TaxTMI 
TaxTMI 
2013 (12) TMI 1557
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....n was processed under sec. 143(1) of the Act on 17.3.2010. The case was selected for scrutiny assessment and a notice under sec. 143(2) dated 03.8.2009 was issued and served upon the assessee. A questionnaire dated 18.5.2010 was issued to the assessee along with notice under sec. 142(1) of the Act. In response to the notices, the authorized representative of the assessee appeared before the Assessing Officer and submitted the necessary details from time to time. Learned Assessing Officer has passed the assessment order under sec. 143(3) on 29.2.2010. 3. There were number of issues which were scrutinized by the learned Assessing Officer in the assessment order but for the purpose of present appeal, we are concerned with the issue pertaining to grant of deduction under sec. 80IAB of the Act. 4. The brief facts of the case as emerging from the record are that in order to achieve the objects of organized infra-structural development in the country, Government of India has enacted Special Economic Zone Act, 2005. The Act provides different incentives to the developers of various SEZ in the country, one of the benefits amongst others is to grant deductions under sec. 80IAB of the A....
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....) the claim of deduction u/s 80IAB has been made in respect of receipt on account of sale of bareshell buildings, constructed on SEZ land by the assessee, to M/s. DLF Assets Ltd. with whom a co-developer agreement has been signed by the assessee. (c) though section 80IAB provides for deduction from the activity of developing, operating and maintaining SEZ, the assessee has wrongly claimed such deduction on the receipt of sale of bare shell buildings, which cannot be equated with the activity of developing, operating and maintaining SEZ. (d) sale of building is not one of authorized operations in the SEZ as per the notification dated 27th October, 2006 issued by the Ministry of Commerce and Industry, Govt. of India. (e) the co-developer agreement between M/s. DLF Commercial Developers Ltd. (i.e. assessee ) and M/s. DLF Assets Pvt. Ltd. was considered by the SEZ Board of Approval (BoA) on 23.02.2009 and 19.06.2009. While considering the agreement, the representative of the Department of Revenue (DoR) pointed out that "the co-developer agreement refers to transfer and hand over deeds which states that co-developer shall be the owner of the SEZ buildings on payment of d....
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...., assessee had appeared and submitted its reply. Learned CIT has extracted the brief summary of the reply in impugned order and thereafter set aside the assessment order by recording a brief findings, it is imperative upon us to take note of the findings which read as under: "6. As enumerated above the assessee company is a developer of SEZ, during the year claimed deduction u/s. 80IAB on the development income receipt from the co-developer which is also a company of same group. Deduction u/s. 80IAB amounting to Rs. 573,94,33,765 was allowed by the A.O. on the basis of accounting method followed by the assessee, relevant provisions of SEZ including provision of Income Tax Act and after examining taxability of the "development income" claimed exempt by the assessee company. Section 80IAB of the IT Act inserted by SEZ Act gives assessee deduction of 100% of profit and gains derived from the business of developing SEZ. This deduction is available for 10 consecutive assessment year and this deduction is also allowable to the co-developer on transfer collaboration and maintenance of SEZ for remaining period of 10 consecutive assessment years. Thus section 80IAB clearly refers to e....
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....ins. On examination of the assessment records for the A.Y. 2008-09, it is seen that the A.O. has allowed the deduction u/s. 80IAB wrongly without considering the above facts so as to render the assessment order not only erroneous but also prejudicial to the interest of revenue. Hence, the assessment is set aside on this limited issue to be reframed by the A.O. after considering the above facts and after giving the assessee opportunity of being heard. Sd./- (Haramohan Barman) Commissioner of Income-tax, Delhi-IV, New Delhi." 8. The learned counsel for the assessee while impugning the order of Learned Commissioner has contended that an identical issue was involved in the case of DLF Infocity Developers vs. ACIT, Gurgaon. In that case also, Learned Commissioner has passed an order on 29.3.2012 under sec. 263 of the Act for assessment year 2007-08 and set aside the allowance of deduction under sec. 80IAB of the Act. He pointed out that all the arguments which are taken up by the assessee before the Learned Commissioner in the impugned order were also taken up in the case of DLF Infocity Developers vs. ACIT. This issue has been considered by the ITAT in ITA No. 2637....
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....l for the assessee further submitted that in the show-cause notice issued under sec. 263 of the Income-tax Act, 1961, the Learned Commissioner had alleged that deduction under sec. 80IAB would be admissible from the activity of developing, operating and maintaining SEZ, the assessee has wrongly claimed such deduction on the receipt of sales of bare shell building which cannot be equated with the activity of developing, operating and maintaining SEZ. To this query, contention of the assessee was that role of developers in the SEZ has been demarcated in SEZ Act. The developers is the focal and integral part of SEZ and its involvement is continuous i.e. on going as long as the SEZ exists and is in operation. It is primarily responsible for development of infra-structural facilities and thereafter maintenance and operation of the same. The assessee did not walk away after the construction of bare shell but also created other infrastructural activities like internal rode, security post, compound wall, sewerage treatment plant, electricity, horticultural etc. The developers and co-developers are placed at the same pedestal in the SEZ Act. The subrule( 5) of Rule 11 of SEZ Act provides th....
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....t plant, sewage lines, storm water drains, water supply lines, affluent treatment plant and pipelines and other infrastructure for affluent treatment, master planning, horticulture, green belts, land scaping, vehicle parking blocks. These activities as mentioned above are authorized operations under the SEZ Act, SEZ Rules as amended. Ans. Yes, all these are authorized operations of the developer of a SEZ as approved by the Approval Committee/Board of Approval for SEZ. 6. The developer's business of development of SEZ also envisages transfer and handover of developed/constructed buildings (in whichever form such as bare shell/cold shell) against Development Charges/Development Consideration forming part of MOU/Agreement approved by BOA. These activities are authorized operations under SEZ Act and Rules as amended. Ans. Yes, all these are authorized operations of the developer of a SEZ as approved by the Approval Committee/Board of Approval. However, no sale is allowed in SEZ." 9. The Ministry thereafter issued one more clarification on 20.1.2011. The observations made in reply to Question No. 6 in the letter dated 18.1.2011 has been explained. In the letter dated 18.1....
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....us through the replies of the assessee submitted to the Assessing Officer available on page Nos. 384 to 396 of the paper book. He specifically drew our attention towards page No. 392 of the paper book and pointed out that copy of lease agreement dated 25.3.2008 entered into by the assessee company with M/s. DLF Assets Pvt. Ltd. was produced before the Assessing Officer. The assessee has recognized total lease income during the year at Rs. 3,78,22,654. The learned counsel for the assessee further pointed out it has not sold the land to the co-developers, because that isnot permissible under the SEZ Act. The developers can only lease land to the co-developers and can receive the land lease rentals. The bare shell office space can be transferred by a developer to the co-developer and in respect of which, consideration will be received by the developer. The co17 developers will further develop the bare shell office space into warm shell office space and lease it to different entities. The co-developers cannot shell office space to different entities. The co-developers would only receive lease rentals for leasing off office space which is subject to tax. The sale of bare shell building ....
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....al condition and gone through the record carefully. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analysed in detail various authoritative pronouncements including the decision of Hon'ble Supreme Court in the case of Malabar Industries 243 ITR 83 as well as Hon'ble Bombay High Court rendered in the case of Gabriel India Ltd. and has propounded the following broader principle to judge the action of CIT taken under section 263. "The fundamental principle which emerge from the above cases may be summarized below" The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled. Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous. If the order is passed without application of mind, such order will fall under the category of erroneous order. Every loss of revenue cannot be treated as prejudicial to the....
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....uto reported in 332 ITR 167 and CIT vs. Anil Kumar reported in 335 ITR page 1 has pointed out the distinction between lack of inquiry and inadequate inquiry. In case of no inquiry, Learned Commissioner can be justified to say that assessment order is erroneous because the Assessing Officer plays a role of investigator as well as adjudicator. He is duty bound to look into the details, verify them and then adjudicate. Learned Commissioner has observed in his order that Assessing Officer failed to conduct proper inquiry. The expression "proper inquiry" is a very subjective and vague term, it depends upon each adjudicator, what is a proper inquiry. In the impugned order, Learned Commissioner has not referred any particular fact; had that been considered then result could be different. We could appreciate the stand of the revenue, if Learned Commissioner had pointed out the particular facts whose non-investigation by the Learned Assessing Officer, goad him on wrong conclusion. Learned Assessing Officer has enquired about the overhead expenditure, he has reduced the claim of the assessee, this suggests that he was aware about the claim of deduction under sec. 80IAB. The allegations by th....
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....or deduction subject to fulfillment of conditions in sub-section (5) and (7) to (12) of sec. 80IA of the Income-tax Act, 1961. As far as fulfillment of conditions with regard to provisions of sub-section (5) and (7) to (12) of sec. 80IA is concerned, Learned Commissioner has not raised any dispute. Sub-section (5) of sec. 80-IA puts certain restrictions on the quantum of admissible deduction. This aspect has been examined by the Assessing Officer while dealing with allocation of proportionate overheads expenses. Sub-section (7) talks of submission of reports in form No. 10CCB which is not in dispute. Sub-section (8) talks of transfer of service at arm's length price, so that any assessee would not claim excess deduction. This exercise has also been carried out by the Assessing Officer and no dispute has been raised. Sub-section 80(a) again restrict the quantum of deduction available where profits of the undertaking or enterprises have been claimed as deduction under this section. Since no deduction was claimed under any other section of this chapter, therefore, according to the assessee, this section is not applicable. Sub-section (10) empowers the Assessing Officer to reduce the q....
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....ate inquiry: 6.13. It is pleaded by ld counsel that the assessment record, notice u/s 143(2), 142(1), questionnaire, pleadings, submissions and assessment order all together clearly demonstrate that requisite enquiries were conducted by AO while allowing the assessees claim u/s 80IAB. Assuming but not admitting in worst scenario CIT may assume that inadequate inquiries were conducted. On this count also Hon'ble Delhi High Court has repeatedly held that revisionary powers u/s 263 cannot be exercised if CIT is of the view inquiries made by AO were inadequate. Reliance is placed on (i) CIT vs. Sunbeam Auto Ltd. 332 ITR 167 (Del.) In the case of CIT vs. Sunbeam Auto Ltd., it was held by Hon'ble High Court of Delhi that where the A.O. had made an enquiry before completion of assessment, the same could not be set aside for reason of 'inadequate' enquiry. The AO had called for reasons/ explanation and had decided after considering the explanation filed. There was no lack of enquiry. The Order of CIT under section 263 was invalid, since AO had taken a possible view. (ii) CIT vs. Honda Siel Power Products Ltd. 235 CTR 336 (Del.) In the case of CIT vs. Honda Siel Power ....
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....and adequacy of enquiries is unsustainable and contrary to authority of law and the same is directly contrary to the law laid down by the said two Hon'ble Supreme Court judgments in the case of Malabar Industrial Company Ltd. vs. CIT, CIT vs. Max India Ltd and other Delhi high court judgments on these issues (supra). 6.14. The entire transaction i.e. activity of transfer of bare shell buildings by developer to co developer including the documentation of the same has been approved by BOA under SEZ Act. In such circumstances there is no scope for presuming that such activity is not an authorized activity. Consequently, the interest of revenue as expressed by BOA while approving the co developers agreement has been taken care of by assessing officer by examining the allow ability of deduction u/s 80IAB of the Income-tax Act. It is not open to the CIT under section 263, to sit in judgment on the valid view as to whether the transfer of bare shell building in SEZ for a development consideration is an authorized operation or not as long as it is approved by the BOA and duly enquired by AO. Such powers are vested exclusively, lawfully and solely with the Board of approvals (BOA) under ....
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....he assessee has not sold the land in favour of the co-developer as wrongly alleged by CIT. As the record demonstrates assessee only leased out the bare shell buildings in favour of co-developer. The transfer or the leasing of bare shell buildings comes within the purview of authorized activities and the co-developer agreement having been approved by the BOA, the income tax authorities have to allow the deduction u/s 80-IAB. As per the settled propositions of law in case BOA are appointed by the Central Government in various fields of giving benefits like SEZ, Customs and various other fiscal legislation, the income-tax authorities cannot sit over the judgment of the BOA. By catena of judgments the courts have held that the approvals accorded by such regulatory boards in development schemes cannot be questioned by tax authorities. Reliance in this behalf is placed on: - Apollo Tyres Vs. CIT (2002) 9 SCC 1 (SC); - Malayala Manorama Co. Ltd. vs. CIT (2008) 12 SCC 612 (SC) - CIT v. HCL Commet System & Services Ltd. 305 ITR 409 (SC); - Marmo Classic Vs. Commissioner of Customs [2002(143) ELT 153 (Trib. Mumbai)] affirmed by Hon'ble Supreme Court in [2003(152) ELT A85 (SC)]; ....
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....re shell buildings on lease. Therefore, there is no error as pointed out by ld. CIT. (iv) The assessing officer has conducted proper inquiries which is evident from proceedings sheets; letters; questionnaire; assessee's response and detailed notes submitted on eligibility u/s 80-IAB. Thus assessing officer's order is neither erroneous nor prejudicial to the interests of revenue. 6.21. In view of these facts and circumstances it is pleaded by ld counsel that the impugned 263 order passed by the CIT may be quashed. 7. Ld. CIT (DR), on the other hand, supported the order of CIT u/s 263 and contends as under: (i) The assessing officer's order is very short and does not spell out any reason for allowing relief to the assessee. (ii) The record does not reflect that proper inquiries were conducted, except a casual reference to his being satisfied about the assessee's eligibility to claim u/s 80-IAB. (iii) The clarifications issued by BOA subsequent to the assessment proceedings were not part of the record and were not before the assessing officer and have no relevant. (iv) Therefore there is no error in direction given by the CIT to assessing officer to veri....
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....sion. 8.1. The judgment mandates that the assessee must be called, his explanation sought for and examined by the Commissioner and if, on the other hand, the Commissioner is satisfied, after hearing the assessee, that the order is not erroneous and prejudicial to the interest of the revenue, he has an option not to exercise his power of revision. In this case the BOA clarified the transfer and co-developer agreement to be an authorized activity, referring to the documents already filed with assessing officer. These clarifications are relevant. In view of Hon'ble Delhi High Court judgment in the case of Vikas Polymers, CIT ought to have considered them along with written submissions, assessing officer's report and record. After due consideration thereof and application of mind, power u/s 263 should have been exercised. 8.2. This is for the reason that if a query is raised during the course of scrutiny by the assessing officer, which was answered to the satisfaction of the assessing officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the assessing officer called for ....
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....r having considered all these pleading and submissions, it cannot be held that he did not examine the allowability of the claim by proper inquiry. Therefore, we do not find any substance in this finding. Thus, in our considered view the assessment neither suffers from the lack of inquiry nor any error on this count. 9.1. The Hon'ble Delhi High Court in the case of Anil Kumar Sharma (supra), makes a difference between lack of inquiry and inadequate inquiry. In any case this is not a case of lack of inquiry. The order does not become erroneous only because the CIT in his view holds that inadequate inquiries, were conducted. More particularly, in this case, where the CIT himself admits that he is not able to consider the material available on record due to lack of time. 9.2. Apropos lack of time, it is observed that we find no fault attributable to assessee for causing hiatus to the proceedings. Assessee's detailed reply covering all the aspects was filed as back as 25-7-2011 i.e. 8 months prior to the proceedings. The CIT himself called the assessing officer in hearing and asked him to submit a report and ensure that the report is filed. Non-seeking of assessing officer's....
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....imited i.e. whether 80-IAB claim was considered by the assessing officer or not. We have already held that it clearly emerges from assessment record that relevant queries were raised by assessing officer, detailed submissions, developers and co-developers agreements were filed, justification of 80-IAB claim as provided by the assessee and the nature of debts owed by DLF Assets consequent to such transfer was also asked for by assessing officer. In our considered view, the ratio of this judgment also does not apply to assessee's case. (iii) CIT Vs. Harsh J. Punjabi (2012) 345 ITR 451 (Del.) - In this case the issue pertains to inquiry into the allowability of commission of Rs. 3.33 crorres debited to the P&L A/c. No bifurcation of commission about Chennai and Gurgaon unit by assessee, though the commission was paid to the same parties. Both the units were eligible for 10A deduction separately. Since the bifurcation of expenditure relatable to respective units was not made, it was held that assessing officer's order was erroneous and prejudicial to the interests of Revenue. This case also will not be applicable to assessee's case inasmuch as the issue of any bifurcation of comm....
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....e quashed. 9.7. Our views on all other observations are also fortified by the case laws mentioned above, which we respectfully follow. 9.8. In view of the circumstances mentioned above, we quash 263 order passed by the CIT and allow the assessee's appeal. 10. In the result, assessee's appeal is allowed. Issue about lack of enquiry and inadequate inquiry: 6.13. It is pleaded by ld counsel that the assessment record, notice u/s 143(2), 142(1), questionnaire, pleadings, submissions and assessment order all together clearly demonstrate that requisite enquiries were conducted by AO while allowing the assessees claim u/s 80IAB. Assuming but not admitting in worst scenario CIT may assume that inadequate inquiries were conducted. On this count also Hon'ble Delhi High Court has repeatedly held that revisionary powers u/s 263 cannot be exercised if CIT is of the view inquiries made by AO were inadequate. Reliance is placed on (i) CIT vs. Sunbeam Auto Ltd. 332 ITR 167 (Del.) In the case of CIT vs. Sunbeam Auto Ltd., it was held by Hon'ble High Court of Delhi that where the A.O. had made an enquiry before completion of assessment, the same could not be set aside for re....
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....s case the Hon'ble Bench held that where there is due enquiry by the assessing officer ,though it has been considered to be inadequate by the CIT, recourse u/s 263 cannot be made. Accordingly, it is submitted that the initiation of revision proceedings under Section 263 of the IT Act being to take another possible view about allowability of deduction and adequacy of enquiries is unsustainable and contrary to authority of law and the same is directly contrary to the law laid down by the said two Hon'ble Supreme Court judgments in the case of Malabar Industrial Company Ltd. vs. CIT, CIT vs. Max India Ltd and other Delhi high court judgments on these issues (supra). 6.14. The entire transaction i.e. activity of transfer of bare shell buildings by developer to co developer including the documentation of the same has been approved by BOA under SEZ Act. In such circumstances there is no scope for presuming that such activity is not an authorized activity. Consequently, the interest of revenue as expressed by BOA while approving the co developers agreement has been taken care of by assessing officer by examining the allow ability of deduction u/s 80IAB of the Income-tax Act. It is n....
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....e Commissioner of Income-tax exercising the power of revision under the Act cannot have any jurisdiction to question the validity or the legality of the authorized operations which have been approved by the Regulatory body of the Central Government i.e. BOA and attempt to dispute the same is contrary to the statutory provisions of the SEZ Act. 6.17. The assessee has not sold the land in favour of the co-developer as wrongly alleged by CIT. As the record demonstrates assessee only leased out the bare shell buildings in favour of co-developer. The transfer or the leasing of bare shell buildings comes within the purview of authorized activities and the co-developer agreement having been approved by the BOA, the income tax authorities have to allow the deduction u/s 80-IAB. As per the settled propositions of law in case BOA are appointed by the Central Government in various fields of giving benefits like SEZ, Customs and various other fiscal legislation, the income-tax authorities cannot sit over the judgment of the BOA. By catena of judgments the courts have held that the approvals accorded by such regulatory boards in development schemes cannot be questioned by tax authorit....
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....ration of the material, thus the order u/s 263 is bad in law. (vi) The assessee's agreement with co-developer is approved by the BOA. The activity of transferring bare shell buildings is only an authorized activity as certified by the BOA itself and the annexure attached to the notification. (vii) The assessee has not sold any land but only transferred the bare shell buildings on lease. Therefore, there is no error as pointed out by ld. CIT. (viii) The assessing officer has conducted proper inquiries which is evident from proceedings sheets; letters; questionnaire; assessee's response and detailed notes submitted on eligibility u/s 80-IAB. Thus assessing officer's order is neither erroneous nor prejudicial to the interests of revenue. 6.21. In view of these facts and circumstances it is pleaded by ld counsel that the impugned 263 order passed by the CIT may be quashed. 7. Ld. CIT (DR), on the other hand, supported the order of CIT u/s 263 and contends as under: (v) The assessing officer's order is very short and does not spell out any reason for allowing relief to the assessee. (vi) The record does not reflect that proper inquiries were conducted, exc....
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....hereafter if the Commissioner still feels that the order is erroneous and prejudicial to the interest of the revenue, the Commissioner may pass revisional orders. If, on the other hand, the Commissioner is satisfied, after hearing the assessee, that the orders are not erroneous and prejudicial to the interest of the revenue, he may choose not to exercise his power of revision. 8.1. The judgment mandates that the assessee must be called, his explanation sought for and examined by the Commissioner and if, on the other hand, the Commissioner is satisfied, after hearing the assessee, that the order is not erroneous and prejudicial to the interest of the revenue, he has an option not to exercise his power of revision. In this case the BOA clarified the transfer and co-developer agreement to be an authorized activity, referring to the documents already filed with assessing officer. These clarifications are relevant. In view of Hon'ble Delhi High Court judgment in the case of Vikas Polymers, CIT ought to have considered them along with written submissions, assessing officer's report and record. After due consideration thereof and application of mind, power u/s 263 should have been e....
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....cated. Besides, we may hasten to add that apparently this rider appear to be made while approving the co-developer agreement. This is possibly applicable to co-developer and not the assessee as the condition was put during the course of approval of the agreement between assessee and the co-developer. Be that as it may, in any case, the assessing officer having considered all these pleading and submissions, it cannot be held that he did not examine the allowability of the claim by proper inquiry. Therefore, we do not find any substance in this finding. Thus, in our considered view the assessment neither suffers from the lack of inquiry nor any error on this count. 9.1. The Hon'ble Delhi High Court in the case of Anil Kumar Sharma (supra), makes a difference between lack of inquiry and inadequate inquiry. In any case this is not a case of lack of inquiry. The order does not become erroneous only because the CIT in his view holds that inadequate inquiries, were conducted. More particularly, in this case, where the CIT himself admits that he is not able to consider the material available on record due to lack of time. 9.2. Apropos lack of time, it is observed that we find n....
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....e bifurcation of figures of interest. This judgment refers to a different set of facts and partly sets aside the revision to CIT with further conditions and as the ITAT's consideration of bifurcation at appellate level was found to be not appropriate. In contradistinction, in the case before us there are no such complex issues. The issue is limited i.e. whether 80-IAB claim was considered by the assessing officer or not. We have already held that it clearly emerges from assessment record that relevant queries were raised by assessing officer, detailed submissions, developers and co-developers agreements were filed, justification of 80-IAB claim as provided by the assessee and the nature of debts owed by DLF Assets consequent to such transfer was also asked for by assessing officer. In our considered view, the ratio of this judgment also does not apply to assessee's case. (vi) CIT Vs. Harsh J. Punjabi (2012) 345 ITR 451 (Del.) - In this case the issue pertains to inquiry into the allowability of commission of Rs. 3.33 crorres debited to the P&L A/c. No bifurcation of commission about Chennai and Gurgaon unit by assessee, though the commission was paid to the same parties. Both....