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2018 (2) TMI 1515 - ITAT DELHIRevision u/s 263 - deduction u/s 80IA (4) (i) not allowable to the assessee as the assessee was only an operating company and not an enterprise engaged in the business of infrastructure development - Held that:- It is clear that an order cannot be termed as erroneous unless it is not in accordance with law - a certain assessment, the same cannot be branded as erroneous by the Ld. Principal Commissioner simply because, according to him, the order should have been written more elaborately. Section does not visualize a case of substitution of the judgment of the Commissioner for that of the AO - in the instant case the AO’s order was erroneous and prejudicial to the interest of the revenue within the terms of section 263. Once the said claim was considered and examined by the Assessing Officer, Commissioner cannot set aside the order without recording contrary finding. This will be contrary to Section 263 of the Act. The year under consideration in the fourth consecutive year in which the assessee had claimed deduction u/s 80IA. It is a matter of record that the assessee’s claim was accepted by the AO for Assessment Years 2008-09 and 2009-10 by orders passed u/s 143(3) of the Act. It is also a matter of record that there is no change in the facts this year as compared to the earlier assessment years. The Hon’ble Apex Court in the case of Shasun Chemicals and Drugs Ltd. vs. CIT (2016 (9) TMI 1199 - SUPREME COURT OF INDIA), while adjudicating an issue relating to section 35D, held that where a benefit is allowed to the assessee for first two assessment years, the same cannot be denied in the subsequent block period as once the claim of the assessee was accepted and the clock had started running in favour of the assessee, it had to complete the entire period of ten years. The same analogy can be applied to provisions of section 80IA also. CIT, on the facts of the case, at best can be termed as having a ‘different view’ from that of the AO. CIT has not brought on record any finding as to why the view of the AO was not legally sustainable. In our considered opinion, section 263 does not envisage the substitution of the view of the AO by the view of the Ld. Pr. CIT especially when there is no legal infirmity in the view taken by the AO. Impugned action of the Ld. CIT u/s 263 of the Act was patently illegal and liable to be quashed. The proceedings u/s 263 of the Act are accordingly quashed. - Decided in favour of assessee.
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