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M/s. Cairn India Ltd. Versus Director of Income Tax (International Taxation)

2017 (11) TMI 643 - MADRAS HIGH COURT

Revision u/s 263 - Claim for deduction made under Section 80IB - SCN issued by the DIT - variance between what is stated in the SCN, and that, which was noted in the order of DIT - Held that:- While, there was, clearly, a variance between what is stated in the SCN, and that, which was noted in the order of DIT, that by itself would not render the order passed under Section 263 of the 1961 Act illegal, as long as at the stage of hearing, the Assessee was given due opportunity to rebut the concern .....

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the hearing and prior to passing an order under Section 263 of the 1961 Act. Accordingly, question No.2 is also answered in favour of the Revenue, and against the Assessee. - Nothing on record to suggest that at any stage, which is at the show cause stage or at the time, when, hearing was held before the DIT, adequate opportunity was given to the Assessee to rebut the concerns and/or underlying material, if any, that the DIT, had in his possession. - Decided in favour of assessee. - Trib .....

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ous and prejudicial to the interest of the Revenue, was, that, according to them, the Assessing Officer had not applied his mind to the materials placed on record by the Assessee. In so far as the Assessee was concerned, it claimed that it had worked out the deduction in accordance with the provisions of Section 80IB(13) of the 1961 Act, which, in turn, referred to sub-section (7) to (12) of Section 80IA of the very same Act.- Decided in favour of assessee. - The Tribunal was, clearly, in er .....

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by Mr.Vijay Kumar Funna JUDGMENT Rajiv Shakdher, J. Prefatory Facts : 1. This is an appeal preferred by the Assessee against the judgement and order of the Income Tax Appellate Tribunal (in short, the Tribunal) dated 20.12.2012, pertaining to Assessment Year (AY) 2004-2005. 1.1. The Assessee had challenged the order dated 12.03.2009, passed by the Director of Income Tax (International Taxation) [hereafter referred to DIT], Chennai, under Section 263 of the Income Tax Act, 1961 (in short, the 19 .....

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2. Before we proceed to adjudicate the substantial questions of law framed in the instant appeal at the time of admission, it would be appropriate to advert to the essential facts, which led to the institution of the present appeal : 2.1. The Assessee is a company incorporated in New South Wales, Australia, and is a subsidiary of an entity by the name Cairn Energy PLC. Cairn Energy PLC. is a company incorporated in Edinburgh, UK. 2.2. The India operations are carried out via the Assessee. The As .....

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na Godavari (ii) CB-OS/2 Cambay Offshore (iii) KG-OS/6 Krishna Godavari (iv) RJ/OS/90/1 Rajasthan (v) KG/DWN/98-2 Krishna Godavari 2.4. The participating interest acquired by the Assessee was taken forward by entering into Production Sharing Contract (in short, PSC) qua each block with GOI along with other Joint Venturers, who were likewise involved in the exploration and production of oil and gas. In respect of each of the oil and gas blocks referred to above, the Assessee entered into a Joint .....

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sideration, the Assessee filed its return on 28.10.2004, whereby, it declared a total income of ₹ 49,16,89,883/-, after claiming deduction under Section 80IB(9) of the 1961 Act. The deduction claimed under Section 80IB(9) was an amount equivalent to ₹ 68,55,77,018/-; being purported profits and gains derived by the subject undertakings from production and refining of mineral oil. 3.1. According to the Assessee, the deduction, in the sum of ₹ 68,55,77,018/-, claimed by it, was a .....

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vis the SGF unit took place in September, 2001, i.e., the period relevant for AY 2002-2003, while, in the case of the LGF unit, the first commercial production took place in November, 2002, i.e., AY 2003-2004. 3.3. Evidently, upon a return being filed by the Assessee for AY 2004-2005, a notice under Section 143(2) of the 1961 Act, for scrutiny, was issued on 20.04.2005. 3.4. This was followed by a questionnaire dated 16.06.2006. Via the said questionnaire, the Assessee was called upon to justify .....

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, copies of the PSCs, of the relevant gas blocks, as also the break-up of exploration and development expenses was also provided. The Assessee made it a point to advert in the reply that the computation of the deduction claimed under Section 80IB of the 1961 Act had been made on the same basis as was done in the preceding AYs. The Chartered Accountant's (CA's) certificate dated 13.10.2004, for each of the two gas fields, i.e., SGF unit and LGF unit, the Audit Report in the prescribed for .....

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₹ 8,66,77,608/- under the following heads : (i) provision made with respect to site restoration cost; (ii) purchase of software; and (iii) club membership fee. 3.7. In so far as deduction claimed under Section 80IB(9) of the 1961 Act was concerned, the same was sustained. 3.8. The DIT, however, took umbrage to the Assessing Officer sustaining the deduction claimed under Section 80IB(9) of the 1961 Act, by the Assessee, and accordingly, issued a Show Cause Notice dated 21.01.2009 (in short, .....

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year 2004-05 in respect of two units viz. (i) Rava Satellite Gas unit and (ii) Laxmi Gas Field to the extent of ₹ 20,16,10,345 and ₹ 48,39,66,673 respectively. The same was allowed by the assessing officer in the assessment u/s 143(3) dated 28-12-2006. The claim of the company for deduction u/s 80IB(9) has not been computed in accordance with the provisions of section 80IB(13) read with section 80IA(5). Hence it is clear that the action of the assessing officer in computing deductio .....

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the very same notice, an opportunity was granted to the Assessee to put forth its objections in person. The date and time for the said purpose was also intimated. 4. Accordingly, the Assessee furnished a reply dated 25.02.2009, on 05.03.2009, when, hearing in the matter was held by the DIT. It appears that, though, the SCN fixed the date of hearing as 13.02.2009, that hearing was shifted to 05.03.2009, based on the request made by the Assessee. 4.1. Thus, submissions on behalf of the Assessee w .....

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regard to SGF unit and LGF unit, which can be, broadly, paraphrased as follows : SGF Unit: (i) The Assessee had not declared as to whether or not AY 2003-2004, was the first year of commercial production. This declaration was necessary as deduction under Section 80IB of the 1961 Act, could be claimed only from the year, in which, commercial production commenced. (ii) In terms of Section 80IB(13) read with Section 80IA(7), the undertaking claiming deduction has to get its accounts audited and fil .....

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ction 80IB(5) of the 1961 Act. (iv) The Assessee commenced the preparation of its audited accounts only from the year in which, it claimed deduction under Section 80IB and not from the date of its inception, i.e., the year, in which, it commenced commercial production. As a result, all expenses incurred prior to the year in which commercial production commenced, had not been carried forward and set off against profits derived from the concerned undertaking, qua which, deduction under Section 80I .....

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2001-2002, indicated that the LGF unit was not a separate undertaking distinct from the concerned block (i.e., CB-OS/2), and that, it only formed part of the said block. Hence, the LGF unit was not entitled to deduction under Section 80IB(9) of the 1961 Act, without examination of the issue. That part of the note contained in the Assessee's financial statements, which was extracted by the DIT, reads as follows : ..... On 20th January, 2001, the discovery of gas within the CBOS 2 Contract are .....

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vate Limited V. State of Tamil Nadu 219 ITR 244, were distinguished on the ground that they had no applicability to the facts, which obtained in the instant case. The DIT, on the other hand, relied upon the decision in the matter of : Ashok Leyland V. CIT, 260 ITR 599, which according to him, applied squarely in the fact situation obtaining in the present case. The assessment made was, consequently, set aside and a direction was issued to the Assessing Officer to examine the allowability of dedu .....

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d not travel beyond the SCN, and that, if, he chose to travel beyond the SCN, adequate opportunity had to be given before passing a final order. The Tribunal observed in the impugned judgement and order that it agreed with the proposition of law as conceived in the additional ground filed by the Assessee, and being a question of law, it would permit the additional ground to be taken on record. 4.6. The Tribunal, on its part, in the impugned judgement and order has returned the following findings .....

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) of the 1961 Act. In the annexures appended thereto, the Assessee had given a short narration of the basis adopted by it for allocation of expenses qua the SGF unit and LGF unit out of the total expenses incurred by it. The short reasoning with regard to allocation was given against Sl.No.5 in the annexures appended to the audit report, and also, each head of operating expense was mentioned by the Assessee. (iii) The Assessing Officer had, obviously, sought information from the Assessee as to t .....

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findings/observations, went on to sustain the order of the DIT, albeit, on the following grounds : (i) That the Assessing Officer had not examined whether the SGF unit was a separate undertaking, as required under Section 80IB(5) of the 1961 Act, given the circumstances that the Ravva block was in operation since 1994. (ii) No doubt, the SCN does not refer to Section 80IB(5), it cannot be denied that if, the deduction is not worked out, in accordance with Section 80IB(13) and Sub-section (7) to .....

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, as for the earlier years the Assessing Officer had no occasion to examine the Assessee's claim for deduction under Section 80IB of the 1961 Act. The year in issue was the first year, in which, the Assessee had claimed deduction under Section 80IB of the 1961 Act qua the SGF Unit. (iv) Though, the DIT in paragraph 6 of its order had observed that the Assessee was not eligible for claiming deduction under Section 80IB, however, the final direction issued by him to the Assessing Officer was t .....

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eduction made by the Assessee under Section 80IB(9). (vi) Since, the Assessee cited the judgement of this Court in Silver Cloud Estates Pvt. Ltd. V. State of Tamil Nadu, 219 ITR 244, for the proposition that the DIT could not travel beyond the scope of the SCN, it only meant that the DIT had put the Assessee on notice that it was not eligible to claim deduction under Section 80IB of the 1961 Act, during the course of proceedings held before him. Therefore, the Assessee's plea that DIT had no .....

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was stated in the SCN. Even if, there was a variance, it could be cured under Section 292B of the 1961 Act. (viii) Even though, the Assessee had given to the Assessing Officer, a short description of how the expenses had been allocated, it could not supply a meaningful link between the basis adopted and the allocation of expenses made, which was necessary in order to sustain the deduction under Section 80IB. (ix) From a perusal of the record, it could not be discerned as to how the Assessing Of .....

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f mind by the Assessing Officer with regard to the claim made. Thus, the order of the Assessing Officer was both erroneous and prejudicial to the interest of the Revenue. (xi) It is not disputed that the claim for deduction as put forward by the Assessee was accepted without any variation in amount by the Assessing officer. The assessment order simply allowed the claim under Section 80IB, by observing as made by the Assessee. There was, thus, clearly, a failure on the part of the Assessing Offic .....

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Act, but the aspects, which we understand, were raised by the DIT were not verified by the Assessing Officer, while, completing the assessment. 4.8. It is in this background, that the instant appeal has been preferred by the Assessee. Submissions of Counsels 5. In support of the appeal, on behalf of the Assessee, arguments were addressed by Mr.C.S.Agarwal, Senior Advocate, instructed by Mr.M.V.Swaroop, while, on behalf of the Revenue, submissions were made by Mr.T.Ravikumar, assisted by Mr.Vija .....

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read with 80IA(5) of the 1961 Act. The impugned order, however, went into the aspects pertaining to eligibility of the Assessee to claim deduction under Section 80IB, and that too, without confronting the Assessee with that allegation. Therefore, the order of the DIT passed under Section 263 of the 1961 Act, travelled beyond the scope of SCN. (iii) The order passed under Section 263 of the 1961 Act did not record any definitive findings, and, in fact, set aside the assessment order on facts, whi .....

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approach adopted by the DIT in as much as he failed to appreciate the distinction between an error, if any, made in computing the deduction and that which pertained to the eligibility of the Assessee to claim the deduction itself. The issue pertaining to error of computation would arise only, if, otherwise, the Assessee is eligible to make a claim for deduction under Section 80IB. In the SCN, DIT did not raise an issue with regard to the Assessee's eligibility to claim deduction under Secti .....

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reliance was placed on the judgment of the Bombay High Court in : CIT Vs. Gabriel India Ltd., 203 ITR 108 (Bom.). (vii) There was an inherent contradiction in the order of the DIT. On one hand, DIT held that the Assessee was not eligible to claim deduction under Section 80IB, on the other hand, in the same breath, he has directed the Assessing Officer to examine the allowability of the deduction and recompute the same in accordance with the provisions of Section 80IB of the 1961 Act. This observ .....

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placed on the decision of the Supreme Court in : Malabar Industrial Co. Ltd. Vs. CIT, 243 ITR 83 (SC). (viii) The Tribunal failed to appreciate that the DIT could not have exercised revisional power, unless he had put the relevant material warranting exercise of such power, to the Assessee. Given the fact that the DIT had failed to furnish the relevant material, (and thereby, denied the opportunity to the Assessee to rebut the same), the Tribunal ought to have interfered with the order of the DI .....

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n the matter : CIT Vs. PVP Ventures Ltd., 23 taxmann.com 286 (Mad.)]. (x) The failure to mention in the SCN that the Assessee was not eligible to claim the deduction, or, did not satisfy the requirements of Section 80IB, or, that the claim had not been examined in the light of the provisions of Section 80IB impregnated the order passed under Section 263 of the 1961 Act, with illegality. Reliance, in this behalf, was placed, once again, on the judgement of the Karnataka High Court in : CIT Vs. Lf .....

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to the eligibility of the claim made, was perverse, as this finding was not based on any material on record, which would suggest that it had knowledge of such a objection being raised by the DIT. The observation of the Tribunal, therefore, that because the Assessee had relied upon the judgement of this Court in Silver Cloud Estates Pvt. Ltd., it had notice of the fact that its eligibility to claim deduction was in issue, was perverse. The reason being that the said judgement had been relied upon .....

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i) The observation of the Tribunal that non-computation of deduction in the manner specified under the Act could only result in denial of deduction under Section 80IB of the Act, was erroneous, as such an observation/finding read much more into what was not stated either in the SCN or, even in the order passed under Section 263 of the 1961 Act. These findings were recorded by the Tribunal in order to overcome the ratio rendered in the judgement of this Court in : CIT Vs. PVP Ventures Ltd., 23 ta .....

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cer had examined not only the eligibility of the claim made by the Assessee, but also the computation made in that behalf. It was stated by the Assessee, in its reply dated 03.11.2006, that the computation had been made, as was done for the earlier AYs. In so far as the indirect expenses were concerned, since, the Assessee was operating five (5) blocks, the expenditure was, firstly, allocated to each block in the ratio of 1:5, and thereafter, sub-allocated on the basis of Barrel of Oil Equivalen .....

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act, overlooked the report filed and issued notice without examining the computation made by the Assessee, as supported by the report filed in that behalf. (xiv) The observation of the Tribunal that there was no application of mind by the Assessing Officer is contrary to the facts and thus, tantamount to exercising jurisdiction, which is not vested in it. The reason being that this was not even the assertion of the DIT. The observation made by the Assessing Officer qua the deduction claimed by t .....

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rvation of the Tribunal that failure to advert to that Section was not fatal, was, clearly, erroneous. (xvi) The further observations of the Tribunal that this defect could be cured by referring to Section 292B of the 1961 Act, was also flawed. (xvii) The Tribunal failed to appreciate that the Assessee had commenced preparing its audited accounts in respect of its claim for deduction - from the year, when, commercial production began, in consonance with the decision rendered by this Court in : V .....

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Tribunal. (xviii) The DIT failed to appreciate that there was no requirement under the 1961 Act to maintain separate books of accounts in respect of the undertaking qua which, a deduction was claimed under Section 80IB. The Tribunal, while, recognising this aspect, still went on to sustain the order of the DIT, ignoring the fact that the audited accounts for the relevant period vis-a-vis the undertaking in respect of which, deduction was claimed, had, in fact, been placed on record. (xix) Both .....

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r had not examined the claim in respect of the LGF unit is vague, when a similar plea in respect of the SGF unit had, clearly, been examined. 7. Mr.T.Ravikumar, on the other hand, relied, largely, on the impugned judgement and order of the Tribunal and the order of the DIT. It was submitted by the learned counsel for the Revenue that no interference was called for in the facts and circumstances of the case. The learned counsel emphasised the fact that the SCN was not at variance with the order p .....

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SC). 8. We have heard the learned counsel for the parties and perused the record. 8.1. However, before we proceed further, we may summarise the broad principles of law, which are required to be kept in mind by the Commissioner, while exercising his power under Section 263 of 1961 Act: (i) The power is supervisory in nature, whereby the Commissioner can call for and examine the assessment records. (ii) The Commissioner can revise the assessment order if the twin conditions provided in the Act are .....

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sing Officer, accepts what is stated in the return of the assessee without making any enquiry called for in the circumstances of the case, that is, proceeds with undue haste". [See Gee Vee Enterprises vs ACIT, Delhi-I & Ors. (1975) 99 ITR 375] (iv) The expression "prejudicial to the interest of the Revenue" while not to be confused with the loss of tax will certainly include an erroneous order which results in a person not paying tax which is lawfully payable to the Revenue. [ .....

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ce before commencing proceedings under Section 263 of the Act. What is required is adherence to the principles of natural justice by granting to the assessee an opportunity of being heard before passing an order under Section 263. [CIT Vs. Electro House (1971 82 ITR 824 (SC)]. (vii) If the Assessing Officer acts in accordance with law his order cannot be termed as erroneous by the Commissioner, simply because according to him, the order should have been written more elaborately". Recourse c .....

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s emerged upon perusal of the record, and that, which is not in dispute, is as follows : (i) The Assessee is in the business of oil and gas exploration. In the course of its business carried on in two (2) blocks via two (2) units, i.e., SGF unit and LGF unit, it, evidently, derived profits and, thus, claimed deduction under Section 80IB of the 1961 Act. (ii) The two (2) units, qua which deduction was claimed are : SGF unit and LGF, unit located in Ravva Joint Venture Block and CB-OS/2 Joint Vent .....

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indicated in paragraph 2, that the total income declared by the Assessee was ₹ 3,34,20,644/-. A perusal of the return for AY 2004-2005, would show that the Assessee had, in fact, declared the total income in the sum of ₹ 49,16,89,883/-. (v) The Assessee was issued a notice for scrutiny under Section 143(2) of the 1961 Act, whereupon, the hearing was held on 16.10.2006, calling upon the Assessee to give information, inter alia, with respect to the deduction claimed under Section 80IB .....

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tipulated for claiming deduction under Section 80IB stood satisfied. (See the audit report in the prescribed form, i.e., Form No.10CCB). (viii) The audit report, which, the Assessee submitted with regard to the two (2) units, i.e., SGF unit and LGF unit, undoubtedly, gave the information with regard to the date of commencement of operations; the initial AY; the quantum of deduction claimed; and the basis for allocation of costs. In this connection, it would be important to note that in so far as .....

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nit, the date of commencement of operation was given as 01.11.2002; the initial AY, for which deduction was claimed, was given as 2003-2004; the deduction claimed under Section 80IB, which was pegged at ₹ 48,39,66,673/- was set out in the prescribed form; and lastly, in Annexure B appended to the prescribed form, i.e., Form 10CCB, it was, clearly, stated that the Profit and Loss account under Section 80IB for the relevant AY was related to the second year. In this annexure, once again, lik .....

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behalf, was 13.02.2009. The date of hearing was, however, shifted by the DIT to 05.03.2009, albeit, at the request of the Assessee. (x) In response to the same, the Assessee filed a reply dated 25.02.2009. The record of the Revenue, furnished to us, is indicative of the fact that this reply was handed over to the DIT at the hearing held on 05.03.2009. (xi) Thereafter, the DIT, passed the order under Section 263 of the 1961 Act, on 12.03.2009. This order was sustained by the Tribunal vide order d .....

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ation; the initial assessment year; when, the deduction was claimed; the quantum of deduction claimed; whether or not the profit and loss account qua the said activity in order to claim deduction under Section 80IB had been filed, for the first time ; and, lastly, the basis, on which, common expenses had been allocated, as the said units, that is, SGF and LGF units, were part of the Ravva Joint Venture Gas Block and CB-OS/2 Joint Venture Gas Block respectively. 9.2. The Assessing Officer, thus, .....

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mple, in case of the SGF unit, it is the DIT's observation, in its order dated 12.03.2009, that it is not indicated as to whether or not AY 2003-2004 was the first year of commercial production. This is, clearly, wrong, in view of what we have noted hereinabove. Similarly, the observation of the DIT that the concerned undertaking (i.e., SGF unit), should have maintained separate accounts right from the date of inception, is, in our view, an error of law, as Section 80IB does not mandate that .....

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Officer, after completing the assessment, in fact, enhanced the total income to a figure of ₹ 109,59,99,910/-. 9.4. The fact of the matter is that the order of the DIT, as correctly argued by the learned counsel for the Assessee, is, in fact, impregnated with both factual and legal error. 9.5. There are other aspects, which, the DIT has found fault with, while, revising the Assessing Officer's order, can be, broadly, paraphrased as follows : (i) That the SGF unit could not be considere .....

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rs. (iv) An observation was also made by the DIT with respect to the audit expenses. The DIT is of the view that, since, the audit expenses had been shared between SGF and LGF units, it demonstrated that no separate and independent exercise had been undertaken as to what expenses were, exclusively, attributable to the two units. (v) Likewise, based on the statement made by the Assessee in paragraph 3 of the financial statement for AY 2001-2002, the DIT concluded that the LGF unit was not an unde .....

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ses incurred in the period prior to the year, in which, commercial production had commenced, reliance was placed by Mr.Agrawal, on the judgement of this Court rendered in Velayuthaswamy case. The argument advanced was that the Assessee was prohibited in such like cases, from carrying forward losses incurred prior to the year, in which, commercial production had commenced. 10. In our view, all these aspects could have been answered by the Assessee, only, if, the SCN issued by the DIT had, clearly .....

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the SCN and the order of the DIT dated 12.03.2009, to our minds, was factually not correct. The Tribunal, as a matter of fact, appears to have got over this defect, in our opinion, by observing that ... non-computation of the deduction in the manner specified in the Act, could have resulted only in denial of Section 80-IB ..... 11. No doubt, there is no requirement in law to issue a notice under Section 263 of the 1961 Act, but, once, the DIT chooses to issue, he should specify as to why the ass .....

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discloses to the Assessee, the material, if any, he has in his possession, which led him to believe that the assessment order passed is both erroneous and prejudicial to the interest of the Revenue. 11.2. It is our view that, if, the Assessee is not confronted with material, which is available with the DIT, which has caused him to exercise the revisional power vested in him under Section 263, the exercise of jurisdictional would be irregular. Section 263 of the 1961 Act confers powers on the DI .....

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hand. The record disclosed that the proposal to exercise power under Section 263 emanated from an audit objection. Based on the audit objection SCN was issued to the Assessee. The record further showed that the SCN, which is dated 21.01.2009, in the first instance, fixed the date of hearing as 13.02.2009, which was adjourned to 05.03.2009, at the request of the Assessee. The record also disclosed that the one and only time the Assessee's representative was called for hearing was on 05.03.20 .....

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units, that is, SGF and LGF units, were not separate undertakings and hence, not eligible to claim deduction under Section 80IB. 11.4. Therefore, to our minds, even if, we were to accept, for the moment, the line of reasoning taken by the Tribunal that there was no effective variance between what was stated in the SCN and that, which was found mentioned in the DIT's order, we are unable to accept the stand of the Revenue that the DIT had, in fact, put his concern and/or the material, on whi .....

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gard to the observations made in paragraph 11 of the judgement. For the sake of convenience, the same are extracted hereafter : ..... 11. It may be that in a given case and in most cases it is so done a notice proposing the revisional exercise is given to the assessee indicating therein broadly or even specifically the grounds on which the exercise is felt necessary. But there is nothing in the section (Section 263) to raise the said notice to the status of a mandatory show cause notice affectin .....

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by the assessee, must be afforded to him by the C.I.T. prior to the finalization of the decision......(emphasis is ours) 11.6. A close scrutiny of the facts obtaining in the aforementioned judgement of the Supreme Court would show that the reason the appeal of the Revenue was allowed, was that, the record did not show that the revisional authority had not given an opportunity to the Assessee to controvert, the facts on the basis of which it had concluded that the order of the Assessing Officer w .....

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gnores, completely, the material placed on record by the Assessee. Aspects as to whether or not SGF and LGF units were separate undertakings and as to why SGF unit ought to have carried forward the losses of the period prior to the date of commencement of commercial production and have it set it off against profits derived from the said unit, were, evidently, not put to the Assessee. The Tribunal, in the impugned judgement and order, skirts this vital issue. In our opinion, there is no finding r .....

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iew, Section 80IB(5) has no relevance for claiming deduction under Section 80IB(9). Therefore, the observation that the defect could be cured by taking recourse to Section 292B of the 1961 Act, was, in a sense, superfluous. Thus, the submissions made on behalf of the Assessee, in this regard, are, required to be sustained. 13. Therefore, having regard to the discussion above, our answers to the questions, as framed, are as follows : Question No.1 :1 13.1. Our answer to question No.1 is that, whi .....

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efore, this question is answered in favour of the Revenue and against the Assessee. Question No.2 :2 13.2. Our answer to question No.2 is similar to our answer to question No.1, which is that, though no SCN was issued with regard to the admissibility of the deduction claimed by the Assessee under Section 80IB(9), opportunity, in that behalf, ought to have been given by the DIT at the stage of conducting the hearing and prior to passing an order under Section 263 of the 1961 Act. Accordingly, que .....

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o.4 :4 13.4. In so far as answer to question No.4 is concerned, the same will have to be in favour of the Assessee, and against the Revenue, as the Tribunal could not have come to a conclusion that the Assessee had not worked out the deductions in accordance with the provisions of Section 80IB(13), without the DIT giving adequate opportunity to the Assessee. As noted by the Tribunal and also by us, the relevant material required for claiming deduction under Section 80IB had been placed on record .....

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