11. That without prejudice, in the alternative, as the appellant is eligible for deduction under section 80IA(6), even as per the view of the Ld. CIT, then in any case on the facts and law involved, the assessee is entitled to relief and deduction in this matter, be it under 80IA(4) OR 80IA(6). Setting aside the assessment to be made de novo is unlawful, uncalled for and would be merely an academic exercise if permitted. 12. That the grounds of appeal as herein are without prejudice to each other." 3. The assessee company is an infrastructure company engaged in the business of development, operation and maintenance of the six-lane access co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings whereby the case of payments, covered under section 40A(2)(b) of the Act and the reasonableness of such expenses; the details of loans and advances along with the details of interest; details of sundry debtors of more than Rs. 25 Lacs; and details of deduction claimed, if any, under Chapter VIA of the Act along with justification stating as why the deduction claimed be accepted by the Department, were called for. From the details furnished, the Pr. Commissioner of Income Tax observed that payments made to M/S Jai Prakash Associates Ltd, a party covered under section 40A(2)(b) of the Act of Rs. 21,11,49,36,781 was a debtor to the extent of Rs. 102,63,50,000 and further loans and advances was given to the party amounting to Rs. 420,00,00,000. As regards the response to the query regarding the reasonableness of payment made to related parties, a statement was given that such payments are "reasonable, essential and incurred during the course of business". As regards the query regarding deduction under Chapter VIA of the Act, it was stated that the company has claimed the deduction and the requisite auditor certificate was enclosed in Form No 10CCB. A show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the provisions of law, after affording adequate opportunity of being heard to the assessee." 6. Aggrieved by this, the assessee filed appeal before us. 7. The Ld. AR submits that in assessee's own case for Assessment Year 2009- 10 order u/s 263 was set aside by the ITAT in ITA No.3339/DEL/2014 vide order dated 13.04.2015. The Ld. AR further submitted for Assessment Year 2011-12 the contesting issue which was taken into account in the present assessment year was also decided in favour of the assessee (ITA No. 414/Del/2015 dated 06.09.2016. Therefore, order u/s 263 does not sustain in the present Assessment Year. 8. The Ld. DR could not controvert these factual aspects and the orders of the ITAT in assessee's own case for Assessment Year 2009-10 & 2011-12. 9. We have heard both the parties and perused the material available on record. The Tribunals order in the assessee's own case, the issue contested herein in is already decided for Assessment Year 2009-10 by this Tribunal. The ITAT held as under: "127. In light of aforesaid discussion, if we analyse the facts and circumstances of the present case, we observe that the assessee company is in the business of developing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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