TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 913
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....to be a substantial question of law : "Whether the Income Tax Appellate Tribunal has erred in law and on facts in setting aside the order passed under section 263 by the CIT under his revisionary powers?" 2. The assessment year is 2010-11. The assessee is a Company engaged in the development and operation and maintenance of Ports and Special Economic Zone, at Mundra. The assessee electronically filed its return of income for assessment year 2010-11 on 24.09.2010 declaring total income at Rs. 1,46,39,970/-. The case came to be selected for scrutiny and by an order dated 28.03.2013, the assessment came to be framed under section 143(3) of the Act whereby, the total income of the assessee was determined at Rs. 27,74,59,380/-. Subsequently,....
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....ice of the assessee to claim 10% of the opening written down value plus additions and the same has been allowed in earlier years and that section 35D of the Act had no role to play in respect of such deduction. As regards the depreciation on office equipments that was claimed at 15%, it was submitted that the office equipments were in the nature of "plant" and were covered within the block of assets, namely, "machinery and plant" and therefore, the assessee has rightly claimed the depreciation. With regard to the deduction claimed and allowed under section 35D of the Act, it was submitted that the preliminary expenses were incurred before the commencement of business and were deductible under clause (i) of section 35D(1) of the Act and the ....
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....ke such inquiry. Thus, when proper inquiry is not made, the order becomes erroneous. It was submitted that it is settled legal position that any order passed by the Assessing Officer without proper inquiry and investigation is erroneous and prejudicial to the interest of the revenue. Referring to the merits of the claim made by the assessee as had been allowed by the Assessing Officer, it was submitted that insofar as the claim for depreciation at the rate of 15% on office equipment is concerned, if in the earlier years, no inquiry was caused and the deduction was given without such inquiry, the Commissioner would not be estopped from invoking the jurisdiction under section 263 of the Act. As regards the claim of deduction of Rs. 3,75,48,72....
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.... prejudicial to the interest of revenue, unless the view taken by the Assessing Officer is unsustainable in law. The Tribunal has, thereafter, examined the merits of the findings recorded by the Assessing Officer as to whether the view adopted by the Assessing Officer is sustainable in law and has recorded thus: "15. On the merits on the issue of amortization of cost of lease hold land, we find on perusing the computation of total income, which is placed at page 27 to 30 of the paper book, that the claim of assessee of amortized value of leasehold land development was not u/s. 35D whereas ld. CIT in the order has held that the claim of assessee was u/s 35D and therefore in such a situation, A.O.'s order on that issue cannot be considered ....
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...., cannot be applied to the facts of the present case. In view of the aforesaid facts, we are of the view that ld. CIT was not justified in resorting to revisionary powers u/s 263 of the Act." 8. Thus, the Tribunal has, on the merits of the claims, found that the Commissioner (Appeals) has recorded that the claim of assessee of amortized value of leasehold land development was under section 35D, whereas the record of the case reveals that the claim of amortized value of leasehold land was not under section 35D and has, accordingly, found that the order of the Assessing Officer on this issue cannot be considered to be erroneous, more so, when there was no such claim under section 35D by the assessee. 9. As regards the claim for depreciatio....