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TMI Blog2017 (9) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Sr. DR ORDER PER SUCHITRA KAMBLE, JM The appeal is filed by the assessee against the order dated 17/3/2015 passed by Pr. Commissioner of Income Tax- Noida for Assessment Year 2010- 11. 2. The grounds of appeal are as under:- "1. That the Learned CIT (Ld. CIT) has erred on facts and in law in setting aside the assessment to be made de novo. 2. That the order of Ld. CIT is unlawful and beyond permissible jurisdiction under section 263 of the Income Tax Act (Act). The order of Learned Assessing Officer (Ld. AO) is not an erroneous order prejudicial to the interest of the revenue within the meaning of section 263 of the Act. As such too, the order of Ld. CIT is unlawful and is liable to be quashed. 3. That the Ld. CIT has referred to and relied upon the order in A.Y. 2009-10 of the Ld. CIT u/s 263 on similar issues. The said order of the Ld. CIT in A.Y. 2009-10 has been quashed by the Hon'ble ITAT vide order dated 13.04.2015 in ITA No. 333/Del/2014. In view of the precedent of the Hon'ble ITAT in this appellant's case in the appellant's favour, the order under appeal is unlawful, without merit and deserves to be quashed on all the issues involved. 4. That the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above claims as in ground 7 have been processed and correctly allowed after due consideration. There is no final finding by the Ld. CIT that these claims are incorrect. The assessee was duly entitled to these claims which are correctly allowed and as such too setting aside the assessment to be made de novo is unlawful and the order of the Ld. CIT deserves to be quashed. 9. That the order of the Ld. CIT is based on erroneous views and non appreciation of the facts and law involved including binding case law supporting the appellant which include decisions of the Hon'ble Apex Court and Hon'ble Jurisdictional High Courts. Inter alia the Ld. CIT has erred in not following the ratio of the decision in 131 ITR 597 (SC) in the case of K.P. Vargheese v. ITO. As such too, the assessee's claim under section 80IA(4) has been correctly allowed by the Ld. AO as also held by the Hon'ble ITAT in its said order in A.Y. 2009-10 in appeal against order of Ld. CIT u/s 263. The Ld. CIT has erred in setting aside the assessment. 10. That the order of the Ld. CIT, setting aside the assessment to be made de novo, rather than giving a final finding is unlawful, as also held by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 80IA of the Act. Therefore, assessee's claim of deduction u/s 80IA was accepted by the Assessing Officer. An order under Section 263 of the Act was passed on 30.03.2014 for A.Y. 2009-10 in which it was held that the Assessing Officer in that year, had passed an order which was erroneous and prejudicial to the interest of revenue, insofar as the allowance of deduction under section 80IA of the Act was concerned as also for the reason that such deduction has been allowed in respect of ineligible income and depreciation had been allowed even while the project was incomplete. 4. In the backdrop of the said order, the assessment records for the year under consideration were examined by the Pr. Commissioner of Income Tax and a questionnaire dated 05.11.2012 was issued in the case during the course of the assessment proceedings whereby the case of payments, covered under section 40A(2)(b) of the Act and the reasonableness of such expenses; the details of loans and advances along with the details of interest; details of sundry debtors of more than ₹ 25 Lacs; and details of deduction claimed, if any, under Chapter VIA of the Act along with justification stating as why the ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been contended that the deduction, being a beneficial provision, or promote investment in and development of infrastructure facility and therefore, they are to be interpreted liberally so as to advance their objectives. 5. The CIT passed order u/s 263 of the Act as under:- "8. In view of the above, the assessment framed u/s 143(3) of the I.T. Act, 1961 dated 12/3/2013 is considered erroneous and prejudicial to the interest of revenue having been completed without proper appreciation of the relevant provisions of law and/or the binding decision of the Apex Court and without proper examination, which was warranted in the facts and circumstances of the case. Accordingly, the aforesaid assessment is setaside with a direction to the AO to make a fresh assessment de-novo after proper examination of all relevant facts and appreciation of the provisions of law, after affording adequate opportunity of being heard to the assessee." 6. Aggrieved by this, the assessee filed appeal before us. 7. The Ld. AR submits that in assessee's own case for Assessment Year 2009- 10 order u/s 263 was set aside by the ITAT in ITA No.3339/DEL/2014 vide order dated 13.04.2015. The Ld. AR further s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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