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TMI Blog2018 (11) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... law because the said order does not decide the said issue. Original assessment order was consequent to picking up the issue during CASS of claim of deduction under section 80IA(4) of the Act and even re-assessment proceedings were vis-à-vis aforesaid deduction by assessee, who was the partnership concern. AO has already taken a view in this regard and the same cannot be disturbed by Commissioner on the same grounds as that would amount to change of opinion. Further, in any case, under the provisions of section 80IA(4) an enterprise is entitled to claim the aforesaid deduction and the Commissioner is wrong in proposing that the company is entitled to claim the aforesaid deduction. Even on this ground, the order of Commissioner under section 263 of the Act, fails. Hence, we hold that exercise of jurisdiction by Commissioner under section 263 of the Act is both invalid and bad in law. In respect of balance shown in the Balance Sheet and corresponding interest, no such issue was decided in 148 proceedings neither in reasons recorded for reopening nor in the final assessment order dropping the said proceedings. Hence, the Commissioner has exceeded the jurisdiction vested under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of the Act by holding that the A.O. has wrongly allowed the deduction U/s. 80IA(4) to the appellant on the basis that the appellant has not entered into any agreement with the Central or State Government or any Local Authority for developing, operation or maintaining a new infrastructure facility particularly when the same was not the subject matter of the reasons recorded for assessment U/s. 147/148 of the Act. 5. On the basis of facts and in the circumstances of the case and as per law, the Principal Commissioner of Income Tax - 2, Nashik is not justified in setting aside the assessment by holding that the AO has wrongly allowed the deduction u/s. 80IA(4) to the appellant particularly when the same was allowed by the AO after due application of mind. 6. On the basis of facts and in the circumstances of the case and as per law, the Principal Commissioner of Income Tax - 2, Nashik is not justified in initiating the proceedings U/s. 263 of the Act and setting aside the assessment by holding that the AO has not carried out verification in respect of credit of bank interest to Profit Loss Account particularly when all the bank account statements of the appellant were submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter is placed at page 10 of Paper Book. The Assessing Officer passed an order under section 143(3) r.w.s. 147 of the Act dated 31.01.2014 and the assessment proceedings initiated under section 147 of the Act were dropped, copy of the same is placed at page 12 of Paper Book. Consequent to the dropping of said proceedings, the Commissioner issued show cause notice to the assessee under section 263 of the Act, copy of the said show cause notice is placed at page 14 of Paper Book. The Commissioner observed that the case was reopened by issue of notice under section 148 of the Act and proceedings were dropped by the Assessing Officer vide order dated 31.01.2014. The said action of Assessing Officer, as per the Commissioner was not in accordance with law and was erroneous and in so far as it was prejudicial to the interest of Revenue. The Commissioner thus, show caused the assessee to explain as to why said order be not modified. The assessee participated in the proceedings before the Commissioner and submitted its submissions in response to the notice issued under section 263 of the Act. The Commissioner was of the view that in the said case, the assessment order needed to be set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then referred to reasons recorded to verify the claim of deduction under section 80IA(4) of the Act, which are placed at page 8 of Paper Book and reply of assessee which was extensively verified and the Assessing Officer dropped proceedings initiated under section 148 of the Act by passing order under section 143(3) r.w.s. 147 of the Act. The learned Authorized Representative for the assessee pointed out that against the assessment order passed under section 143(3) of the Act, dated 01.06.2012, notice under section 263 of the Act could be issued by Commissioner upto March, 2015. However, notice under section 263 of the Act was issued by Commissioner on 08.01.2016, so it cannot be against original assessment order under section 143(3) of the Act but issued against assessment order passed under section 143(3) r.w.s. 147 of the Act. The learned Authorized Representative for the assessee further pointed out that assessment was reopened for the sole reason that the assessee was not a company. He referred to the provisions of section 80IA(4) of the Act and pointed out that the said deduction was allowable to an enterprise which was owned by a company. He then referred to the original as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise his jurisdiction under section 263 of the Act. However, where the Assessing Officer has considered the issue and has taken a view on the issue, merely because the Commissioner does not agree with the view taken by Assessing Officer would not entitle the Commissioner to exercise his jurisdiction of revision under section 263 of the Act. Such is the proposition laid down by the Hon'ble Supreme Court and various other Courts. 13. Now, coming to the facts of present case, the assessee has been claiming aforesaid deduction under section 80IA(4) of the Act in the preceding years and even in succeeding years. The claim of assessee was duly verified by the Assessing Officer in preceding year i.e. assessment year 2009-10 and by speaking order passed under section 143(3) of the Act, the said claim of assessee was allowed. The status of assessee remains the same as in earlier years even for the year under consideration. The Assessing Officer has accepted the status of assessee and allowed deduction claimed under section 80IA(4) of the Act by passing speaking order under section 143(3) of the Act. The assessment proceedings in the hands of assessee were initiated under CASS solely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80IA(4) of the Act, wherein the Assessing Officer observed that it was allowable in the case of company only and not to any other person i.e. individual, HUF, firm, etc. and hence, it needed verification. Similar reasons have also been recorded for assessment year 2011-12, wherein admittedly, original return of income was processed under section 143(1) of the Act and no assessment order was passed under section 143(3) of the Act. In response to the aforesaid reopening of assessment in the case of assessee, the assessee raised objections to notice issued under section 148(2) of the Act and pointed out that the said issue of allowability of deduction to a person other than company was discussed during assessment proceedings and the Assessing Officer had granted deduction after being satisfied with explanation given on behalf of assessee. The assessee alleged that there was no new material coming to light for initiation of action under section 147 / 148 of the Act and mere change of opinion could not constitute reason to believe . Hence, request was made for dropping proceedings initiated under section 148 of the Act. The Assessing Officer vide order passed under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier order dated 01.06.2012, which has not been disturbed by any of the authorities. The exercise of jurisdiction by Commissioner in such circumstances by issuing show cause notice and holding the assessee to be not eligible for claiming the deduction under section 80IA(4) of the Act does not stand. Where the Commissioner had exercised jurisdiction against second assessment order passed i.e. dropping 147/148 proceedings, then the stand of Commissioner in holding that the assessee was not eligible to claim the aforesaid deduction, cannot stand in the eyes of law because the said order does not decide the said issue. 17. Another point, which may be pointed out herein is that original assessment order was consequent to picking up the issue during CASS of claim of deduction under section 80IA(4) of the Act and even re-assessment proceedings were vis- -vis aforesaid deduction by assessee, who was the partnership concern. The Assessing Officer has already taken a view in this regard and the same cannot be disturbed by Commissioner on the same grounds as that would amount to change of opinion. Further, in any case, under the provisions of section 80IA(4) of the Act, an enterprise is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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