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TMI Blog2019 (5) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... al on 26.09.2013 showing total income at Rs. 48,720/- after claiming deduction of Rs. 19,22,138/- u/s.80IB of the Income tax Act. The scrutiny assessment in this case was finalized vide order u/s0143(3) of the Act dated 18.03.2016 by accepting the return of income. During the year under consideration, the assessee firm was engaged in the development and construction of Real Estate and as shown income from other sources comprising FD Interest income of Rs. 48,721/- only and Nil business income have been shown after claiming deduction u/.80IB of the Act. It was noticed from the Profit and Loss Account and from the assessment record that assessee has not debited any amount therein on account of interest paid to partners on their capital introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision of payment of remuneration paid to the working partners. Partnership deed has already been filed and verified by the Assessing Officer. The assessee did not make claim of deduction of interest in the return of income. It was submitted that the issue is covered by judgment of Hon'ble Gujarat High Court in the case of Pr.CIT vs. Alidhara Taxspin Engineers in tax appeal no.265/2017 dated 02.05.2017 in which Hon'ble High Court has held that "on interpretation of the partnership agreement and considering the wish of the partners reflected in the partnership deed to not pay/charge interest on partner's capital and remuneration, the Tribunal has rightly deleted the disallowance made by the Assessing Officer with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceeded the maximum limit of 1500 sq.feet. Therefore, assessee is not entitled for deduction u/s.80IB of the Act. It is also noted the Assessing Officer passed the assessment order without making enquiry and verification which should have been made at the assessment stage. Therefore, assessment order was found erroneous and prejudicial to the interest of Revenue. The same was set-aside and Assessing Officer was directed to go through the facts of the case and make verification of each and every condition of section 80IB(10) and pass the order as per Law. 5. The ld.Counsel for the assessee reiterated the submissions made before the Learned Pr.CIT. He has submitted that audit report u/s.80IB(10) in form no.10CCB was also duly filed online b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. PB 57 to 62 are the details of the project undertaken by the assessee along with sale deed to show that area of the flat sold by assessee was less than the prescribed limit. PB-131 is computation of income of preceding assessment year 2012-13 in which no interest has been claimed and claim of assessee has been accepted u/s.143(3). PB-127 is dropping of the same audit objection for assessment year 2012-13. PB-36 is appellate order passed by the ld.CIT(A) dated 07.09.2018 in case of the same assessee for assessment year 2015-16 accepting the claim of the assessee of deduction u/s.80IB of the Act. PB-62 is sale deed along with PB-51 is details of flat sold to Jayantilal Ambalal Jain showing lesser area as per Law. PB-106 is assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld.CIT(A) allowed the similar claim of the assessee. The issue is also covered by the judgments of Hon'ble Gujarat High Court in the case of Pr.CIT vs. Alidhara Taxspin Engineers Etc.,(supra). Therefore, there were no justification of Learned Pr.CIT to hold that assessee has claimed more than ordinary profit as exempt while making claim of deduction u/s.80IB(10) of the Income Tax Act. The supplementary partnership deed is already part of the record of the Revenue in preceding assessment years, therefore, there is no need to file copy of the same again and again in each year. Thus, the Assessing Officer correctly examined the issue in the light of the material available on record and in the light of judgment of the Hon'ble Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice has been given to assessee. The Assessing Officer has examined all the details at assessment stage in assessment year appeal as well as in preceding assessment years. Therefore, on identical facts, the Learned PCIT should not have taken a different view in proceedings u/s.263 of the Income Tax Act. Hon'ble Gujarat High Court in the case of CIT vs. Amit Corporation 81 CCH 69 in which it was held as under : "Tribunal was of opinion that, while framing original assessment, AO had carried out full inquiries and thereafter framed assessment. Tribunal, therefore, observed that, order of AO could not have been categorized as erroneous on grounds stated by CIT. Tribunal committed no error. When, during course of framing of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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