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2018 (7) TMI 213 - ITAT NAGPURRevision u/s 263 - claim of deduction under section 80IA(4) - shouldering of investment for a period of three moths cannot be said to be shouldering of investment - ITAT held that the issue in the said case needs to be re-examined by the Assessing Officer - CIT-A noted that the ITAT directed the Assessing Officer to examine the case particularly from the point of view whether the assessee is expected to shoulder out the investment part in execution of the contract - Held that:- After the direction of the ITAT, the Assessing Officer had elaborately examined the issue. He has specifically mentioned that he is following the guidelines as emanating from the above said decision of the ABG Heavy Industries Ltd. (2010 (2) TMI 108 - BOMBAY HIGH COURT) by numerically noting the facts of the case which compared favourably with the guidelines emanating in the aforesaid case. AO noted that in this case, the assessee is responsible for funds and the development of the project. He is also responsible for the risk, damage, etc and hence, the Assessing Officer came to the conclusion that the assessee was eligible for deduction u/s. 80-IA(4) of the Act. Observation of the ld. Commissioner of Income Tax is totally extraneous and unsustainable - Commissioner of Income Tax has obtained the assessee’s response in this regard. He noted that the assessee was shouldering the investment and after the substantial completion of the work, which entailed approximately three months, the assessee was made payment. The ld. Commissioner of Income Tax disregarded this aspect by holding that the payment of bills after three months is normally phenomenon in government contracts. We find this observation strange and not at all sustainable as even if the assessee is putting his investment for three months, it can by no stretch of imagination be said that the assessee is not shouldering investment. Hence, the Assessing Officer’s acceptance of this aspect can by no stretch of imagination be said to be improbable or impossible view. Commissioner of Income Tax has further stated that the Assessing Officer is directed to examine the matter in the light of the above discussion. He further stated that the Assessing Officer may also examine the case from the other perspective arising out of the decision of the ITAT. We find that this clearly shows that the ld. Commissioner of Income Tax is sitting in appellate forum over the ITAT decision in this case, which is totally unsustainable. - Decided in favour of assessee.
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