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2013 (5) TMI 16 - ITAT MUMBAIDeduction claimed under section 80IA - CIT(A) passed order u/s 263 as the assessment made by the AO is erroneous inasmuch as it is prejudicial as the deduction claimed u/s 80IA has wrongly being allowed - assessee had set-up a Wind mill and commencement of its operation was started on 29th September 2006 i.e., assessment year 2007-08 - Held that:- Decision heavily relied upon by the DR of Hyderabad Chemical Supplies Ltd. (2011 (1) TMI 173 - ITAT HYDERABAD) will not apply to the facts of the present case, as in that case, the wind mill started its operation on 31st March 1999 and the first year of operation was assessment year 1999-2000. Thus, in the assessment year 1999-2000, the definition of "initial assessment year" was already there in the Act and there was no provision through which the assessee could have chosen its initial assessment year. This provision was brought in statute w.e.f. 1st April 2000, by virtue of section 80IA. In assessee's case, as specifically stated is for initial assessment year i.e., assessment year 2008-09 and its claim for deduction under section 80IA made for the first time from assessment year 2008-09, has not been disputed. Claim of deduction u/s 80IA was based on possible legal view which has been allowed by the AO, therefore, it cannot be held erroneous. Merely because the AO in the subsequent assessment year has followed Special Bench decision of ACIT v/s Goldmine Shares [2008 (4) TMI 405 - ITAT AHMEDABAD] which admittedly was rendered with regard to the claim of deduction starting from the assessment year 1996-97 wherein there was no concept of assessee choosing his option of initial assessment year in view of the provisions prior to the amendment, it cannot be held that the assessee's claim of initial assessment year being assessment year 2008-09 and its claim for deduction allowed by the AO under section 80IA is erroneous in law. In favour of assessee. Disallowance of foreign travel expenses has been made on fixed percentage of 4% of the expenses despite that the AO has noted that the desired details / documentary evidences were not submitted - Held that:- Such a view taken by the AO cannot be disturbed without any difference in the facts and circumstances of the case. Thus, no merits in the impugned order passed under section 263 by CIT for cancelling the assessment and to re- examine the same. In favour of assessee.
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