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TMI Blog2021 (7) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee`s instant case, we note that Assessing Officer has raised the query and the assessee has replied that query, therefore, the assessing officer would have examined the relevant issues. Hence, order passed by the assessing officer is neither erroneous nor prejudicial to the interest of revenue. Reason (issues) advanced by the ld PCIT, as noted to treat the assessment order, as erroneous and prejudicial to the interest of revenue, is devoid of merit and does not deserve to be affirmed. We quash the order passed by the ld PCIT under section 263 of the Act. - Decided in favour of assessee. - ITA No.286/SRT/2018 - - - Dated:- 12-7-2021 - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Shri Hiren Vepari - CA For the Respondent : Shri Ritesh Mishra CIT(DR) ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: By way of this appeal, the assessee has called into question correctness of impugned order passed by the Learned Principal Commissioner of Income Tax,(In short ld.PCIT ) under section 263 of the Income tax Act, 1961, in the matter of assessment under section 143(3) of the Act for the assessment year 2013-14, on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2013- 14, the assessee claimed deduction under section 80-IA in respect of profits derived from generation of power from windmill unit situated at Chattar Village, Kalawad Taluka, Jamnagar, District, Gujarat. Date of commencement of undertaking is 31.03.2008. Initial assessment year for claim of deduction under section 80-IA is the assessment year 2012-13. It was observed by ld PCIT, that Profit and Loss account for A.Y. 2013-14 was not available on record in respect of aforesaid undertaking (windmill unit). Further, it was also observed by ld PCIT that the assessee had not filed the Form 10CCB and related accounts of the undertaking along with return of income in contravention to provisions stated under section 80IA(7) of the Act. However, later on, at the time of assessment proceedings, Form 10CCB was furnished by assessee. The ld PCIT also observed that according to section 80IA(5), for the purpose of determining, the quantum of deduction under section 80IA(1), only the source of income of the taxpayer from the eligible business during the previous year relevant to the assessment year had to be taken into consideration. Since, year wise detail of profit/loss for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the position envisaged in notice u/s 263 is one where proceedings are initiated on the platform (a) on the doubt that documents are not on records when documents have already been on records of the Department, or (b) where the documents are not found where the assessee was not mandated to file them under the e-filing regime. With (i) the documents now shown to have been filed and the fact that (ii) documents now on records (Page no.l to 2), the proceedings would not have any base to sustain. Even otherwise, section 263 action cannot be taken for want of verification of documents, and the assessment order cannot be rendered erroneous particularly, the Assessing officer has been satisfied with the claim u/s 80-IA with a specific query on that point.------------- 6.The ld.Pr.CIT had gone through the above reply of the assessee and then rejected the arguments and contentions raised in this reply observing as follows:- (i). The ld.Pr.CIT noted that assessee has mostly dealt with procedural aspect while claiming deduction u/s 80IA of the Income Tax Act such as no requirement to file annexure etc. with return of income. The ld.Pr.CIT noted the law point as enumerated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h wind mill and other relevant documents as required to claim deduction u/s 80IA of the Act. 8.Aggrieved by the order of Ld.Pr.CIT, the assessee is in appeal before us. 9. The ld.Counsel for the assessee has stated before us that assessee has submitted each any every documents during the assessment proceedings and the assessing officer examined them and frame the assessment under section 263 of the Act, therefore order passed by the assessing officer should not be erroneous. The ld Counsel invited our attention to para 7 of order u/s 263 of the Act, wherein the Principal CIT has invoked action in the present matter as per clauses (a) and (b) of Explanation 2 of Section 263 of the Act. The ld Counsel states that Explanation 2 of Section 263 of the Act was inserted by the Finance Act 2015, and the Surat Bench, in the case of Pradeep Chhatrala (ITA 308/SRT/2019) (pg.59-70 of paper book), has held that insertion of Explanation 2 of Section 263 of the Act, have prospective application w.e.f. 01/06/2015. Therefore, as the provisions cited by the Principal CIT for invoking action under section 263 of the Act, come into effect subsequent to the Assessment Year under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law . 12. We note that in the assessment order framed under section 143(3) of the Act, the date of order is mentioned as, 18.03.2016( as mentioned by assessing officer), however, ld PCIT in his order under section 263 of the Act has stated the assessment order date as 10.03.2016. This is typographical error and does not have impact on our adjudication. 13. Taking note of the aforesaid dictum of law laid down by the Hon ble Apex Court, noted by us in para no.11 of this order, let us examine whether order passed by the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from wind mills installed in F.Y. 2007-08 and 2011-12. Thus, we note that during the assessment proceedings, the ld.Assessing Officer has raised the question/query and the assessee has replied that query. The assessee has submitted before the AO, the details of income earned and expenses incurred during the year from wind mills. Thereafter, the Assessing Officer has examined the details and documents submitted by the assessee, therefore, adequate enquiry has been made by the Assessing Officer, hence order passed by the assessing officer is not erroneous. (2).[Para 3 of PCIT Order] The assessee had not filed Form 10CCB and related accounts of the undertaking (windmill unit) along with the return of income in contravention of provisions stated in section 80IA(7) of the Act. We note that assessee has submitted Form 10CCB by way of e-filed on 29/09/2013 vide e-ack 803471551290913 (pg.18-22), therefore, assessing officer has examined it. (3).[Para 3 of PCIT Order] Since the year-wise details of profit and loss account for assessment year 2013-14 in respect of above undertaking (windmill unit) was not available on the records, hence the correctness of the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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