TMI Blog2017 (9) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... C . Dande, Sr . DR ORDER PER SUCHITRA KAMBLE, JM The appeal is filed by the assessee against the order dated 17/3/2015 passed by Pr. Commissioner of Income Tax- Noida for Assessment Year 2010- 11. 2. The grounds of appeal are as under:- 1 . That the Learned CIT ( Ld . CIT ) has erred on facts and in law in setting aside the assessment to be made de novo . 2 . That the order of Ld . CIT is unlawful and beyond permissible jurisdiction under section 263 of the Income Tax Act ( Act ). The order of Learned Assessing Officer ( Ld . AO ) is not an erroneous order prejudicial to the interest of the revenue within the meaning of section 263 of the Act . As such too, the order of Ld . CIT is unlawful and is liable to be quashed . 3 . That the Ld . CIT has referred to and relied upon the order in A . Y . 2009 - 10 of the Ld . 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 ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense with interest income, regarding deduction of depreciation and regarding reasonableness of payments to Jaiprakash Industries Ltd . in context of applicability of section 40A ( 2 )( b ). The Ld . CIT has erred in stating that the Ld . AO has not examined whether interest was deductible under section 80IA, whether section 40A ( 2 )( b ) was applicable and whether depreciation was admissible . 8 . That the above claims as in ground 7 have been processed and correctly allowed after due consideration . There is no final finding by the Ld . CIT that these claims are incorrect . The assessee was duly entitled to these claims which are correctly allowed and as such too setting aside the assessment to be made de novo is unlawful and the order of the Ld . CIT deserves to be quashed . 9 . That the order of the Ld . CIT is based on erroneous views and non appreciation of the facts and law involved including binding case law supporting the appellant which include decisions of the Hon'ble Apex Court and Hon'ble Jurisdictional High Courts . Inter alia the Ld . CIT has erred in not following the ratio of the decision in 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd replies to the queries raised during the course of assessment proceedings. Books of accounts with bills/ vouchers were produced. The replies submitted by the assessee were gone through by the Assessing Officer along with the Concession Agreement and Assignment Agreement with the state government relating to Yamuna Expressway which is connecting Noida to Agra in the state of Uttar Pradesh. The Assessing Officer held that the assessee furnished necessary details/documents is respect of its claim of deduction u/s 80IA in respect of its eligible business u/s 80IA(4) of the IT Act, 1961 therefore, assessee is eligible for deduction u/s 80IA of the Act. Therefore, assessee's claim of deduction u/s 80IA was accepted by the Assessing Officer. An order under Section 263 of the Act was passed on 30.03.2014 for A.Y. 2009-10 in which it was held that the Assessing Officer in that year, had passed an order which was erroneous and prejudicial to the interest of revenue, insofar as the allowance of deduction under section 80IA of the Act was concerned as also for the reason that such deduction has been allowed in respect of ineligible income and depreciation had been allowed even while the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment of an eligible infrastructure facility and the rights for income from the development of land was an integral part of the said project. It was reiterated that the case of the assessee falls within the clause (a) and not clause (b) of the Explanation, referred to above. It was contended that the provisions of section 80IA (6) of the Act are* attracted for the case which falls within clause (b). The limits and requirements of that section are not applicable to the assessee company. At the same time, without prejudice to be out of contention, the assessee also has made an alternative claim under section 80 IA (6). It has also been contended that the deduction, being a beneficial provision, or promote investment in and development of infrastructure facility and therefore, they are to be interpreted liberally so as to advance their objectives. 5. The CIT passed order u/s 263 of the Act as under:- 8 . In view of the above, the assessment framed u / s 143 ( 3 ) of the I . T . Act, 1961 dated 12 / 3 / 2013 is considered erroneous and prejudicial to the interest of revenue having been completed without proper appreciation of the relevant provisions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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