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TMI Blog2015 (12) TMI 1902X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue. For this proposition learned CIT mentioned the following: a) Learned CIT noted that to be eligible for claim of deduction u/s. 80IB(10), first condition to be satisfied was that the built up area of the residential unit should not exceed 1500 sq.ft. built up area as defined u/s. 80IB(10) of the I.T. Act. Learned CIT noted that the AO has not examined this aspect nor the assessee as well as the Auditor has furnished such working in respect of each residential unit. b) That the AO has allowed the deduction u/s. 80IB(10) in respect of extra construction work receipt of Shanti Park of Rs. 2.81 lakhs. That this was not income derived from income of housing project. c) As per the provisions of section 80IB(10) the maximum shopping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary of work in progress which is appended to this order as Annexure-4. This summary does not indicate as to how the closing work in progress is valued. The AO had neither called for any details about the purchases of Rs. 129.07 lacs, direct expenses of Rs. 42.82 lacs and other indirect expenses of Rs. 43.78 lacs nor the same is filed by the assessee during the course of the assessment proceedings pursuant to the notice issued u/s. 143(2). Ledger copies thereof are first time filed during the course of this proceedings u/s. 263. These facts establish that AO had not verified the correctness of closing work in progress and details of the expenses capitalised. This action on the part of the AO is erroneous and prejudicial to the interest of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide section 263 of I.T. Act, 1961 set-aside the assessment completed by the AO vide order u/s. 143(3) dtd. 29-12-2008 for A.Y. 2006-07 on the various issues mentioned in para No. (a) to (j) of the show cause notice u/s. 263 dtd. 22-03-2011. The AO is directed to adjudicate these issues afresh and complete the assessment afresh in accordance with law and after making due enquiries as discussed in the preceding paragraphs. The AO will allow due opportunity of being heard to the assessee before completion of the assessment afresh." 5. Against the above order, assessee is in appeal before us. 6. We have heard both the counsel and perused the records. Learned counsel of the assessee submitted that learned CIT has totally erred in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions laid down in section 80IB(10) of the Act. Hence learned counsel of the assessee submitted that the AO adopted the view permissible under law. Learned counsel refers to several case laws and submitted that the AO has passed the order after taking into account assessee's submissions and documents and no material is on record brought by the learned CIT which shows that there was any discrepancy or falsity of evidence furnished by the assessee. He submitted that the order of AO cannot be set aside for making deep enquiry only on the presumption that something new may come out. 8. Thereafter learned counsel of the assessee made submissions point-wise on the merits of the issue raised by the learned CIT in his order u/s. 263. 9. Per co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee has submitted necessary details before him. Learned CIT has not found any thing adverse in these details. Moreover there are case laws for the proposition that capital introduced by the partners has to be examined in the hands of partners in their individual account. Hence the AO having adopted one of the possible views, it cannot be said that the learned CIT was justified in invoking jurisdiction u/s. 263 of the I.T. Act. 12. In this regard we draw support from the decision of Hon'ble Apex Court in the case of Max India Ltd. 295 ITR 282. In this case it was expounded that where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as erroneous order prejudicial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed that assessee resided nor carried on any business from the address declared in the returns. Also the CIT noted that Income-tax Officer was not justified in accepting the initial capital, the gift received and sale of jewellery, the income from business, etc., without any enquiry or evidence whatsoever." We find that these facts are not applicable here. 16. Another decision relied upon by the Revenue is the Hon'ble Allahabad High Court decision in the case of Swarup Vegetable Products vs. CIT 187 ITR 412. In the said case it was held that the Commissioner does have the power to set aside the assessment order and send the matter for a fresh assessment if he satisfied that further enquiry is necessary and that the order of the ITO i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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