M/s Vimla Infrastructure (India) Private Limited, Raipur V. Pr. Commissioner of Incometax-1, Raipur

ITA 18/RPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4882 (ITAT-RAIPUR)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 31-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 263; 143(3); 80G; 80IA; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI N. K. CHOUDHRY, JUDICIAL MEMBER ./ I.T.A. NO. 18/RPR/2021) ( ASSESSMENT YEAR : 2015-16) M/S. VIMLA INFRASTRUCTURE (INDIA) PRIVATE LIMITED 1 ST FLOOR, MOHSIN MARKET, GURUNANAK CHOWK, M. G. ROAD, RAIPUR (CG) - 492001 / VS. PR. COMMISSIONER OF INCOME TAX -1 CENTRAL REVENUE BUILDING, CIVIL LINES, RAIPUR (CG)-492001 ./ ./PAN/GIR NO. : AACCV2677D ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI NIKHILESH BEGANI, C.A. / RESPONDENT BY : SHRI P. K. MISHRA, CIT.DR DATE OF HEARING 29/07/2021 !'# / DATE OF PRONOUNCEMENT 29/09/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE PRINCIPAL COMMISS IONER OF INCOME TAX, RAIPUR-1 (PCIT IN SHORT), DATED 22.03.2021 P ASSED UNDER S.263 OF THE INCOME TAX ACT, 1961 (THE ACT) WHEREBY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) DATED 29 .12.2017 UNDER S. 143(3) OF THE ACT CONCERNING AY 2015-16 WAS SOUG HT TO BE SET ASIDE FOR REFRAMING ASSESSMENT IN TERMS OF SUPERVISORY DIRECTIONS. 2. THE GROUNDS OF APPEALS RAISED BY ASSESSEE READ H EREUNDER: ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 2 - GROUND NO.I 1. THAT THE REVISION ORDER PASSED BY THE LEARNED PR . COMMISSIONER OF INCOME TAX ('THE LD.PCIT') UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 ('THE ACT') IS HIGHLY UNJUSTIFIED, BA D IN LAW, WITHOUT JURISDICTION & VOID AB INITIO SINCE, THE LD .PCIT HAS GROSSLY ERRED IN CONCLUDING THAT THE LEARNED ASSESS ING OFFICER ('THE LD.AO') HAS FAILED TO CARRY OUT THE NECESSARY ENQUIRIES AND INVESTIGATION IN RELATION TO THE ISSUES WHICH PERTA INS TO THE MATERIAL ALREADY ON RECORD. HENCE, IT IS PRAYED THAT THE ORDER PASSED BY THE LD .PCIT UNDER THE PROVISIONS OF SECTION 263 OF THE ACT MAY PLEASE BE CANCELLED & QUASHED IN LIMINE. GROUND NO.II 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.PCIT HAS GROSSLY ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE LD.AO UNDER SECTION 143(3) OF THE ACT WITH DIRECTION TO MAKE FRESH ASSESSMENT ON SPECIFIED ISSUES BY HOLDING THAT THE SAID ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD.PCIT HAS FAILED TO APPRECIATE THAT THE SAID ASSESSMENT ORDER HAS BEEN PASSED BY THE LD.AO AFTER CONDUCTING NECESSARY & DI LIGENT ENQUIRIES WITH SPECIFIC EMPHASIS ON THE CLAIM OF DE DUCTION U/S.80IA OF THE ACT AND CONSCIOUS APPLICATION OF MI ND & DELIBERATION TO THE MATERIAL ON RECORD AND HENCE, I T IS PRAYED THAT THE ORDER PASSED UNDER SECTION 263 OF THE ACT BEING HIGHLY UNJUSTIFIED AND NOT IN ACCORDANCE WITH THE PROVISIO NS OF LAW, MAY PLEASE BE CANCELLED. GROUND NO.III 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.PCIT HAS GROSSLY ERRED IN HOLDING THAT THE LD.AO HAS NOT CONDUCTED PROPER ENQUIRIES IN RESPECT OF ADMISS IBILITY OF CLAIM OF DEDUCTION UNDER THE PROVISIONS OF SECTION 80IA OF THE ACT, PARTICULARLY WITHOUT HIMSELF RENDERING ANY PRI MAFACIE FINDINGS AS TO THE ADMISSIBILITY OR OTHERWISE OF TH E CLAIM PUT FORTH U/S.80IA OF THE ACT AND MERELY DIRECTING THE LD.AO TO VERIFY THE CLAIM WITH REFERENCE TO THE ASSESSMENT O RDERS OF THE INITIAL ASSESSMENT YEARS THEREBY PRINCIPALLY AGREEI NG WITH THE SUBMISSIONS OF THE APPELLANT HENCE, THE ACTION OF T HE LD.PCIT IS HIGHLY UNJUSTIFIED, UNWARRANTED AND NOT IN ACCORDAN CE WITH THE PROVISIONS OF LAW HENCE, ON THIS ISSUE, THE ORIGINA L ORDER PASSED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERES T OF THE REVENUE. THE LD.PCIT HAS FAILED TO APPRECIATE THAT FACTUM OF ELIGIBILITY OF DEDUCTION U/S.80-IA(4) WAS EXAMINED THREADBARE IN T HE INITIAL ASSESSMENT YEARS BY THE ASSESSING OFFICERS WHICH HA VE ACHIEVED FINALITY IN THIS REGARD AND HENCE, THE CLAIM OF DED UCTION U/S.80- IA OF THE ACT COULD NOT BE SOUGHT TO BE WITHDRAWN I N EXERCISE OF SUPERVISORY JURISDICTION U/S.263 IN THE INTERVENING YEARS. ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 3 - THE LD.PCIT HAS FURTHER FAILED TO APPRECIATE THAT T HERE BEING PLETHORA OF JUDICIAL PRECEDENTS WHEREIN THE CLAIM O F DEDUCTION U/S.80IA(4) HAD BEEN ALLOWED IN RESPECT OF RAILWAY SIDINGS TREATING IT TO BE INFRASTRUCTURE FACILITY' HENCE, THE LD.AO HAS ADOPTED A PERMISSIBLE VIEW IN ALLOWING THE CLAIM OF DEDUCTION ACCORDINGLY, THE ASSESSMENT ORDER PASSED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. GROUND NO.IV 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.PCIT IN HOLDING THAT THE LD.AO HAS NOT CONDUCTED PROPER ENQUIRIES IN RESPECT OF CLAIM OF DEDUCTION U /S.80G OF THE ACT WITH REGARD TO DONATION GIVEN TO PRIME MINISTER NATIONAL RELIEF FUND EVEN AFTER EXAMINING THE DONATION RECEI PTS IN THE COURSE OF REVISIONARY PROCEEDINGS HENCE, THE DIRECT ION OF THE LD.PCIT IS HIGHLY UNJUSTIFIED, UNWARRANTED, UNSUSTA INABLE, NOT PROPER ON FACTS AND NOT IN ACCORDANCE WITH THE PROV ISIONS OF LAW HENCE, ON THIS ISSUE, THE ORIGINAL ORDER PASSED IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 3. AS PER THE GROUNDS OF APPEAL, THE ASSESSEE HAS SOUGHT TO CHALLENGE THE JURISDICTION ASSUMED BY THE PCIT UNDE R S.263 OF THE ACT AND AS A COROLLARY, SOUGHT TO IMPUGN THE REVISI ONAL ORDER PASSED BY THE PCIT UNDER S.263 OF THE ACT. 4. BRIEFLY STATED, THE ASSESSEE COMPANY IS ENGAGED IN THE ELIGIBLE BUSINESS OF DEVELOPMENT, OPERATION AND MAINTENANCE OF AN INFRASTRUCTURE FACILITY VIZ. RAILWAY SIDING/LOGISTI C PARK/INTEGRATED RAIL SYSTEM UNDER PRIVATE SIDING AGREEMENTS (PSAS) WITH INDIAN RAILWAYS AT THREE LOCATIONS: (I) SILIYARGI (CG)- DATE OF COMMENCEMENT OF OPERATI ONS : 16.04.2007 (INITIAL ASST. YR. 2008-09); (II) BHUPDEOPUR, RAIGARH (CG) DATE OF COMMENCEMEN T OF OPERATIONS : 02.12.2008 (INITIAL ASST. YR. 2009-10) ; & (III) TADALI, CHANDRAPUR (MH) DATE OF COMMENCEMEN T OF OPERATIONS : 01.03.2011 (INITIAL ASST. YR. 2011-12) . 4.1 THE ASSESSEE ACCORDINGLY CLAIMED THAT HAVING SA TISFIED THE PRESCRIBED CONDITIONS, DEDUCTION U/S. 80IA(4) OF TH E ACT WAS ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 4 - CLAIMED IN VARIOUS ASSESSMENT YEARS FOR THE RESPECT IVE LOCATIONS/SITES AS POINTED OUT ABOVE. IN THE RETUR N OF INCOME FOR AY 2015-16, THE ASSESSEE INTER ALIA CLAIMED DEDUCTION UNDER S.80IA(4) OF THE ACT FOR WHICH FORM NO.10CCB WAS FILED AS REQ UIRED. THE ASSESSMENT WAS CARRIED OUT BY THE AO UNDER S.143(3) OF THE ACT DATED 29.12.2017 WHEREIN THE AO ALLOWED THE CLAIM O F DEDUCTION UNDER S.80IA(4) OF THE ACT FOR THE VARIOUS LOCATION S/SITES AS CLAIMED. 5. THEREAFTER, THE PCIT IN EXERCISE OF ITS REVISION ARY POWERS, ISSUED SHOW CAUSE NOTICE DATED 22.03.2021 UNDER S.2 63 OF THE ACT REQUIRING THE ASSESSEE TO SHOW CAUSE AS TO WHY THE IMPUGNED ASSESSMENT SO FRAMED UNDER S.143(3) OF THE ACT DATE D 29.12.2017 SHOULD NOT BE MODIFIED/SET ASIDE ON THE GROUND THAT SUCH ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. 6. THE PCIT WAS NOT SATISFIED WITH THE REPLY OF THE ASSESSEE FOR DROPPING THE PROCEEDINGS UNDER S.263 OF THE ACT. T HE ASSESSMENT ORDER WAS ACCORDINGLY SET ASIDE AND REMANDED BACK T O THE AO TO VERIFY THE FOLLOWING: 1. IN RESPECT OF 80G ISSUE: THE ASSESSEE HAS FURNI SHED THE EVIDENCE OF PAYMENT OF DONATION OF RS. 58,29,019/- IN PRIME MINISTER RELIEF FUND DURING THE REVISION PROCEEDINGS. THE A. O MAY CONSIDER THE DEDUCTION AFTER PROPER VERIFICATION. 2. IN RESPECT OF CLAIM U/S 80IA : THE A.O. MAY VERI FY FORM 10CC AND INITIAL YEARS ASSESSMENT ORDERS OF EACH BUSINES S BASED ON THE CONTRACT ENTERED WITH RAILWAYS. 3. IN RESPECT OF THE EXPENDITURE CLAIMED UNDER FRE IGHT / TRANSPORTATION EXPENSES AND RAILWAY CHARGES:- THE A SSESSEE SUBMITTED THAT THESE EXPENSES ARE IN THE NATURE OF EXPENSES TOWARDS TRANSPORTATION OF MATERIAL FOR MAINTENANCE OF SIDINGS AND SOME PART OF IT IS IN THE NATURE OF INDENT CHAR GES PAID TO RAILWAYS ON BEHALF OF ITS CLIENT. THE A.O MAY CONSI DER THE ASSESSEE SUBMISSION AFTER VERIFICATION. ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 5 - THE ORIGINAL ASSESSMENT WAS THUS SET ASIDE ON ABOVE POINTS AND THE AO WAS ACCORDINGLY DIRECTED TO PASS A FRESH ORDER I N TERMS OF DIRECTIONS NOTED ABOVE. 7. AGGRIEVED BY THE AFORESAID ACTION OF THE PCIT, T HE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGITATING THE SUPERVI SORY JURISDICTION USURPED BY THE PCIT UNDER S.263 OF THE ACT. 8. THE LEARNED COUNSEL FOR THE ASSESSEE BROADLY REI TERATED ITS DETAILED SUBMISSIONS MADE BEFORE THE PCIT AND SUBMI TTED THAT THE PCIT HAS MIS-DIRECTED HIMSELF IN LAW AND FACTS IN R ESORTING THE REVISIONAL JURISDICTION IN THE INSTANT CASE ON VAGU E AND NON-DESCRIPT DIRECTIONS WITHOUT SHOWING ANY ERROR AND WHERE THE ISSUE WAS PROPERLY EXAMINED IN THE ASSESSMENT PROCEEDINGS. W E SHALL APPROPRIATELY REFER AND DEAL WITH THE VARIOUS FACET S OF THE ARGUMENTS IN SUCCEEDING PARAGRAPHS. 9. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HAN D, RELIED UPON THE REVISIONAL ORDER PASSED BY THE PCIT. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED THE REVISIONAL ORDER PASSED BY THE CIT UNDE R S.263 OF THE ACT AS WELL AS OTHER MATERIALS REFERRED TO AND RELI ED UPON BY THE RESPECTIVE PARTIES AND CASE LAWS CITED. 10.1 FIRST ISSUE CONCERNS IMPROPER ALLOWANCE OF DED UCTION UNDER S.80IA OF THE ACT. AS NOTED EARLIER, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPING, OPERATING AND MAINTAINING A LOGISTIC PARK (RAILWAY SIDING/INTEGRATED RAIL SYSTEM) UNDER AN AG REEMENT WITH SOUTH EAST CENTRAL RAILWAY, LOCATION AT SILYARI (C. G.), BHUPDEOPUR, RAIGARH (CG) & TADALI, CHANDRAPUR (MAH.). THE ASSES SEE COMPANY STARTED OPERATIONS OF ITS LOGISTICS PARK (RAILWAY S IDING) AT SILIYARI ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 6 - WITH EFFECT FROM 16TH APRIL, 2007 I.E. ASSESSMENT Y EAR 2008-09, LOGISTICS PARK (RAILWAY SIDING) AT BHUPDEOPUR, RAIG ARH WITH EFFECT FROM 2 ND DECEMBER, 2008 I.E. ASSESSMENT YEAR 2009-10 & LOG ISTICS PARK (RAILWAY SIDING) AT TADALI, CHANDRAPUR WITH EF FECT FROM 1ST MARCH, 2011 I.E. ASSESSMENT YEAR 2011-12 I.E. IN EA RLIER ASSESSMENT YEARS. DURING THE ASSESSMENT YEAR UNDER REFERENCE, THE ASSESSEE COMPANY HAS BEEN CONTINUING WITH THE ELIGIBLE BUSIN ESS OF DEVELOPMENT, OPERATION & MAINTENANCE OF INFRASTRUCT URE FACILITY VIZ. LOGISTIC PARKS (RAILWAY SIDINGS/INTEGRATED RAI L SYSTEMS) ON WHICH DEDUCTION UNDER S.80IA(4) OF THE ACT WAS CLAI MED AND ASSESSED. THE ASSESSEE COMPANY WAS THUS DULY ENTITL ED TO DEDUCTION FROM THEIR GROSS TOTAL INCOME UNDER SECTION 80-IA O F THE INCOME TAX ACT BEING DEVELOPER OF AN INFRASTRUCTURE FACILI TY IN RESPECT OF ALL ITS RAILWAY SIDINGS VIZ. SILYARI, BHUPDEOPUR AN D TADALI RAILWAY SIDINGS SINCE, THE PRESCRIBED TAX HOLIDAY PERIOD OF TEN CONSECUTIVE ASSESSMENT YEARS BEGINNING FROM THE YEAR IN WHICH T HE SAID UNDERTAKINGS (SIDINGS IN THE INSTANT CASE) HAVE COM MENCED THEIR OPERATIONS AND CHOSEN THE INITIAL ASSESSMENT YEAR H AS NOT BEEN COMPLETED TILL THE ASSESSMENT YEAR UNDER REFERENCE. THE ASSESSEE HAS ACCORDINGLY CONTINUED ITS CLAIM ON THE ELIGIBLE DEDUCTION TO THE EXTENT OF RS.15,90,24,621 /- IN ITS RETURN OF INCOM E. 10.2 IN THIS BACKGROUND, IT IS THE CASE OF THE ASSE SSEE THAT: (I) THE ASSESSMENT UNDER REFERENCE AND REVISION WAS SELECTE D FOR SCRUTINY THROUGH CASS; (II) NOTICE UNDER S.142(1) OF THE ACT WAS ISSUED DATED 10TH JULY, 2017 RAISING MULTIPLE QUESTIONS IN CLUDING CLAIM OF DEDUCTION 80IA OF THE ACT SEEKING THE DETAILS TOWAR DS DEDUCTION WITH PROPER JUSTIFICATION OF CLAIM ALONGWITH SUPPOR TING EVIDENCE. IN RESPONSE, THE ASSESSEE FILED SUBMISSIONS SUPPORTED BY THE EXTENSIVE DOCUMENTARY EVIDENCES SPECIFICALLY ADDRESSING THE I SSUE OF JUSTIFIABILITY OF CLAIM OF DEDUCTION. A COPY OF AS SESSMENT ORDERS ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 7 - PASSED UNDER S.143(3) OF THE ACT FOR EARLIER ASSESS MENT YEARS BEGINNING FROM A.Y. 2008-09 ONWARDS WERE FILED WHER EIN SIMILAR CLAIM UNDER S.80IA OF THE ACT WAS CLAIMED; (III) FO RM NO.10CCB IN RESPECT OF EACH ELIGIBLE UNDERTAKING (BEING RAILWAY SIDINGS) WITH THE UNDERTAKING-WISE/BUSINESS-WISE P&L ACCOUNT DULY AUDITED AND CERTIFIED BY THE CHARTERED ACCOUNTANT FILED; & (IV) SEPARATE BOOKS OF ACCOUNTS IN RESPECT OF EACH UNDERTAKING WERE PRO DUCED. 10.3 FURTHER ENQUIRIES WERE MADE BY AO IN THE IMPUG NED DEDUCTION. IN PURSUANCE OF ANOTHER NOTICE DATED 22 ND OCTOBER, 2020 WITH SPECIFIC EMPHASIS ON ALLOWABILITY OF DEDUCTION CLAIMED UNDER S.80IA OF THE ACT, FURTHER CLARIFICATIONS WERE PROV IDED. ANOTHER NOTICE UNDER S.142(1) OF THE ACT DATED 03RD NOVEMBE R, 2017 WAS SEEKING YET ANOTHER DETAILS. IT IS THUS THE CASE O F THE ASSESSEE THAT THE ENTIRE CONSPECTUS OF THE CASE ALONGWITH IN DEPT H EXAMINATION OF COMPLETE BOOK OF ACCOUNTS AND SEPARATE BOOKS OF ACC OUNTS AND FORM NO. 10CCB ETC. WAS LOOKED INTO. IT WAS AFTER CAREF UL EXAMINATION OF RELEVANT CLAUSES OF AGREEMENTS ENTERED WITH SECR /CR IN RESPECT OF RAILWAY SIDINGS, VALUING CAPITAL COSTS, COST INC URRED TOWARDS SETTING UP ON SIDINGS ETC. THE DEDUCTION CLAIMED UN DER S.80IA(4) OF THE ACT WAS ALLOWED AFTER PARTICULAR CONSIDERATION OF PAST ASSESSMENT HISTORY CONSISTENTLY ALLOWING DEDUCTION IN THE PRECEDING ASSESSMENT YEARS ETC. IN THE IDENTICAL FACTUAL MATR IX. 10.4 IT IS ALSO ASSERTED ON BEHALF OF THE ASSESSEE THAT ONCE PRE- REQUISITE CONDITIONS STIPULATED UNDER S.80IA OF THE ACT IS SATISFIED AND ALLOWED IN INITIAL ASSESSMENT YEARS, DEDUCTION COULD NOT BE WITHDRAWN UNDER S. 143(3) OF THE ACT UNTIL THE FINA LITY ACHIEVED IN INITIAL ASSESSMENT YEAR IS DISTURBED. CONSEQUENTLY , THE ACTION OF AO BEING PLAUSIBLE IN LAW COULD NOT BE DISTURBED UNDER S.263 OF THE ACT. FOR THIS PROPOSITION, FOLLOWING DECISIONS HAVE BEEN RELIED UPON: ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 8 - (A) CIT VS. PAUL BROTHERS (1995) 216 ITR 548 (BOM.H C) (B) SIMPLE FOOD PRODUCTS (P.) LTD. VS. CIT (2017) 84 TAXMANN.COM 239 (BOM.HC) (C) MANILAL DAYATJI & COMPANY VS. CIT IN ITA NO.32/ RPR/2014 (DATE OF ORDER : 09.03.2018) (1TAT RAIPUR) (D) K. RAHEJA IT PORK (HYDERABAD) PVT. LTD. VS. DCI T IN ITA NO.691/HYD/2016 (DATE OF ORDER: 06.05.2021) (ITAT H YDERABAD) 10.5 IT IS FURTHER CONTENDED THAT DEDUCTION U/S.80I A OF THE ACT WAS ALLOWED IN THE CASE OF PRIVATE RAILWAY SIDINGS TREA TING IT AS ELIGIBLE INFRASTRUCTURE FACILITY' PREVIOUSLY DENIED IN SECT ION 263 ORDERS: (A) M/S. JSW STEEL LTD. VS. PR.CIT IN ITA NO. 4062, 4063, 4064 & 4086/MUM/2017 (DATE OF ORDER: 02.05.2018) (ITAT KOL KATA) (B) M/S. RASHMI METALIKS LTD. VS. DCIT IN ITA NO. 8 13 TO 816/KOL/2017 (DATE OF ORDER: 02.05.2018) (ITAT KOLK ATA) 10.6 IN THIS BACKGROUND, IT IS CONTENDED THAT IN TH E INSTANT CASE, WHERE THE NECESSARY ENQUIRIES WERE CONDUCTED BY THE AO AND THE ASSESSMENT ORDER WAS PASSED AFTER CONSCIOUS APPLICA TION OF MIND, ASSUMPTION OF JURISDICTION BY PCIT IS NOT VALID HAV ING REGARD TO THE SCOPE OF REVISIONAL PROCEEDINGS UNDER S.263 OF THE ACT AS ECHOED IN; (A) MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83 (SC) (B) CIT VS. MAX INDIA LIMITED (2007) 295 ITR 282 (S C) (C) CIT VS. KWALITY STEEL SUPPLIERS COMPLEX (201 7) 395 ITR 1 (SC) (D) CIT VS. GABRIAL INDIA LTD. (1993) 203 ITR 108 ( BOM.HC) 10.7 IT IS NEXT ASSERTED THAT THE INSTANT CASE IS N OT A CASE OF LACK OF ENQUIRY. THE ALLEGATION OF THE PCIT IS TOWARDS INA DEQUACY IN PROPER ENQUIRY. THE PCIT DESPITE HAVING DIRECT AND CLINCHING EVIDENCE HAS NOT CARRIED OUT EVEN POINTED OUT ANY P ARTICULAR ERROR IN THE ACTION OF THE AO AND HAS NOT CARRIED OUT EVEN A MINIMAL ENQUIRY HIMSELF AS EXPECTED FROM HIM TO DESCRIBE THE EXACT NATURE OF ERROR. FOR THIS PROPOSITION, RELIANCE WAS PLACED ON THE FO LLOWING DECISIONS: (A) PCIT VS. DELHI AIRPORT METRO EXPRESS PVT. LTD. (201 7) 398 ITR 8 (DEL. HC) (B) ITO VS. D.G.HOUSING PROJECTS LTD. (2012) 343 IT R 329 (DEL.HC) ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 9 - (C) PR.CIT VS. M/S.BRAHMA CENTRE DEVELOPMENT PVT. L TD. IN ITA NO.116/2021 & 118/2021 (DEL.HC) (DATE OF JUDGMENT : 05.07.2021) 11. ON APPRAISAL OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND CASE LAWS NOTED ABOVE, WE FIND THAT AO HAD CARRIED OUT SPECIFIC ENQUIRIES WITH REGARD TO DEDUCTION CLAIMED UNDER S. 80IA(4) OF THE ACT AND IT WAS ONLY AFTER HE WAS SATISFIED WITH THE PROPRIETY OF THE CLAIM, THE CONTINUING DEDUCTIONS CLAIMED BY THE ASS ESSEE LEFT UNDISTURBED. SIGNIFICANTLY, AY 2015-16 IN QUESTIO N IS NOT THE FIRST YEAR FOR CLAIM OF DEDUCTION UNDER S.80IA(4) OF THE ACT. THE ASSESSEE HAS CLAIMED DEDUCTION IN RESPECT OF DIFFER ENT SITES FROM VARIOUS INITIAL ASSESSMENT YEARS NOTED EARLIER AND NO CHANGE IN CIRCUMSTANCES WAS NOTED BY THE PCIT WHICH IS WARRAN TED IN A SETTLED POINT. THUS, THE ACCEPTANCE OF CONTINUITY OF CLAIM UNDER S.80IA(4) OF THE ACT CANNOT BE SEEN WITH ANY CONCERN WITHOUT SHOWING DEVIATION IN FACTS. IT IS FURTHER SEEN THAT PRIVAT E RAILWAY SIDINGS HAVE BEEN TREATED AS ELIGIBLE INFRASTRUCTURE FACILI TY FOR THE PURPOSES OF SECTION 80IA(4) OF THE ACT BY THE CO-ORDINATE BE NCHES. LASTLY, THE PURPORT OF ENQUIRY DIRECTED BY THE PCIT IS TOTA LLY UNINTELLIGIBLE. THE PCIT HIMSELF HAS NOT CARRIED OUT ANY EXAMINATIO N OR VERIFICATION OF FACTS AND HAS SIMPLY DIRECTED THE A O TO MAY VERIFY FORM 10CC AND INITIAL YEARS ASSESSMENT ORDERS OF EA CH BUSINESS BASED ON THE CONTRACT ENTERED WITH RAILWAYS . THE PCIT HAS MERELY SET ASIDE TO INDULGE IN VERIFICATION OF THE SAME FACTS YET AGAIN WITHOUT CITING AS TO HOW THE AO HAS COMMITTED ANY ERROR EXCEPT ALLEGING NO PROPER ENQUIRY. 12. NEEDLESS TO SAY, THE ASSESSMENT ORDER CAN BE IN TERDICTED UNDER S.263 OF THE ACT ONLY WHERE BOTH THE CONDITIONS ARE MET I.E. ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS O F THE REVENUE. NO ERROR HAS BEEN SHOWN BY THE PCIT EXCEPT ABSENCE OF PROPER ENQUIRY. ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 10 - AS NOTED, THE ISSUE OF DEDUCTION HAS BEEN FOUND TO BE CONTINUING SINCE LAST MANY ASSESSMENT YEARS AND NECESSARY DOCU MENTATIONS FOR CLAIM / DEDUCTION HAS BEEN PLACED ON RECORD AND EXA MINED BY THE AO. NO INCONSISTENCY IN THE ACTION OF THE AO HAS B EEN SHOWN WHICH CAN RENDER HIS ACTION TO BE ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. IT IS TRITE THAT THE ERRO R SHOULD BE ONE THAT NO DEBATABLE OR A PLAUSIBLE VIEW. SECTION 263 OF THE ACT CONFERS A POWER OF REVISION IN A SUPERIOR OFFICER AND THEREFO RE, BY THE NATURE OF THE POWER, DOESNT ALLOW FOR SUPPLANTING OR SUBS TITUTING THE VIEW OF THE AO. THE APPRECIATION OF MATERIAL PLACED BEF ORE THE AO IS EXCLUSIVELY WITHIN HIS DOMAIN AS A QUASI JUDICIAL FUNCTION, WHICH CANNOT BE INTERDICTED BY THE SUPERIOR OFFICER WHILE EXERCISING POWERS UNDER S.263 OF THE ACT ONLY ON THE GROUND TH AT, PLACED ON THE POSITION OF AO, HIS APPRAISAL WOULD HAVE YIELDED DI FFERENT CONCLUSIONS. THOUGH, THE LAW IS SAME FOR ALL, HOWE VER, AS NO TWO PERSONS POSSIBLY THINK ALIKE, VARIANCE IN THEIR ANA LYSIS, UNDERSTANDING AND APPLICATION OF LAW IN SAME OR SIM ILAR FACTUAL MATRIX BY ITSELF WOULD NOT EMPOWER A SUPERIOR AUTHO RITY TO DISPLACE THE VIEW OF THE LOWER AUTHORITY. THIS APART, IN TH E ABSENCE OF ANY REASON SHOWING ERROR IN THE ASSESSMENT ORDER, THERE WAS NO WARRANT FOR A PCIT TO INTERFERE WITH THE ORDER UNDER S.143( 3) OF THE ACT. THE ACTION OF THE PCIT UNDER S.263 OF THE ACT IS TH US FOUND TO BE WITHOUT JURISDICTION AND CONSEQUENTIAL ORDER THUS P ASSED IS SET ASIDE. 13. AS REGARDS THE CLAIM OF DEDUCTION UNDER S.80G O F THE ACT, IT IS AN ADMITTED POSITION THAT THE CLINCHING EVIDENCE IN THE FORM OF RECEIPT FROM THE DONOR WAS AVAILABLE BEFORE THE PCI T. THE PCIT HAS SIMPLY OBSERVED THAT THE AO MAY CONSIDER DEDUCTION AFTER PROPER VERIFICATION . THE NATURE OF VERIFICATION IS NOT SPECIFIED. SUCH MUNDANE AND DIRECTIONLESS OBSERVATIONS IN THE REVISIONAL ITA NO. 18/RPR/2021 (M/S. VIMLA INFRASTRUCTURE (INDIA) PVT. LTD. VS. PCIT) A.Y. 2015-16 - 11 - PROCEEDINGS ARE NEITHER HERE NOR THERE, IN THE ABSE NCE OF ANY ELABORATION OF THE GROUNDS FOR NOT ENTERTAINING THE DEDUCTION. THIS GROUND FOR REVISIONS IS THUS SET ASIDE. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. SD/- SD/- (N. K. CHOUDHRY) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAIPUR TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RAIPUR 5. 267 8 / GUARD FILE. BY ORDER 4 SR. PRIVATE SECRETARY ITAT 4 RAIPUR (ON TOUR) ORDER PRONOUNCED ON 29 /09/2021 BY PLACING THE RESULT ON THE NOTICE BOARD AS PER RULE 34(5) OF THE INCOME TA X (APPELLATE TRIBUNAL) RULE, 1963.