TMI Blog2019 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. - ITA No.900/AHD/2017 - - - Dated:- 25-10-2019 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Assessee : Smt Arti N. Shah, A.R. For the Revenue : Shri O.P. Sharma, CIT.DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Pr. Commissioner of Income Tax-2, Ahmedabad [Ld. CIT(A) in short], dated 25/03/2017 arising in the matter of penalty order passed under s. 263 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) dated 26/03/2015 relevant to Assessment Year (AY) 2012-13. The assessee has raised the following grounds of appeal: 1. The Learned Principal Commissioner of Income Tax-2, Ahmedabad has erred in law and on facts of the case by holding that the assessment order passed by the Assessing Officer, Circle 2(2), Ahmedabad u/s.143(3) on 26.03.2015 for the assessment year under consideration is erroneous and prejudicial to the interest of revenue, without appreciating the submissions made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that the impugned project was not completed till 20th March 2012. As such, as per the provisions of the Act, the impugned project should have been completed on or before 31st March, 2012 for claiming the deduction under section 80IB(10) of the Act. b. In case of POR Project The assessee filed the application for the permission to develop the project to the office of GUDA dated 28th of March 2007 which was accepted vide letter dated 30th March, 2007 with the condition that the assessee shall file the approved layout plan, key plan, building plan and NA permission with the competent authority. Further the GUDA by order dated 27th October, 2010 granted the permission for the development of the impugned project. As per the Ld. CIT the permission for the development of the project should have been obtained by the assessee before 30th of March 2007. Accordingly he was of the view that the assessee is not eligible for the deduction under section 80IB(10) of the Act. In view of the above the Ld. CIT issued a notice to the assessee under section 263 of the Act proposing to hold the order of the AO as erroneous insofar prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project was not completed within the prescribed time i.e. 31st March, 2012 to claim the deduction. 5.3 Similarly, the permission for the development was granted with respect to POR project vide order dated 27th October, 2010 for 234 units only. As such the assessee defaulted in obtaining the permission for the development of the project within the prescribed time i.e. 31st March 2007. In view of the above the Ld. CIT held the order of the AO passed under section 143(3) of the Act is erroneous insofar prejudicial to the interest of the Revenue and accordingly directed the AO to reframe the assessment order under section 143(3) of the Act after making proper inquiries. Being aggrieved by the order of the Ld. CIT, the assessee is in appeal before us. 6. The Ld. AR before us filed two paper books running from pages 1 to 8 1 to 54 and submitted that the AO has framed assessment under section 143(3) of the Act after conducting proper inquiries by issuing notice under section 142(1) of the Act. The Ld. AR in support of her contention referred to the notice issued under section 142(1) of the Act as well as the reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the above deduction. Your submission should clearly mention you compliance as per the relevant clauses/sub-clauses of the above section. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10. Please explain about various project/scheme under taken/developed by you during F.Y. 2011-12 and submit details as under:- Sr. No. Name of Scheme Total area No of Units Unit sold Price per unit Total consideration received Balance unit 11. Please furnish copy of development approval and B.U. permission obtained from local authorities. 12. Please furnish docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prescribed format (Pge No.111 to 118). 8. (Point No.11) It is submitted that the copy of development approval and B.U Permission obtained from Local authorities of Housing projects (i.e Parshwanath Metro City Om Residency) are enclosed here-in-above with Audit Report in Form 10CCB in respect of deduction u/s.80IB(10) of he I.T. ct. Please refer Page NO.1 to 10CCB in respect of deduction u/s.80IB(10) of the I.T Act. Please refer Page NO.1 to 24. 8.3 We also note that the assessee has made the disclosure in the tax audit report in form 3CD about the projects and corresponding deduction claimed under section 80IB(10) of the Act and details of the units sold/unsold which is placed on pages 9 to 21 of the PB. In view of the above, we hold that the assessment order was framed under section 143(3) of the Act after due verification by the AO. Accordingly, we are of the view that the order of the AO cannot be held as erroneous insofar prejudicial to the interest of the Revenue on account of non-verification of the facts as stated above. 8.4 In holding so, we draw support and guidance from the judgment of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken, should not be the basis for an action under section 263 and it could not be held to be justified. 8.6 In this regard, we also draw our support and guidance from the judgment of Delhi High Court in the case of sunbeam auto ltd. reported in189 taxman 436 wherein it was held as under: The submission of the revenue was that while passing the assessment order, the Assessing Officer did not consider the aspect specifically whether the expenditure in question was revenue or capital expenditure. That argument predicated on the assessment order, which apparently did not give any reason while allowing the entire expenditure as revenue expenditure. However, that, by itself, would not be indicative of the fact that the Assessing Officer had not applied his mind to the issue. There are judgments galore laying down the principle that the Assessing Officer in the assessment order is not required to give detailed reasons in respect of each and every item of deduction, etc. Therefore, one has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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