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TMI Blog2015 (3) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be considered as erroneous and prejudicial to the interests of Revenue particularly when it cannot be attributed to lack of enquiry by the AO. We are of the firm view that the learned Commissioner has no jurisdiction to invoke provisions of section 263. - Decided in favour of assessee. - ITA No. 2696/Mum/2014 - - - Dated:- 18-3-2015 - Shri D. Manmohan, Vice President and Shri N.K. Billaiya, Accountant Member Appellant by: Dr. P. Daniel/Shri S.M. Makhija Respondent by: Shri Surender Jit Singh ORDER D. Manmohan, V.P. This appeal by the assessee is directed against the order passed under section 263 of the Income Tax Act, 1961 and it pertains to A.Y. 2005-06. 2. Facts in brief are as follows. Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke on the part of the Land Revenue Authorities in as much as the area was actually 40.50 acres in the 7/12 extract whereas it was wrongly mentioned as 40 acres. Upon a petition filed by the assessee to the Pune Revenue Authorities, the Tahsildar, Pune City issued a fresh 7/12 extract mentioning the correct area. It was also submitted that the assessee applied for a revised approval plan and the local authority has approved the plan for total area of 40.50 acres. Since the plea of the assessee was corroborated by the Pune Municipal Corporation s certificate, AO allowed the claim of deduction under section 80IB(10) of the Act in his order dated 29.12.2011. 4. The learned Commissioner, in exercise of his powers vested under section 263 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153A r.w.s. 143(3) is not only erroneous but also prejudicial to the interest of Revenue and therefore the assessment order was set aside to the file of the AO to pass a fresh assessment order after conducting necessary enquiries to ascertain fulfilment of conditions relating to area of land for allowability of deduction under section 80IB(10) of the Act. 5. Aggrieved, assessee is in appeal before us. As could be noticed from the grounds of appeal, the main contention of the assessee is that the learned CIT erred in passing an order under section 263 of the Act since the order passed by the AO under section 153A r.w.s 143(3) be neither erroneous nor prejudicial to the interests of Revenue for the simple reason that the AO had considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not totally contrary to the law. He also relied upon several other decisions on this aspect. He has also referred to page No. 88 of the paper book to establish that area of the plot is 40.50 acres and reduction of area for setting up roads, gardens, etc. should not be excluded for the purpose of considering whether area of the plot is more than one acre or not and in this regard he relied upon the decision of the ITAT, Mumbai Benches in the case of M/s. Vidhi Builders (pages 95 to 104 of case law paper book) as well as the case of M/s. Umiya Enterprises (pages 48 to 54 of the case law paper book). He further submitted that demarcation of some area for road widening, etc. had been compensated by giving FSI rights, which was utilised for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the other hand, the learned D.R. submitted that the assessee merely purchased development rights and on the basis of demarcation of some land for road widening, etc. he was entitled for FSI which could have been sold to outsiders also though, in the instant case, it was utilised for this project but the fact remains that FSI granted can be sold outside and hence the portion which was delineated for road, parks, etc. should not be taken into consideration for the purpose of computing net available area for development. In the instant case the net available area for development is less than one acre. He strongly relied upon the circular issued by CBDT to submit that the view taken by the AO is contrary to the circular issued by CBDT whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submissions and carefully perused the record. It is not in dispute that the AO had taken into consideration the revised certificate issued by the Pune Municipal Corporation while granting the benefit of deduction under section 80IB(10) of the Act. In the light of several decision cited before us it cannot be disputed that the view taken by the AO is one of the possible views on the matter. As rightly observed by the Hon'ble Bombay High Court in the case Gabrial India Ltd. (supra) as well as the decision of Hon'ble Delhi High Court in the case of Sunbeam Auto Ltd. [322 ITR 167 (Del)] merely because the Commissioner of Income Tax holds a different opinion on the matter an order passed by the AO cannot be considered as erroneous and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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