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TMI Blog2013 (5) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80IB to which assessee has given a detailed reply demonstrating its eligibility and it has also drawn support from the decision of Sumaraj Seafoods Pvt. Ltd. (2007 (6) TMI 302 - ITAT MUMBAI). As AO has passed a speaking order by duly extracting the reasons recorded for re- opening, the reply given by the assessee, the relevant observations made by the Mumbai bench of the Tribunal in the case referred supra there is proper application of mind on the part of the AO and further the view taken by him is one of the possible views, since it is in accordance with the decision rendered by the Tribunal. It is now well settled proposition of law that merely because the CIT is having a different view, the same would not entitle him to init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to all other cases also. The Learned D.R also did not raise any objection to the plea made by the Learned A.R. Accordingly, we heard the parties in respect of the appeal numbered as IITA No.223/Viz/2012. 3. The Learned Counsel for the assessee submitted that the assessee herein is engaged in the business of purchase and sale of milk. It also operates a chilling plant for storage of milk. It filed its return of income for the years under consideration after claiming deduction u/s 80IB of the Act in respect of income relatable to the chilling plant considering the same as a cold storage for the purposes of section 80IB (3)(ii) of the Act. The Learned Counsel for the assessee submitted that the assessees herein have declared their nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3)(ii) of the Act. The fact that the assessee herein is a small scale undertaking was accepted by the assessing officer during the course of reassessment proceedings. Further, the assessee filed a detailed reply to the assessing officer with regard to its eligibility to claim deduction u/s 80IB of the Act. By inviting our attention to the assessment order submitted that the assessing officer examined the issue in detail, and he has also extracted the submissions made by the assessee in the body of the assessment order. Before the assessing officer, the assessee also placed reliance on the decision rendered by the Mumbai Bench of Tribunal in the case of Sumaraj Seafoods (P) Ltd. Vs. ITO (2008) 112 ITD 177 and the assessing officer has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mind on the issue after detailed examination and further his view is also supported by the decision of Hon'ble Tribunal in the case of Sumaraj Seafoods Pvt. Ltd. (Supra). The learned Counsel submitted that the assessee has been claiming the deduction under section 80IB of the Act since the assessment year 1994-95. However, the Learned CIT has initiated proceedings only from the assessment year 2003-04 onwards. By placing reliance on the decision rendered by Hon'ble Bombay High Court in the case of CIT Vs. Western Outdoor Interactive P Ltd, the Learned Counsel submitted that the benefit of deduction available for a number of years on satisfaction of certain conditions cannot be withdrawn unless the relief granted for first assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 of the Income-tax Act, 1961 empowers the Commissioner to call for and examine the record of any proceedings under the Act and, if he considers that any order passed therein, by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, to pass an order upon hearing the assessee and after an enquiry as is necessary, enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment. The key words that are used by section 263 are that the order must be considered by the Commissioner to be "erroneous in so far as it is prejudicial to the interests of the Revenue". This provision has been interpreted by the Supreme Court in several judgments to which it is now necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Income-tax Officer is unsustainable in law." The principle which has been laid down in Malabar Industrial Co. Ltd. [2000] 243 ITR 83 (SC) has been followed and explained in a subsequent judgment of the Supreme Court in CIT v. Max India Ltd. [2007] 295 ITR 282." 7. There may not be any dispute that the revision proceeding shall not lie on the issues on which the Assessing Officer has taken a plausible view after examining and applying his mind on it. In the instant case, we notice that the assessing officer has re-opened the impugned assessments for the purpose of examining the eligibility of the assessee to claim deduction under section 80IB of the Act. We also notice that the assessee has given a detailed reply demonstrating its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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