TaxTMI 
TaxTMI 
2018 (11) TMI 784
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.... law, the learned A.O. after having considered/examined the various letters/sanctions/permissions issued by the government authorities have accepted the claim of the assessee u/s.801B(10), the acceptance of the said claim by the A.O. is in accordance with the directions of the Appellate Tribunal. The findings of the learned Pr. CIT, that the A.O. has allowed the claim without conducting the enquiries are wholly wrong injudicious and unlawful and, therefore, all such findings be quashed and it be held that the order passed by the A.O. on 31.03.2014 u/s.143(3)/254 is neither erroneous nor prejudicial to the interest of revenue and hence, the order passed u/s.263 be quashed. (3) That on the facts & in the circumstances of the case and in law, at any event, the order passed u/s.263 by the learned Pr. CIT is bad in law and be quashed." 2. Briefly stated facts are that original assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter called as 'the Act') was made vide order dated 27.11.2009. The A.O. disallowed claim of the assessee of deduction u/s 80IB(10) of the Act. The matter travelled up to the Tribunal and the Tribunal was pleased to set aside the issue of claim of deduct....
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.... basis of physical verification of the site carried out by it in February 2008. [PB 4-5] 5. Ld. AO noted in the order u/s 143(3) rws 254 at Para 1.3 - "...............On verification of clarification letter dated 29.03.2014 issued b Bhopal Municipal Corporation, it is found that entire project of the assessee was completed within stipulated period is found correct. Hence claim of the assessee u/s 801B(10) is considered and allowed deduction u/s 1,11,55,537/-." [emphasis supplied] [PB 4- 5] 6. It is evident from above that Ld. AO had all the relevant material on record, especially the latest confirmation letter dated 29.03.2014 from the office of Bhopal Municipal Corporation which confirmed that its earlier letter 275 dated 12.11.2009 was issued on the basis of physical verification of the site carried out by it in February 2008. 7. It was only after getting an assurance that physical verification of the site was carried out by the competent authority viz. Bhopal Municipal Corporation, before issuing the completion certificate, that Ld. AO took the most plausible view on the correctness of the claim of the assessee firm u/s 801B(10) and allowed its deduction. Direction given....
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....ted 12.11.2009 was issued on the basis of spot inspection carried out in the month of February 2008. The AO has not even ascertained the genuineness of the letter.................... The said letter is issued from the office of Municipal Corporation, Bhopal who is a competent authority for the issue under consideration. [PB 04-05] Ld. Pr CIT himself did not carry out any exercise to prove that the said letter is not genuine. There is nothing brought on record to demonstrate that the said letter from a Local Government Authority is not genuine. Such a bald allegation is unwarranted and highly objected upon. 14. Section 263 of the Act mandates the Pr. CIT to examine the records and make such enquiry and thereafter on the basis of his examination of records and enquiry come to conclusion whether the order was passed by AO without making enquiries or verification which would have been made resulting the order passed by the AO erroneous in so far as it is prejudicial to the interest of revenue. Clause (b) to Explanation 1 of section 263 states that "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available a....
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....ese two conditions are not met, the provisions of section 263 cannot be invoked. In the instant case, in view of the facts and circumstances of the case and submission elicited herein above, it may be appreciated that the Assessment Order passed by the Ld. AO u/s 143(3) rws 254 is neither erroneous nor prejudicial to the interest of the revenue and therefore the Ld. Pr CIT was not justified in assuming the jurisdiction u/s 263 of the Act in the instant case. Reliance is placed on following judicial pronouncements: (i) CIT vs. Gabriel India Ltd. (1993) 203 ITR 108 (Bom.) (ii) H.H. Maharaja Raja Pawar Dewas vs. CIT (1982) 138 ITR 518 (MP) (iii) CIT vs. Associate Food Products Pvt. Ltd. (2006) 5 ITJ 299 (Indore Trib) (iv) CIT vs. Fr. Mullers Charitable Institutions (2014) 363 ITR 0230 (Kar.) (v) CIT vs. Himachal Pradesh State Industrial Development Corporation Ltd. (2015) 274 CTR 398 (HP) b. Impugned order passed by Ld. AO is not erroneous In view of the facts and circumstances of the case, as set out herein above, it would be appreciated that the impugned order so passed by the Ld. AO is not erroneous and therefore, there was no justification for the Ld. Pr CIT in invok....
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....d that entire project of the assessee was completed within stipulated period is found correct. Accordingly, there was no lapse on the part of Ld. AO in conducting the necessary enquiry on the issue. Thus, the observation of Ld. Pr CIT that the AO has not examined the facts of the case properly is patently wrong. e. Appellant brought on record all the material and evidences relating to the concerning issue and the same were duly verified by the Ld. AO with proper application of mind Appellant, vide letter dated 20-01-2014 furnished a detailed reply along with the necessary documentary evidences. Through this reply, all the necessary regulatory compliances which were accomplished with the Competent Authority were placed on record. Ld. AO confirmed the same by stating its fact in the assessment order at Para 1.2 and Para 1.3. Ld. AO had gone through the reply and documentary evidences adduced by the appellant cautiously and consciously by applying his mind. It is a settled law that if an assessing officer forms a particular view on any issue, after making detailed enquiry and after applying his mind, then such opinion of the AO cannot be reviewed by any higher authority unde....