TMI Blog2019 (5) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer is unsustainable in Law. We rely upon the judgment of the Supreme Court in the case of CIT Vs. Max India Ltd. [ 2007 (11) TMI 12 - SUPREME COURT] In the present case, all the records of the construction of the project were available to the Assessing Officer not only in assessment year under appeal but in preceding assessment years as well. Therefore, while framing the assessment, the Assessing Officer had access to all the records of the assessee and when Assessing Officer after perusing the record passed the assessment order in favour of the assessee granting deduction u/s.80IB of the Act, the same could not be treated as erroneous and prejudicial to the interest of the Revenue. It is well settled law that principle of consistency apply to the Income Tax proceedings. Therefore, on same set of facts, the Learned Pr.CIT should not have taken a different view in the matter. We, therefore do not find any error in the assessment order so as to revise u/s.263 of the Income Tax Act. There were no justification for Learned Pr.CIT to invoke to jurisdiction u/s.263, we accordingly set-aside the order u/s.263 of the Income Tax Act and restore the order of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt. Therefore, the provisions of section 80IB(13) r.w.s 80IA(10) of the Income Tax Act are violated by the assessee. The learned Principal Commissioner of Income Tax(Pr.CIT), therefore noted that assessment order is erroneous and prejudicial to the interest of Revenue. Show cause notice was issued to the assessee calling explanation of the assessee. 3. The reply of the assessee is reproduced in the impugned order in which the assessee explained that the partnership deed does not provide for any payment of interest on partner s capital, but there is 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 remun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is filed at pages 12 to 15 of the paper book which gives complete details of the residential project and deduction claimed u/s.80IB of the Income Tax Act. During the assessment proceedings, the Assessing Officer called for various details and in response to the same the assessee firm submitted the requisite details and on going through the same the Assessing Officer was satisfied with the books of accounts and details submitted on record and granted deduction 80IB of the Act. The assessee also learnt that there was an audit object on the same line, however it has been dropped. The partnership deed does not provide for payment of interest on partner s capital and issue is covered by the judgment of the Hon'ble Gujarat High Court referred to above. 6. Since all the details and records have been filed online, therefore the claim of assessee cannot be disputed. PB 6 - 7 is show cause notice in which issue of area of flat has not been raised. PB-19 20 is supplementary partnership deed dated 15.08.2007 whereby it is provided that no interest shall be paid on capital contributed by the partners. PB120 is copy of the judgment of Hon'ble Gujarat High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In assessment year 2009-10 the Assessing Officer similarly accepted the claim of assessee. In assessment year 2015-16 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 Gujarat High Court. This issue is therefore decided in favour of the assessee. 9. As regards, the issue of claim of deduction made u/s.80IB of the Act, the assessee has explained that copy of Form No.10CCB was filed online along with complete details. The details of the project were also filed, copies of which are filed in the pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have taken a different view against the assessee. Unless the view taken by the Assessing Officer is unsustainable in Law. We rely upon the judgment of the Supreme Court in the case of CIT Vs. Max India Ltd. 295 ITR 282. 10. In the present case, all the records of the construction of the project were available to the Assessing Officer not only in assessment year under appeal but in preceding assessment years as well. Therefore, while framing the assessment, the Assessing Officer had access to all the records of the assessee and when Assessing Officer after perusing the record passed the assessment order in favour of the assessee granting deduction u/s.80IB of the Act, the same could not be treated as erroneous and prejudicial to the interest of the Revenue. It is well settled law that principle of consistency apply to the Income Tax proceedings. Therefore, on same set of facts, the Learned Pr.CIT should not have taken a different view in the matter. We, therefore do not find any error in the assessment order so as to revise u/s.263 of the Income Tax Act. There were no justification for Learned Pr.CIT to invoke to jurisdiction u/s.263 of the Income Tax Act, we accordingly s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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