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TMI Blog2017 (12) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... BER For The Assessee : Shri Marghav Shukla, CA Shri Amar Sanghvi, CA For The Department : Smt. Aparna Karan,CIT (DR) ORDER PER SUDHANSHU SRIVASTAVA, J.M Both these appeals have been preferred by the assessee. ITA No. 2735/DEL/16 challenges order dated 23.3.2016 passed by the Ld. Pr.CIT, Delhi, passed u/s 263 of the Income Tax Act, 1961 (hereinafter called the Act ) for assessment year 2012-13. ITA No. 2347/DEL/2016 challenges order dated 29.3.2016 passed by the Pr. CIT Delhi passed u/s 263 of the Act for assessment year 2011-12. As both the appeals have identical issues, they were heard together and are being disposed off through this common order. 2. Brief facts of the case for assessment year 2011-12 are that the return of income was filed declaring NIL income. Subsequently, the case was selected for scrutiny through CASS and the assessment was completed vide order dated 7.2.2014 wherein the assessee s claim of deduction u/s 80IA of the Act was accepted. Similarly, for assessment year 2012-13 the return of income was filed declaring NIL income and the case was selected for scrutiny through CASS and, thereafter, vide order dated 20.2.2015, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the Ld. Pr. CIT for both the years. 3. The Ld. Authorised Representative submitted that the orders passed u/s 263 of the Act were liable to be quashed because the allegation of the Ld. Pr. CIT that the AO had passed the order in haste and without examining the assesee s claim for deduction u/s 80IA was factually incorrect. He drew our attention to the paper books filed for both the years and drew our attention to the notices issued by the AO along with the list of accounts and documents required by the AO for the purpose of assessment proceedings. He further drew our attention to the copies of detailed submissions made before the AO and also copy of detailed note specifically on the issue of claim of deduction u/s 80IA of the Act which was submitted before the AO and was available on pages 6 to 33 of the paper book. It was submitted that the AO had made a proper inquiry and which was duly responded to by the assessee in great detail, especially, with respect to the assessee s claim of deduction u/s 80IA and, therefore, the allegation of the Ld. Pr. CIT regarding nonexamination of the eligibility for the claim of deduction by the AO was incorrect. It was also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard the rival submissions and have perused the material on record. The facts of the case are undisputed. The assessee is a joint venture between M/s Pratibha Industries Ltd and M/s Paryavaran SMS. The assessee was engaged by HUDA for the work of designing, constructing, testing, commissioning, operating and maintaining for five years works comprising of inlet channels, RCC storage and sedimentation tanks, raw water sumps, raw water pump houses, automated W.T.P clear water pumping machinery, pre and post chlorination, system and all other works contingent thereto, complete in all respects on turnkey basis for HUDA at village Chandu Budhera, District Gurgaon, Haryana. 5.1 As per the sub section 4 of section 80IA of Income Tax Act, 1961 deduction is available for 10 years out of 20 years to an eligible enterprise if the infrastructure facility is of the nature of rail system, highway project, water supply project, port etc. This section further provides that it applies to any enterprise carrying on the business of 1) developing; 2) operating and maintaining; 3) developing, operating and maintaining any infrastructure facility subject to the fulfilment of the conditions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer has been satisfied by the explanation of the assessee, then it cannot be said that the order passed by the Assessing Officer is erroneous. It is not material that in case of inquiries made by the Assessing Officer, the Assessing Officer makes detailed discussion on those issues in the assessment order. On the facts of the case before us, it is evident from the records that the Assessing Officer had required the assessee to furnish details/documents in support for its claim u/s 80IA of the Act. Thus, it is evident that on the issue involved in the order of the Ld. Pr. CIT, the Assessing Officer had made some kind of inquiry to which the assessee had duly responded. Therefore, the view of the Ld. Pr. CIT that inquiry has not been made by the Assessing Officer is not correct and it is not the case of lack of inquiry as has been alleged by the Ld. CIT. 5.3 In the case of CIT vs Sunbeam Auto Ltd. reported in 332 ITR 167 (Del.), the Hon'ble Delhi High Court has held as under:- We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction. The Commissioner ' cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the wellaccepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity (See Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1 (SC) at page 10) . . . From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Incometax Officer, who passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision. 5.5 Similarly, the Bombay High Court in CIT vs Fine Jewellery (India) Ltd. reported in 372 ITR 303 (Bombay) held that if an inquiry is raised during the assessment proceedings and responded to by the assessee, the mere fact that it has not dealt with it in the assessment order would not lead to a conclusion that no mind had been applied to it. 5.6 The Hon'ble Bombay High Court in Gabriel India Ltd. reported in 203 ITR 108 (Bom.) has held that the power of suo moto revision cannot be exercised by the Commissioner if, only based on the examination of records, he considers that any order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue. The Hon ble High Court held that power u/s 263 is not an arbitrary or unchartered power and can be exercised only on the fulfilment of the requirement laid down in section 263(1) of the Act. The Hon'ble Bombay High Court further held that the conclusion of the Commissioner must be based on material on record and proceedings called for by him and if there are no materials on record on the basis of which it could be said that the Commissioner acting in a reasonable manner c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 230 ITR 695 (Mad) that assessment order made after considering all facts and information cannot be revised. Where the assessee had furnished the requisite information and the Assessing Officer had completed the assessment after considering the facts but the commissioner revised the assessment order on the ground that the Assessing Officer had not made proper enquiries, the Tribunal was held to be justified in reversing the order of the commissioner and restoring that of the assessing officer. The Commissioner cannot reexamine accounts and substitute his judgment for that of the Assessing Officer. An order cannot be termed as erroneous unless it is not in accordance with law. If assessing officer makes assessment in accordance with law, the same cannot be branded as erroneous by the commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualize a case of substitution of the judgment of the commissioner for that of the Assessing Officer unless the decision is held to be erroneous. Cases may be visualized where the Assessing Officer examines the accounts, makes enquires, applies his mind to the facts and circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a developer as well. The term contractor is not essentially contradictory to the term developer . On the other hand, rather section 80IA(4) itself provides that assessee should develop the infrastructure facility as per agreement with the Central Government, State Government or a local authority. So, entering into a lawful agreement and thereby becoming a contractor should, in no way, be a bar to the one being a developer. The assessee, presently under consideration before us, has developed infrastructure facility as per agreement with Maharashtra State Government / APSEB. Therefore, merely because, in the agreement for development of infrastructure facility, assessee is referred to as contractor or because some basic specifications are laid down, it does not detract the assessee from the position of being a developer, nor will it debar the assessee from claiming deduction under section 80IA(4). Discussed/considered as above, we hold that the assessee having carried out the work of constructing the above mentioned two projects, namely Srisailam Project and Koyana Project, as detailed above, is appropriately a developer of the said two infrastructure facilities, and in tur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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