TMI Blog2018 (11) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... i Girish Agrawal, AR For the Respondent : Smt. Aashima Gupta, DR ORDER PER KUL BHARAT, J.M: This appeal by the assessee is directed against order of the Ld. Principal Commissioner of Income Tax-1, Bhopal dated 14.3.2016. The assessee has raised following grounds of appeal: (1) That on the facts in the circumstances of the case and in law, the finding of the learned Pr. CIT that, the order of assessment passed by the A.O. dated 31.03.2014 passed u/s.143(3)/254 is erroneous in so far as it is prejudicial to the interest of revenue, are wholly unjustified and unlawful hence such findings be quashed and it be held that the said order is neither erroneous nor prejudicial to the interest of revenue within the meaning of section 263 of the Act and hence the order of Pr. CIT dated 14.03.2016 passed u/s.263 be quashed. (2) That on the facts in the circumstances of the case and in law, the learned A.O. after having considered/examined the various letters/sanctions/permissions issued by the government authorities have accepted the claim of the assessee u/s.801B(10), the acceptance of the said claim by the A.O. is in accordance with the directions of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2] 3. Ld. AO granted an opportunity to the assessee firm by issue of notices u/s 142(1) and 143(2) dated 24.10.2013. [PB 31-32 vol-2] 4. Ld. AO noted in the order u/s 143(3) rws 254 at Para 1.2 - In response to notice u/s 143(2) the assessee has filed before DCIT-I(I), Bhopal a fresh evidence of his claim which is placed on record. [emphasis supplied] a. In the set aside assessment proceedings, consequent to the directions of the Hon'ble ITAT, assessee firm filed its reply on 20.01.2014 along with all the relevant documentary evidences as listed in the said letter. [PB 6 - 23] b. Another reply was filed on 29.03.2014 before the Ld. AO along with certificate of Bhopal Municipal Corporation which confirmed that its earlier letter no. 275 dated 12.11.2009 was issued certifying completion of construction work for approval no. 279 dated 10.05.2005, addressed directly to the then AO and that it was issued on the basis of physical verification of the site carried out by it in February 2008. [PB 4-5] 5. Ld. AO noted in the order u/s 143(3) rws 254 at Para 1.3 - On verification of clarification letter dated 29.03.2014 issued b Bhopal Municipal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable on record. Ld. Pr CIT took the view that AO did not examine the facts of the case properly as it was required from him. It is stated that the claim of the assessee that the issues mentioned have been properly examined by the AO lacks merit. From the observations made by the Ld. Pr CIT in the impugned order, it is evident that all the allegations are directed towards AO not making proper enquiry as it was required from him. It is a settled law that provisions of section 263 can be invoked only in the case of lack of enquiry and not in cases where there is inadequate enquiry. Instant case is not a case of 'Lack of Inquiry'. Ld. Pr CIT desired inquiries to be conducted in certain manner does not warrant invoking provisions of section 263. 13. Ld. PR CIT stated - 'He has accepted the claim of the assessee on the basis of copy of a letter dated 29.03.2014 wherein it has been mentioned that the completion certificate dated 12.11.2009 was issued on the basis of spot inspection carried out in the month of February 2008. The AO has not even ascertained the genuineness of the letter .. The said letter is issued from the office of Municipal Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous and prejudicial to the interest of the revenue. 16. Based on above referred facts and circumstance of the case, it is respectfully submitted that the order u/s 143(3) rws 254 passed by the Ld. AO is neither erroneous nor prejudicial to the interest of revenue for the reasons given in subsequent paragraphs which have been exhaustively dealt in the decision of this Hon'ble Bench in the case of Prakash Asphalting Toll Highways (India) Limited Indore in ITA No. 301/1nd/2017 dated 20.12.2017 [PB 35 - 48]: a. Ld. Pr CIT was not legally correct in assuming jurisdiction u/s 263 as the twin conditions manifest in the law did not get fulfilled Provisions of section 263 would come into operation only if twin conditions manifest in the section are satisfied. Such conditions are that the order sought to be revised must be erroneous and secondly the order must be prejudicial to the interest of the revenue. It is a settled law that if either of these two conditions are not met, the provisions of section 263 cannot be invoked. In the instant case, in view of the facts and circumstances of the case and submission elicited herein above, it may be appreciated that the Assessment O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the returned income. [AO Para 1.3 and PB 04-05] d. Ld. AO specifically required the appellant to furnish details and explanation as regard to the issues raised in the show-cause notice by Ld. Pr CIT Ld. AO for the purpose of giving effect to the order of this Hon'ble Bench, had issued a notice under s. 142(1) of the Act on 24.10.2013. On a perusal of the notice, it shall be observed that Ld. AO had in specific terms called for submission of letter / certificate from the Local Authority clearly mentioning therein the date of completion of the project. Appellant replied to the said notice by furnishing all the details and supporting documents vide letter dated 20.01.2014 which has been duly acknowledged by the Ld. AO in the assessment order in Para 1.2. [PB 06 - 16] Ld. AO also very categorically stated in the assessment order at Para 1.3 that on verification of clarification letter dated 29/03/2014 issued by Bhopal Municipal Corporation, it is found that entire project of the assessee was completed within stipulated period is found correct. Accordingly, there was no lapse on the part of Ld. AO in conducting the necessary enquiry on the issue. Thus, the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, perused the materials available on record and gone through the orders of the authorities below. As per the direction of the Tribunal in earlier round of litigation, the A.O. was required to make enquiry with regard to completion of the project, we find that the A.O. has merely accepted the letter issued by Bhopal Municipal Corporation. 5. It is also noticed that Ld. Principal CIT revised the order of the A.O. by setting aside the assessment to the file of the A.O. One of the contention of the Ld. Counsel for the assessee is that no sufficient opportunity was granted to the assessee as it can be seen that the notice invoking provisions of section 263 of the Act was issued on 18.2.2016 and the impugned order was passed on 14.3.2016. It is submitted that no proper and sufficient opportunity of being heard was granted to the assessee. It is further stated that the order has been passed on the basis of the written submission. After considering the totality of the facts and considering the fact that as per provisions of section 263 of the Act, order of the A.O. can be revised by the Ld. Principal CIT, but the same provision mandates that such order cannot be passed without pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
