TaxTMI 
TaxTMI 
2016 (6) TMI 23
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.... under solid waste management system. In the original assessment order u/s 143(3) dated 26/12/2011, the claim u/s 80IA was reduced from Rs. 1,72,76,560/- to Rs. 1,66,73,315/- and a sum of Rs. 6,03,245/- was disallowed as deduction on the ground that other income was not eligible for deduction u/s 80IA of the Act. 3. The Ld. CIT, Hisar issued a shows cause notice to the assessee u/s 263(1) of the Act on 4/3/2014 to which the assessee responded in detail on 18/3/2014. However, the Ld. CIT set aside the assessment order holding it to be erroneous and prejudicial to the interest of the revenue and restored the matter to the file of the A.O for making a de novo assessment. The assessee is now in appeal before us and has raised the following grounds: "On the facts and in the circumstances of the case and in law the order u/s 263 (1) of the Income-tax Act, 1961 passed by the Commissioner of Income Tax, Hisar is devoid of jurisdiction as no error prejudicial to the interest of Revenue has been established and so must be quashed. 2. Additionally, the order u/s 263 of the Act proposing a redoing of the assessment merely on the basis of difference in opinion and holding t....
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....r income is not eligible for deduction. (iv) The AO has also mentioned that the tax is to be charged as per the provisions of MAT as the tax payable as per MAT is more that the tax payable as per normal provisions. (v) A proper tax calculation has been given by the AO in the Annexure to the order, which the Ld. CIT has also referred to in his order in Para 3.3.1. 6. The Ld. AR further submitted that in view of the above facts, it is clearly evident that the order passed by the AO was in no way prejudicial to the interest of the revenue as the tax payable had been calculated in a separate Annexure. It was submitted that merely because the AO has not elaborately discussed the claim of assessee, the same cannot be a ground for invoking the provisions of section 263. The Ld. AR submitted that despite considering the reply of the assessee on other issues and even after appreciating the said replies, the Ld. CIT directed the AO to make a fresh assessment in assessee's case, which is bad in the eyes of law and on facts. He submitted that this issue is squarely covered by the judgment of Hon'ble Jurisdictional High Court in the case of ITO v. D. G. Housing Projects Ltd....
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....the rent was paid for the space, but the CBWTFs were owned by the assessee itself. The Ld. AR further submitted that the assessee had also submitted the following evidences before the AO as well the Ld. CIT, which will further ensure that the assessee is eligible to claim the deduction u/s 80IA(4) of the Act. The said details are as under: * Authorisation for operating facility for (Collection Reception, storage, treatment, transport and Disposal of Bio Medical Wastes) under the Provision of Bio Medical Wastes Rules, 1988 Amended Rule, 2000 from Uttar Pradesh Pollution Control Board * Grant of Authorisation under Rule 8(4) of the Bio Medical Waste (Management and Handling) Rules, 1998 for the operating of facility for the collection, reception, treatment, storage, transportation and Disposal of the Bio Medical Waste from Haryana State Pollution Control Board * Agreement with General Hospital & Trauma Center * Agreement with Director Health Services for the period of ten years * An agreement with UP Health System Development Project for having or setting CTF at or around Lucknow 8. The Ld. AR submitted that the Ld. CIT has completely d....
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....urnished by the assessee to the A.O in this regard is found to be placed in pages 46 to 51 of the Paper Book. A perusal of the assessment order also shows that on Page 2, the A.O has specifically allowed the claim of deduction u/s 80IA after reducing it by Rs. 6,03,245/- on account of other income not being eligible for the claim of deduction. Therefore, it will be wrong to infer that there has been no application of mind by the A.O while considering the claim of the assessee although he might not have expressed it in terms of a lengthy discussion on the issue. The Hon'ble Delhi High Court in CIT vs. Sunbeam Auto Ltd 332 ITR 167 (Del) has opined in Para 17 of its order as under:- "17. We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under section 263 of the Income- tax Act. As noted above, the submission of learned counsel for the Revenue was that while passing the assessment order, the Assessing Officer did not consider this aspect specifically whether the expenditure in question was revenue or capit....
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....st be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. (See Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1 (SC) at page 10) . . From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Cases may be visualized where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimate himself. The Commi....
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.... enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under Section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question. 17. This distinction must be kept in mind by the CIT while exercising jurisdiction under Section 263 of the Act and in the absence of t....
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....en by the Assessing Officer is unsustainable in law. In such matters, the CIT must give a finding that the view taken by the Assessing Officer is unsustainable in law and, therefore, the order is erroneous. He must also show that prejudice is caused to the interest of the Revenue. " 12. Again, the Hon'ble Delhi High Court in CIT vs. Delhi Vs. New Delhi Television Ltd. 360 ITR (Del) held as under:- "18. In the present case, jurisdictional pre-conditions stipulated in Section 263 of the Act are not satisfied. The Assessing Officer did conduct investigation and accepted the claim under Section 80HHF on being satisfied that the conditions stipulated in the said Section are satisfied. It is not the case of "no investigation". It is also not a case where per-se further investigation was required. Commissioner in his order, as noticed above, has been tentative and hesitant and did not decide whether the claim under Section 80 HHF has been rightly allowed by the Assessing Officer. He has noted the stand of the respondent, before him and before the Assessing Officer, but refrained from forming any opinion as to whether the acceptance of the claim by the Assessing Officer was err....