2015 (4) TMI 105

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....31st October, 2004 declaring Nil income. The assessee had undertaken development and construction of residential project at Pune. The assessment was completed under section 143(3) of the Income Tax Act, 1961 on 14th November, 2006, after allowing deduction claimed under section 80IB(10) of the I.T. Act of Rs. 47,95,506/-. 3. The Commissioner of Income Tax-II, Pune, upon perusal of this order was of the view that the same is erroneous and prejudicial to the interest of the revenue. He, therefore, passed an order under section 263 of the I.T. Act on 27th February, 2009. The assessing officer gave effect to the directions of the Commissioner and disallowed the deduction under section 80IB(10) of the Act to the extent of Rs. 47,95,506/-. Tha....

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....isfied. Thus, it was a case of incorrect application of law by the assessing officer and that is how the Commissioner proceeded to exercise his powers. Mr.Gupta also invited our attention to the findings recorded by the Commissioner particularly in paragraphs 5.1, 5.2 and 6. He, therefore, submits that the law laid down in the case of Malabar Industrial Co. Ltd. V/s. Commissioner of Income Tax reported in (2000) 243 ITR 83, does not apply. 6. On the other hand, Mr.Naniwadekar in support of the order of the Tribunal submits that in the subsequent decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax V/s. Max India Ltd. reported in [2007] 295 ITR (SC) 282 wherein it has been clarified how if two views are poss....

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.... powers under section 263 of the I.T. Act. It was not open to the Commissioner then to have taken into consideration the same documents and to arrive at a different conclusion. The Tribunal has explained in paragraphs 11 & 12 of the impugned order that the view of the Tribunal in the case of Radhe Developers & Ors V/s. ITO (Ahmedabad Bench) and that of the Chennai Bench would denote as to how the issue raised before the Commissioner and prior thereto before the assessing officer is debatable. If there was a view on the issue taken by the Tribunal itself, then, the Commissioner cannot invoke powers under section 263 of the I.T. Act only to record a different view. 9. We are of the opinion that such finding of the Tribunal and being consis....