2018 (2) TMI 595

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....aw, since the conditions laid down in section 263 of the Act viz. namely, (i) the order of the assessing officer sought to be revised is erroneous; and (ii) it is prejudicial to the interest of the revenue, are not satisfied. It be held so now and order passed by the Hon'ble CIT-I, Baroda be quashed. 2) The action of the Hon'ble CIT-I, Baroda is not justified, since all the issues involved are highly debatable. Therefore the action of Hon'ble CIT-I, Baroda is unjust and uncalled for. It be held so now and the order passed by Hon'ble CIT-I, Baroda be cancelled. 3) The Hon'ble CIT-I, Baroda has erred in setting aside all the issues involved in the order passed u/s 263 of the Act and directing the AO to pass the fresh....

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....d hence the direction given by the Hon'ble CIT-I, Baroda is unjust and uncalled for. It be held so now and the direction given by Hon'ble CIT-I, Baroda be cancelled. 3. To adjudicate on this appeal, only a few material facts need to be taken note of. The assessment under section 143(3) was completed on 30.12.2011. Subsequently, however, the Commissioner invoked his revision powers under section 263 on the two points (i.e. additional depreciation on windmill and verification with respect to claim of expenditure) and the relevant directions of the learned Commissioner were as follows:- "3. I have considered the submission of the assessee and also the facts available on record. In respect of claim of additional of Rs. 38,62,288/- o....

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....Ltd. It is apparent that the Assessing Officer had not considered the implications of the amendment brought in section 32(1)(iia) as noted above. It is, therefore, held that the order passed by the Assessing Officer was erroneous as well as prejudicial to the interest of Revenue. .... ..... 7. In respect of excess claim of Rs. 68,02,000/- it has been contended that these amounts were in the nature of business expenditure and not donations and therefore, proposed disallowance is not justified. The assessee has not however explained as to how these are business expenditure. Since the order is being set aside on other issues, this issue is also set aside and the Assessing Officer is directed to examine the nature of these payments as ....

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....e requirement of fulfilling the conditions of expansion in installed capacity has been dispensed with. Under this factual position, we do not find any reason to interfere in the order of Ld. CIT(A) on this issue. This ground of the revenue is rejected." 7. The above contentions are duly noted at page nos. 3 & 4 of the impugned order, and yet the learned Commissioner has proceeded to treat the order passed by the Assessing Officer as erroneous and prejudicial to the interest of the revenue. We are of the considered view that the course adopted by the Assessing Officer, which is unambiguously supported by a binding judicial precedent, cannot be said to be erroneous and prejudicial to the interest of the revenue. As noted by Hon'ble Supreme ....