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TMI Blog2023 (8) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... initial year was withdrawn and hence the Order dated February 06, 2018 passed under Section 263 of the Act by the Commissioner was illegal and liable to be set aside? ii) Whether the Learned Tribunal was justified in holding that the order of the Commissioner of Income Tax who held the assessment Order dated March 28, 2016 passed by the Assessing Officer under Section 143(3) of the Act is erroneous and prejudicial to the interest of revenue on the ground of lack of proper enquiry for want of submissions of Form 10CCB for the Assessment Year 2013-14 without considering the aspect that the said Assessment Year 2013- 14 was the 2nd year of substantial expansion and there was no dispute with respect to the initial year of substantial expansion being Assessment Year 2012-13? iii) Whether the Learned Tribunal was justified in upholding the orders passed by the Commissioner of Income Tax under Section 263 of the Act? iv) Whether the Learned Tribunal was justified in law in ignoring that the order under Section 263 of the Act was passed beyond the scope of the notice under Section 263 of the Act? 2. We have heard Mr. J.P. Khaitan, learned Senior Advocate assisted by Mr. Saurabh Bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the allegation that the assessee did not file Form 10CCB in the course of assessment proceedings, it was submitted that the said Form was not called for by the Assessing Officer, however, the assessee enclosed Form 10CCB for the Assessment Year 2013-14 along with their reply to the show-cause notice. Further, it was pointed out that the date of substantial expansion mentioned in Forms 10CCB was February 13, 2012 and the relevant Financial Year was 2011-12 and the Assessment Year 2012-13. The assessee also enclosed all relevant documents relating to the substantial expansion done during the Assessment Year 2012-13, Form 10CCB for the Assessment Year 2012-13 being the initial year of substantial expansion was also submitted along with the reply to the show-cause notice. The assessee pointed out that in the initial year of substantial expansion, AY 2012-13 the Assessing Officer had accepted the substantial expansion and completed the assessment under Section 143(3) after giving 100% deduction and the same is not in dispute. The assessee also enclosed the copy of the assessment order for the Year 2012-13. Further, the assessee pointed out that the Assessing officer had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer issued notice dated November 18, 2013 under Section 142(1) of the Act. The notice contains a questionnaire contained as many as 23 queries of which Query No. 21 directs the assessee to furnish details with supporting evidence in respect of claim under Chapter VIA of the Act. The assessee by reply dated 03.07.2014 furnished the required details and also enclosed the copy of the 80IC Certificate and copy of 80J Certificate. The certificate issued by the department of Industries, Government of Himachal Pradesh and other connected records were also enclosed along with the reply. A declaration filed by the Chartered Accountant along with the Form 10CCB was also furnished wherein paragraph in Serial No. 25 the date of substantial expansion has been mentioned as February 13, 2012, the total book value of plant and machinery (before taking depreciation in any order) as on first day of previous year in which substantial expansion took place was shown as Rs. 34,51,527.69/-. The value of increase in the plant and machinery in the year of substantial expansion was mentioned as Rs. 32,55,178.54/-. In Serial No. 30 of the said Form the deduction claimed under Section 80IC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has allowed excess depreciation. It was contended that though the PCIT stated that 100% deduction could not be given as Form 10CCB was not filed agreed that 30% deduction can be given even though Form 10CCB was not filed. The assessee specifically pointed out that along with the reply to the show cause notice, they had filed Form 10CCB before the PCIT and the PCIT has not even referred to the said Form nor dealt with the submissions made by the assessee in that regard. Further the assessee submitted that before granting 100% deduction for the assessment year 2012-2013, being the first year of substantial expansion and the 6th year, the assessing officer had made detailed enquiry and thereafter accepted the claim of the assessee. Before completing the assessment, notice dated November 18, 2013 was issued under Section 142(1) of the Act to which the assessee submitted their reply dated July 03, 2014 enclosing all relevant documents, thereafter another show cause notice was issued on March 10, 2015 for which the assessee submitted their reply dated March 15, 2015 enclosing all the requisite documents and after thorough enquiry and being satisfied that the claim of deduction was genu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een already once granted. 9. In Commissioner of Income Tax Versus Paul Brothers (1995) 216 ITR 548 (Bom), it was held that either in Section 80HH or in Section 80J, there is no provision for withdrawal of special deduction for the subsequent years for breach of certain conditions unless the relief granted for the assessment year earlier was withdrawn and the income tax officer could not have withheld the relief for the subsequent years. 10. In Commissioner of Income Tax Versus Delhi Press Patra Prakashan Limited (2013) 355 ITR 14 (Delhi) one of the questions which fell for consideration was whether it was open for the assessing officer to deny the benefit of Section 80I of the Act to the assessee having allowed the benefit to the assessee in the preceding three years. The Hon'ble Division Bench held by virtue of Section 80I (5) of the Act deduction under Section 80I of the Act is available to the assessee in respect of the assessment year referred to as the initial assessment year, relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles of things. It was further held that the such deduction is also available for the 7th assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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