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TMI Blog2016 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... erspective, we are of the opinion that the Ld. CIT order under section 263 is to be upheld. - Decided against assessee - ITA. No. 1203/Hyd/2015 - - - Dated:- 27-1-2016 - Shri D. Manmohan, Vice President And Shri B. Ramakotaiah, Accountant Member For the Petitioner : Mr. P. Muralimohan Rao For Revenue : Mr. P. Somasekhar Reddy ORDER Per B. Ramakotaiah, A. M. This appeal by assessee is against the order of 263 of Pr. CIT (Central), Hyderabad dated 09.09.2015. The assessee has raised the following grounds : 1. The Ld. Pr.CIT (Central), has erred in passing the order u/s.263 on the ground that the order passed u/s. 154 of the Act by the DCIT, Circle-3, Hyderabad is erroneous in so far as it is prejudicial to the interests of the Revenue. 2. The Ld. Pr.CIT (Central) ought to have appreciated that an order passed by AO giving effect to order of the Hon'ble ITAT cannot be subjected to revisionary proceedings u/s.263 of the Act. 3. The Ld. Pr.CIT (Central) has erred in observing that there is no record of evidence to support that the AO has called for the details and examined various conditions imposed u/s. 80lA for allowing the deduction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a revised return declaring total income of ₹ 8,71,79,890 claiming deduction under section 80IA to an extent of ₹ 37,51,47,551. In the scrutiny assessment completed under section 143(3) dated 31.12.2009, the A.O. discussed the claim of the assessee under section 80IA elaborately from page 2 to 20 (upto para 27) and disallowed the claim holding that assessee is only works contractor, there are no agreements with the Government, provisions of section 80IA are not satisfied. This order of A.O. is the subject matter of appeal before the Ld. CIT(A) who vide his order dated 10.01.2011 confirmed A.O s stand and disallowed the claim. On further appeal with the ITAT, the ITAT vide order in ITA.No.1970/Hyd/2011 remitted the matter to the file of the A.O. with the following directions : 36. Considering the above order of the Tribunal, as the facts and circumstances are same, we are inclined to remit the issue back to the file of the Assessing Officer with a direction to examine the issue afresh and to see whether the assessee carried on the development of infrastructure facilities cumulatively with the activities of design, development, operation, maintenance, financial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own judgment in the case of M/ s. GVPR Engineers. 14.2. The decision of the Hon'ble ITAT was not accepted by the department in the case of M/ s. GVPR Engineers and a further appeal to the Hon'ble High Court of Andhra Pradesh is already preferred u/s. 260A of the I.T. Act, 1961. Keeping in view the stand taken by the department with regards to the allowability of deduction u/s. 80IA and to keep the issue with regards to eligibility for deduction u/s.80IA alive, the deduction claimed by the assessee u/s.80IA is not allowed and the same is added back. 2.3. Having decided to reject the claim on the basis of the legal principles, the A.O. immediately thereafter on 07.04.2013 i.e., within the week, has allowed the claim in an order u/s 154 by stating as under : 2. However, this is a mistake apparent from record, as in the instant case of the assessee for the A.Y. 2007-08, the Hon ble ITAT in its order for the A.Y. 2007-08 in its order No.ITA/1970/Hyd/2011 has directed for examination of the claim of the assessee and allowed the same. After verifying the claim, the deduction u/s.80IA is allowed. 2.4. The Ld. CIT noticed that the A.O. has not carried out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had furnished the requisite information and the Assessing Officer had completed the assessment after considering all the facts. The Pr. Commissioner of Income Tax is not justified in proposing to revise the order of the Assessing Officer. 2.6. Ld. CIT however did not agree with the contentions and has set aside the order under section 154 dated 07.04.2013, with a direction to the A.O. to examine the claim in accordance with the directions of the ITAT and allow such claim as admissible in terms of the order of ITAT. The assessee is aggrieved and raised the above grounds. 3. Ld. Counsel reiterating the submissions made before the Ld. CIT submitted that the A.O. has examined and allowed the same in an order under section 154. Therefore, Ld. CIT was precluded in initiating the proceedings. Further it was also submitted that the issue was decided by another order dated 31.01.2013 and not in the order dated 07.04.2013. Therefore, the proceedings were wrongly initiated on this order. He also relied on various case law to submit that jurisdiction to invoke the provisions of 263 are not correct. 4. Ld. D.R. however, placed on record the orders passed by the A.O. and partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the assessee, we are of the opinion that A.O. had wrongly allowed the claim, that too in an order under section 154. As extracted above, the order is so cursory and nothing can be made out whether A.O. examined all the issues as directed by the ITAT. Since the direction of the ITAT has not been implemented in its correct perspective, we are of the opinion that the Ld. CIT is well within his rights to invoke the jurisdiction under section 263 and set aside the order dated 07.04.2013 with a direction to re-examine and allow accordingly. Since the ITAT directions are not implemented in its correct perspective, we are of the opinion that the Ld. CIT order under section 263 is to be upheld. 6. Another argument raised by Ld. Counsel is that A.O. decided the issue not in the order dated 07.03.2013 but in earlier order dated 31.01.2013 or 04.03.2011 which are placed on record. We have perused those orders and find that the issue under section 80IA was not subject matter of rectification in those orders. Therefore, this argument of Ld. Counsel is rejected. Grounds of the assessee are rejected. 7. In the result, appeal of the assessee is dismissed. Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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