TaxTMI 
TaxTMI 
2019 (11) TMI 34
X X X X Extracts X X X X
X X X X Extracts X X X X
....iating the submissions made by the Appellant before the Principal Commissioner of Income Tax, and accordingly, has erred in invoking the provision of section 263 and consequently set aside the assessment order passed on 26.03.2015 u/s.143(3) by the Assessing Officer. 2. Your Appellant prays to reserve the right to add, alter, amend and/or withdraw any of the above grounds of appeal. 2. The only issue raised by the assessee is that the Ld. CIT erred in holding that the order passed by the AO under section 143(3) of the Act is erroneous insofar prejudicial to the interest of Revenue. 3. The facts in brief as culled out from the order of the authorities below are that the assessee is a partnership firm and engaged in the business of developing of residential and commercial properties/complexes. The assessee is developing several projects including 2 projects namely Parshwanath Metro City(PMC) and Parshwanath Om Residency (POR), eligible for deduction under section 80IB(10) of the Act. The assessee declared its gross total income amounting to Rs. 21,05,15,019/- and claimed deduction of Rs. 20,25,82,362/- under section 80IB(10) of the Act. Thus the assessee declared total income in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt framed under section 143(3) of the Act. 5. The assessee in response to such notice submitted as under: a. In case of PMC Project The assessee claimed that it is eligible for the deduction under section 80IB(10) of the Act with respect to the completed units despite the fact that the entire project was not completed on or before 31st March 2012. The assessee in support of his contention also filed the details of the units sold and unsold till the assessment year 2012-13. The assessee also submitted that it has sold 144 units out of the total units of 349 units for which the BU permission was granted during the assessment year beginning from 2010-11, 2011-12 and 2012-13. Thus the units remained unsold are 204 units only. The assessee also claimed that its deduction is based on the auditor certificate issued in form No. 10CCB of the Act. b. In case of POR Project The assessee claimed that the permission granted vide order dated 27th October, 2010 should relate with the date of the application filed to GUDA i.e. 28-03-2007. The assessee also emphasized that the permission was granted by GUDA vide letter dated 30th March, 2007 with certain conditions which was subsequently com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nits on or before 31st March, 2012 than the number of units approved in the sanction plan. 6.2 The learned AR similarly submitted that the approval granted by the appropriate authority in respect of POR project dated 27th October, 2010 should relate with the date of application. 7. On the other hand the learned DR submitted that the project (PMC) was not completed within the time mandated under the provisions of section 80IB(10) of the Act. Similarly, the project (POR) was not approved by the appropriate authority on or before 31st March, 2007. 7.1 The learned DR also claimed that the assessee has not furnished the copies of the notice issued under section 142(1) of the Act. The learned DR vehemently supported the order of the learned CIT. 8. We have heard the rival contentions of both the parties and perused the materials available on record. From the preceding discussion, we note that the order of the AO was held as erroneous insofar prejudicial to the interest of revenue for the reasons that the AO has not conducted proper inquiries in the assessment proceedings. 8.1 However, we note that the AO during the assessment proceedings has required the assessee to furnish the deta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ect has been approved on 30th March, 2007 and therefore the same is to be completed before 31st March, 2012. The eligible profit has been calculated on sale of housing units during the year under consideration, after considering proportionate cost' of land and construction attributable to housing units sold during the year, fn other words, deduction u/s.80!B{10) has been claimed on year to year basis as the assessee is showing profit from partial completion of the project is each year. Please find enclosed herewith the copy of Audit Report in Form 10CCB in respect of deduction claimed under section 80IB(10) of the IT Act in respect of residential project namely Metro City - Chandkheda & Om Residency - Adalaj (Page No.l to 24). Further, it is submitted that the expenditure incurred for the residential projects Metro City Phase-llf & Emreraled Housing Project and commercial project Infotech has been shown as work-in-progress under the head Current Assets. It is also to be noted that during the year under consideration no revenue is recognized for such projects. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXX 7. (Point No.10) Please find enclosed herewith the deta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it was held as under: "It is clear that the provisions of section 263 cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer, it is only when an order is erroneous, that section will be attracted and incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the instant case, it was the finding of fact given by the Tribunal that the assessee had produced relevant material and offered explanation in pursuance of the notices issued under section 142(1) as well as section 143(2) and after considering those materials and explanation, the ITO had come to a definite conclusion. The Commissioner did not agree with the conclusion reached by the ITO. Section 263 did not empower him to take action on these facts to arrive at the conclusion that the order passed by the ITO was erroneous and prejudicial to the interest of the revenue. Since the material was there on record and the said material was considered by the ITO and a particular view was taken, the mere fact that different view could be taken, should not be the basis for an action under section 263 and it could not be ....