TMI Blog2018 (2) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO has taken one view with which CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is not sustainable in law”. A view taken in consonance with the Tribunal decision cannot be said to unsustainable in law. Clearly, therefore, the learned Commissioner was in error in invoking his revision powers under section 263 in respect of additional depreciation on windmill. As regards the Commissioner’s invoking the revision powers under section 263 in respect of, what is termed as by the CIT, “excess claim of ₹ 68,02,000”, we have noted that the stand of the assessee is that these expenses are duly deductable under section 37(1), that the assessee had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble CIT-I, Baroda is bad in law, since the conditions laid down in section 263 of the Act viz. namely, (i) the order of the assessing officer sought to be revised is erroneous; and (ii) it is prejudicial to the interest of the revenue, are not satisfied. It be held so now and order passed by the Hon'ble CIT-I, Baroda be quashed. 2) The action of the Hon'ble CIT-I, Baroda is not justified, since all the issues involved are highly debatable. Therefore the action of Hon'ble CIT-I, Baroda is unjust and uncalled for. It be held so now and the order passed by Hon'ble CIT-I, Baroda be cancelled. 3) The Hon'ble CIT-I, Baroda has erred in setting aside all the issues involved in the order passed u/s 263 of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68,01,958/- Your appellant submits that the said expenses debited under the head donations are in fact business expenses incurred in the ordinary course of business and for the purpose of business. There are fully allowable as per the provisions of the Income Tax Act and hence the direction given by the Hon'ble CIT-I, Baroda is unjust and uncalled for. It be held so now and the direction given by Hon'ble CIT-I, Baroda be cancelled. 3. To adjudicate on this appeal, only a few material facts need to be taken note of. The assessment under section 143(3) was completed on 30.12.2011. Subsequently, however, the Commissioner invoked his revision powers under section 263 on the two points (i.e. additional depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in the scheme of things. Therefore, it cannot be said that the question raised in the present proceedings is covered by the decision in the case of M/s VTM Ltd. It is the contention of the assessee that Assessing Officer had allowed the claim in the light of the decision in the case of CIT vs VTM Ltd. It is apparent that the Assessing Officer had not considered the implications of the amendment brought in section 32(1)(iia) as noted above. It is, therefore, held that the order passed by the Assessing Officer was erroneous as well as prejudicial to the interest of Revenue. .... ..... 7. In respect of excess claim of ₹ 68,02,000/- it has been contended that these amounts were in the nature of business expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to assessment year 2006-07 onwards, as per which there is no condition regarding substantial expansion by way of increase in installed capacity of an industrial undertaking. He has also referred the explanatory memorandum to the Finance Actof 2005. We find that in such explanatory memo, it is specifically stated that the requirement of fulfilling the conditions of expansion in installed capacity has been dispensed with. Under this factual position, we do not find any reason to interfere in the order of Ld. CIT(A) on this issue. This ground of the revenue is rejected. 7. The above contentions are duly noted at page nos. 3 4 of the impugned order, and yet the learned Commissioner has proceeded to treat the order passed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as requisitioned by the Assessing Officer, at the assessment stage copies of which are placed at pages 44 to 59 of the paper-book filed before us, and yet the Commissioner has remitted the matter to the file of the Assessing Officer for necessary verification. As a matter of fact, the learned CIT has justified the action on the ground that since the order is being set aside on other issues, this issue is also set aside and the Assessing Officer is directed to examine the nature of these payments as per law . As the things stand now, however, the order under section 263 on the other issue (i.e. additional depreciation) stands vacated. In any case, it is not even the case of the CIT that there is any error in the claim or this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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