M/s Jaypee Infratech Ltd, Noida V. ACIT, Noida

ITA 3126/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4411 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 18-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C D AN DE
• Assessee Lawyers: V K GARG; A K CHOPRA
• Keywords: Depreciation
• Section: 143(3); 142(1); 263; 10

Judgement Text

1 ITA NO. 3126/DEL/201 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 3126/DEL/201 5 ( A.Y 2010-11) JAYPEE INFRATECH LTD. SECTOR 128 NOIDA AABCJ9042R (APPELLANT) VS ACIT CIRCLE 1 NOIDA (RESPONDENT) APPELLANT BY SH. A. K. CHOPRA, ADV & SH. V. K. GARG, ADV RESPONDENT BY SH. R. C. DANDE, SR. DR ORDER PER SUCHITRA KAMBLE, JM THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER DATED 17/3/2015 PASSED BY PR. COMMISSIONER OF INCOME TAX- NOIDA FOR ASSESSMENT YEAR 2010- 11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE LEARNED CIT (LD. CIT) HAS ERRED ON FAC TS AND IN LAW IN SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO. 2. THAT THE ORDER OF LD. CIT IS UNLAWFUL AND BEYOND PERMISSIBLE JURISDICTION UNDER SECTION 263 OF THE INCOME TAX ACT (ACT). THE ORDER OF LEARNED ASSESSING OFFICER (LD. AO) IS NOT AN ERRONEOUS ORDER PREJUDIC IAL TO THE INTEREST OF THE DATE OF HEARING 03.08.2017 DATE OF PRONOUNCEMENT 20.09.2017 2 ITA NO. 3126/DEL/201 5 REVENUE WITHIN THE MEANING OF SECTION 263 OF THE AC T. AS SUCH TOO, THE ORDER OF LD. CIT IS UNLAWFUL AND IS LIABLE TO BE QUASHED. 3. THAT THE LD. CIT HAS REFERRED TO AND RELIED UPON THE ORDER IN A.Y. 2009-10 OF THE LD. CIT U/S 263 ON SIMILAR ISSUES. THE SAID ORDER OF THE LD. CIT IN A.Y. 2009-10 HAS BEEN QUASHED BY THE HONBLE ITAT VIDE O RDER DATED 13.04.2015 IN ITA NO. 333/DEL/2014. IN VIEW OF THE PRECEDENT O F THE HONBLE ITAT IN THIS APPELLANTS CASE IN THE APPELLANTS FAVOUR, THE ORD ER UNDER APPEAL IS UNLAWFUL, WITHOUT MERIT AND DESERVES TO BE QUASHED ON ALL THE ISSUES INVOLVED. 4. THAT THE ASSESSMENT UNDER SECTION 143(3) HAS BEE N PROCESSED BY THE LD. AO AFTER DULY CONSIDERING THE MATERIAL, EXPLANATION S AND SUBMISSIONS ON RECORD INCLUDING IN CONTEXT OF APPLICABLE LAW. MERE DIFFERENCE IN VIEW BETWEEN THE LD. CIT AND LD. AO CANNOT FORM THE BASIS OF ACT ION UNDER SECTION 263. PROVISIONS OF SECTION 263 DO NOT PERMIT SUBSTITUTIO N OF THE LD. CITS OPINION FOR THE OPINION OF LD. AO, PARTICULARLY WHEN THE VIEW O F THE LD. CIT ARE CONTRARY TO THE RECORD, TO PRECEDENTS AND CASE LAWS IN APPEL LANTS FAVOUR AND CONTRARY TO THE PROVISIONS OF THE ACT. 5. THAT THE APPELLANT IS ENTITLED TO THE DEDUCTION UNDER SECTION 80IA(4) AS ALLOWED BY THE LD. AO. APPELLANT IS ENTITLED TO ITS CLAIM INTER ALIA IN VIEW OF PRECEDENTS IN FAVOUR OF THE APPELLANT. AS SUCH TOO, THE LD. CIT HAS ERRED IN INVOKING JURISDICTION UNDER SECTION 263 AND SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO. MOREOVER, IT IS SETTLED LAW THAT E VEN IF TWO VIEWS ARE REASONABLY' POSSIBLE, THE VIEW FAVOURING THE APPELL ANT IS TO BE ADOPTED AND FURTHER THE BENEFICIAL PROVISIONS OF DEDUCTIONS FRO M TAXABLE INCOME TO PROMOTE INVESTMENT IN AND DEVELOPMENT OF INFRASTRUCTURE FAC ILITY ARE TO BE INTERPRETED LIBERALLY, SO AS TO ADVANCE THEIR OBJECTIVES. 6. THAT, INTER ALIA, THE APPELLANT IS ENTITLED TO D EDUCTION U/S 80IA( 4) ON THE FACTS AND LAW INVOLVED AS A DEVELOPER OF THE INFRAS TRUCTURE FACILITY, EVEN IF IT HAS NOT COMMENCED OPERATING AND MAINTAINING BUT IS DEVELOPING THE SAME, IN VIEW OF DIRECT DECISIONS IN ITS FAVOUR INCLUDING IN TER ALIA REPORTED IN ACIT V. 3 ITA NO. 3126/DEL/201 5 BHARAT UDYOG LTD. 118 ITD 336 WHICH FOLLOWS THE DEC ISION OF THE HON'BLE APEX COURT IN K. P. VERGHESE V. ITO 131 ITR 597 (SC ) AND AS HELD IN TRG INDUSTRIES (P) LTD. V. DCIT (2013) 35 TAXMANN.COM 2 53 (AMRITSAR - TRIBUNAL) AND SAID DECISION OF THE HONBLE ITAT IN APPELLANT S OWN CASE IN AY 2009-10. 7. THAT THE LD. CIT HAS ERRED IN MAKING CERTAIN ERR ONEOUS OBSERVATIONS REGARDING ELIGIBILITY OF INTEREST INCOME DEDUCTION U/S 80IA, REGARDING NETTING OF INTEREST EXPENSE WITH INTEREST INCOME, REGARDING DEDUCTION OF DEPRECIATION AND REGARDING REASONABLENESS OF PAYMENTS TO JAIPRAK ASH INDUSTRIES LTD. IN CONTEXT OF APPLICABILITY OF SECTION 40A(2)(B). THE LD. CIT HAS ERRED IN STATING THAT THE LD. AO HAS NOT EXAMINED WHETHER INTEREST W AS DEDUCTIBLE UNDER SECTION 80IA, WHETHER SECTION 40A(2)(B) WAS APPLICA BLE AND WHETHER DEPRECIATION WAS ADMISSIBLE. 8. THAT THE ABOVE CLAIMS AS IN GROUND 7 HAVE BEEN P ROCESSED AND CORRECTLY ALLOWED AFTER DUE CONSIDERATION. THERE IS NO FINAL FINDING BY THE LD. CIT THAT THESE CLAIMS ARE INCORRECT. THE ASSESSEE WAS DULY E NTITLED TO THESE CLAIMS WHICH ARE CORRECTLY ALLOWED AND AS SUCH TOO SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO IS UNLAWFUL AND THE ORDER OF THE LD . CIT DESERVES TO BE QUASHED. 9. THAT THE ORDER OF THE LD. CIT IS BASED ON ERRONE OUS VIEWS AND NON APPRECIATION OF THE FACTS AND LAW INVOLVED INCLUDIN G BINDING CASE LAW SUPPORTING THE APPELLANT WHICH INCLUDE DECISIONS OF THE HON'BLE APEX COURT AND HON'BLE JURISDICTIONAL HIGH COURTS. INTER ALIA THE LD. CIT HAS ERRED IN NOT FOLLOWING THE RATIO OF THE DECISION IN 131 ITR 597 (SC) IN THE CASE OF K.P. VARGHEESE V. ITO. AS SUCH TOO, THE ASSESSEE'S CLAIM UNDER SECTION 80IA(4) HAS BEEN CORRECTLY ALLOWED BY THE LD. AO AS ALSO HELD B Y THE HONBLE ITAT IN ITS SAID ORDER IN A.Y. 2009-10 IN APPEAL AGAINST ORDER OF LD. CIT U/S 263. THE LD. CIT HAS ERRED IN SETTING ASIDE THE ASSESSMENT. 10. THAT THE ORDER OF THE LD. CIT, SETTING ASIDE TH E ASSESSMENT TO BE MADE DE NOVO, RATHER THAN GIVING A FINAL FINDING IS UNLAWFU L, AS ALSO HELD BY THE 4 ITA NO. 3126/DEL/201 5 HONBLE ITAT IN THE SAID APPEAL IN APPELLANTS CASE IN A.Y. 2009-10 FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN GLO BUS INFOCOM LTD. 369 ITR14. 11. THAT WITHOUT PREJUDICE, IN THE ALTERNATIVE, AS THE APPELLANT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(6) , EVEN AS PER THE V IEW OF THE LD. CIT, THEN IN ANY CASE ON THE FACTS AND LAW INVOLVED, THE ASSESSE E IS ENTITLED TO RELIEF AND DEDUCTION IN THIS MATTER, BE IT UNDER 80IA(4) OR 80 IA(6). SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO IS UNLAWFUL, UNCALLED FOR AND WOULD BE MERELY AN ACADEMIC EXERCISE IF PERMITTED. 12. THAT THE GROUNDS OF APPEAL AS HEREIN ARE WITHOU T PREJUDICE TO EACH OTHER. 3. THE ASSESSEE COMPANY IS AN INFRASTRUCTURE COMPAN Y ENGAGED IN THE BUSINESS OF DEVELOPMENT, OPERATION AND MAINTENANCE OF THE SIX-LANE ACCESS CONTROLLED EXPRESSWAY ALONG WITH SERVICE ROAD AND A SSOCIATED STRUCTURES AND SALE/DEVELOPMENT OF LEASEHOLD LAND ALONG THE PROPOS ED EXPRESSWAY. THE COMPANY WAS INCORPORATED ON 5 TH APRIL, 2007. THE ASSESSEE COMPANY IS A SUBSIDIARY OF M/S JAI PRAKASH ASSOCIATES LTD. DURIN G THE YEAR, GROSS TURNOVER AT RS. 6,40,65,46,500/-, AND AS PER PROFIT AND LOSS ACCOUNT NET PROFIT WAS SHOWN AT RS. 5,87,34,77,424/-. THE ASSESSE FILED RETURNS DECLARING TAXABLE INCOME OF RS. NIL ON 14.10.2010 THROUGH E-FILLING. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS. ACCORDINGLY, NO TICE U/S 143(2) OF THE I.T. ACT, 1961 WAS ISSUED ON 06.09.2011 AND SERVED UPON THE ASSESSEE. SUBSEQUENTLY, NOTICES U/S 143(2) AND 142(1) ALONG W ITH QUESTIONNAIRE WERE ALSO ISSUED REQUIRING THE ASSESSEE TO FURNISH CERTA IN DETAILS/INFORMATION. IN RESPONSE TO THE SAME, THE ASSSESSEES REPRESENTATIV ES ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FURNIS HED DETAILS AND REPLIES TO THE QUERIES RAISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. BOOKS OF ACCOUNTS WITH BILLS/ VOUCHERS WERE PRODUCED. THE RE PLIES SUBMITTED BY THE ASSESSEE WERE GONE THROUGH BY THE ASSESSING OFFICER ALONG WITH THE CONCESSION AGREEMENT AND ASSIGNMENT AGREEMENT WITH THE STATE GOVERNMENT 5 ITA NO. 3126/DEL/201 5 RELATING TO YAMUNA EXPRESSWAY WHICH IS CONNECTING N OIDA TO AGRA IN THE STATE OF UTTAR PRADESH. THE ASSESSING OFFICER HELD THAT T HE ASSESSEE FURNISHED NECESSARY DETAILS/DOCUMENTS IS RESPECT OF ITS CLAIM OF DEDUCTION U/S 80IA IN RESPECT OF ITS ELIGIBLE BUSINESS U/S 80IA(4) OF THE IT ACT, 1961 THEREFORE, ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT. THEREFORE, ASSESSEE'S CLAIM OF DEDUCTION U/S 80IA WAS ACCEPTED BY THE ASS ESSING OFFICER. AN ORDER UNDER SECTION 263 OF THE ACT WAS PASSED ON 30.03.20 14 FOR A.Y. 2009-10 IN WHICH IT WAS HELD THAT THE ASSESSING OFFICER IN THA T YEAR, HAD PASSED AN ORDER WHICH WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, INSOFAR AS THE ALLOWANCE OF DEDUCTION UNDER SECTION 80IA OF THE AC T WAS CONCERNED AS ALSO FOR THE REASON THAT SUCH DEDUCTION HAS BEEN ALLOWED IN RESPECT OF INELIGIBLE INCOME AND DEPRECIATION HAD BEEN ALLOWED EVEN WHILE THE PROJECT WAS INCOMPLETE. 4. IN THE BACKDROP OF THE SAID ORDER, THE ASSESSMEN T RECORDS FOR THE YEAR UNDER CONSIDERATION WERE EXAMINED BY THE PR. COMMIS SIONER OF INCOME TAX AND A QUESTIONNAIRE DATED 05.11.2012 WAS ISSUED IN THE CA SE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS WHEREBY THE CA SE OF PAYMENTS, COVERED UNDER SECTION 40A(2)(B) OF THE ACT AND THE REASONAB LENESS OF SUCH EXPENSES; THE DETAILS OF LOANS AND ADVANCES ALONG WITH THE DE TAILS OF INTEREST; DETAILS OF SUNDRY DEBTORS OF MORE THAN RS 25 LACS; AND DETAILS OF DEDUCTION CLAIMED, IF ANY, UNDER CHAPTER VIA OF THE ACT ALONG WITH JUSTIF ICATION STATING AS WHY THE DEDUCTION CLAIMED BE ACCEPTED BY THE DEPARTMENT, WE RE CALLED FOR. FROM THE DETAILS FURNISHED, THE PR. COMMISSIONER OF INCOME T AX OBSERVED THAT PAYMENTS MADE TO M/S JAI PRAKASH ASSOCIATES LTD, A PARTY COV ERED UNDER SECTION 40A(2)(B) OF THE ACT OF RS 21,11,49,36,781 WAS A DE BTOR TO THE EXTENT OF RS 102,63,50,000 AND FURTHER LOANS AND ADVANCES WAS GI VEN TO THE PARTY AMOUNTING TO RS 420,00,00,000. AS REGARDS THE RESPO NSE TO THE QUERY REGARDING THE REASONABLENESS OF PAYMENT MADE TO REL ATED PARTIES, A STATEMENT WAS GIVEN THAT SUCH PAYMENTS ARE 'REASONABLE, ESSEN TIAL AND INCURRED DURING THE COURSE OF BUSINESS'. AS REGARDS THE QUERY REGAR DING DEDUCTION UNDER 6 ITA NO. 3126/DEL/201 5 CHAPTER VIA OF THE ACT, IT WAS STATED THAT THE COMP ANY HAS CLAIMED THE DEDUCTION AND THE REQUISITE AUDITOR CERTIFICATE WAS ENCLOSED IN FORM NO 10CCB. A SHOW CAUSE NOTICE ON 19/1/2015 WAS ISSUED TO THE ASSESSEE INVITING OBJECTIONS. THE RESPONSE TO THE SHOW CAUSE NOTICE WAS FILED VIDE LETTERS DATED 17.02.2015 & TWO LETTERS BOTH DATED 03.03.201 5. FIRSTLY, IT WAS STATED THAT TWO ASSESSING OFFICERS, IN THE PRECEDING ASSES SMENT YEAR AND THE ASSESSMENT YEAR UNDER CONSIDERATION, HELD THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA (4) (I) OF THE ACT REA D WITH THE EXPLANATION (A) THEREOF. IT WAS CONTENDED THAT THE FIRST YEAR IN WH ICH THE DEDUCTION HAD BEEN CLAIMED WAS IN THE PRECEDING YEAR AND DETAILED EXPL ANATIONS WAS FILED WITH REGARD TO THE ELIGIBILITY OF THE ASSESSEE IN ACCORD ANCE WITH THE AFORESAID PROVISIONS, DURING THE COURSE OF THE REVISIONARY PR OCEEDINGS UNDER SECTION 263 FOR THAT YEAR. THE ORDER PASSED UNDER SECTION 263 F OR THE YEAR WAS CONTESTED IN THE ITAT. IT WAS CONTENDED THAT IN TERMS OF THE CON CESSION AGREEMENT, THE ASSESSEE WAS ENGAGED IN THE DEVELOPMENT OF AN ELIGI BLE INFRASTRUCTURE FACILITY AND THE RIGHTS FOR INCOME FROM THE DEVELOPMENT OF L AND WAS AN INTEGRAL PART OF THE SAID PROJECT. IT WAS REITERATED THAT THE CASE O F THE ASSESSEE FALLS WITHIN THE CLAUSE (A) AND NOT CLAUSE (B) OF THE EXPLANATION, R EFERRED TO ABOVE. IT WAS CONTENDED THAT THE PROVISIONS OF SECTION 80IA (6) O F THE ACT ARE* ATTRACTED FOR THE CASE WHICH FALLS WITHIN CLAUSE (B). THE LIMITS AND REQUIREMENTS OF THAT SECTION ARE NOT APPLICABLE TO THE ASSESSEE COMPANY. AT THE SAME TIME, WITHOUT PREJUDICE TO BE OUT OF CONTENTION, THE ASSESSEE ALS O HAS MADE AN ALTERNATIVE CLAIM UNDER SECTION 80 IA (6). IT HAS ALSO BEEN CON TENDED THAT THE DEDUCTION, BEING A BENEFICIAL PROVISION, OR PROMOTE INVESTMENT IN AND DEVELOPMENT OF INFRASTRUCTURE FACILITY AND THEREFORE, THEY ARE TO BE INTERPRETED LIBERALLY SO AS TO ADVANCE THEIR OBJECTIVES. 5. THE CIT PASSED ORDER U/S 263 OF THE ACT AS UNDER :- 8. IN VIEW OF THE ABOVE, THE ASSESSMENT FRAMED U/S 143(3) OF THE I.T. ACT, 1961 DATED 12/3/2013 IS CONSIDERED ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF REVENUE HAVING BEEN COMPLETED WITHOUT P ROPER APPRECIATION OF 7 ITA NO. 3126/DEL/201 5 THE RELEVANT PROVISIONS OF LAW AND/OR THE BINDING D ECISION OF THE APEX COURT AND WITHOUT PROPER EXAMINATION, WHICH WAS WARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, THE AFORESA ID ASSESSMENT IS SET- ASIDE WITH A DIRECTION TO THE AO TO MAKE A FRESH AS SESSMENT DE-NOVO AFTER PROPER EXAMINATION OF ALL RELEVANT FACTS AND APPREC IATION OF THE PROVISIONS OF LAW, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE . 6. AGGRIEVED BY THIS, THE ASSESSEE FILED APPEAL BEF ORE US. 7. THE LD. AR SUBMITS THAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009- 10 ORDER U/S 263 WAS SET ASIDE BY THE ITAT IN ITA N O.3339/DEL/2014 VIDE ORDER DATED 13.04.2015. THE LD. AR FURTHER SUBMITT ED FOR ASSESSMENT YEAR 2011-12 THE CONTESTING ISSUE WHICH WAS TAKEN INTO A CCOUNT IN THE PRESENT ASSESSMENT YEAR WAS ALSO DECIDED IN FAVOUR OF THE A SSESSEE (ITA NO. 414/DEL/2015 DATED 06.09.2016. THEREFORE, ORDER U/ S 263 DOES NOT SUSTAIN IN THE PRESENT ASSESSMENT YEAR. 8. THE LD. DR COULD NOT CONTROVERT THESE FACTUAL A SPECTS AND THE ORDERS OF THE ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10 & 2011-12. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE TRIBUNALS ORDER IN THE ASSESSEES OWN CASE, THE ISSUE CONTESTED HEREIN IN IS ALREADY DECIDED FOR ASSESSMENT YEAR 20 09-10 BY THIS TRIBUNAL. THE ITAT HELD AS UNDER: 127. IN LIGHT OF AFORESAID DISCUSSION, IF WE ANAL YSE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE OBSERVE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF DEVELOPING, OPERATING AND MAINTA INING INFRASTRUCTURE FACILITY PROJECT SINCE ITS INCORPORATION W.E.F. 5.4 .2007. WE ALSO OBSERVE THAT THE DEVELOPMENT OF THE TOLL ROAD WITH CONTROLLED ACCESS AND EXIT POINTS AND RIGHT TO COLLECT TOLL FROM THE USERS CLEARLY PUT THE EXPRESS WAY WITHIN THE AMBIT OF ROAD WHICH IS A TOLL ROAD. WE FURTHER HOLD THAT THE DEVE LOPMENT OF FIVE LAND PARCELS ADJACENT TO EXPRESSWAY ARE INSEPARABLE AND INTEGRAL PART OF ONE PROJECT AND THE ASSESSEE IS ENTITLED AND ELIGIBLE FOR DEDUCTION U/S 80IA (4) OF THE ACT ON THE INCOME EARNED AND DERIVED FROM THE BUSINESS OF DEVELOPMENT OF INFRASTRUCTURE FACILITY DURING AY 2009-10 AFTER COM MENCEMENT OF ITS BUSINESS 8 ITA NO. 3126/DEL/201 5 W.E.F. 5.4.2007 AT THE OPTION OF THE ASSESSEE WHICH CANNOT BE DENIED BY WRONGLY PUTTING THE CASE OF THE ASSESSEE IN CLAUSE (B) OF EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT. 128. IN VIEW OF OUT AFORESAID OBSERVATIONS AND CONC LUSION, ON THE FACTS OF THE CASE, WE ARE INCLINED TO HOLD THAT THE VIEW TAK EN BY THE AO, WHILE GRANTING DEDUCTION U/S 80IA(4) OF THE ACT TO THE AS SESSEE, IS REASONABLE AND PLAUSIBLE WHICH CANNOT BE HELD AS LEGALLY UNSUSTAIN ABLE AND NOT IN ACCORDANCE WITH LAW AND ALSO BEING PASSED WITHOUT A PPLICATION OF MIND. WE, THEREFORE, ARE OF THE CONSIDERED OPINION THAT THE I MPUGNED NOTICE AND ORDER OF LD. CIT IS NOT VALID AND VOID AB INITIO SINCE IN THE PRESENT CASE THE ORDER U/S 263 OF THE ACT PASSED BY THE PRINCIPAL CIT IS BASED ON THE ORDER FOR A.Y. 2009-10, THE VER Y ESSENCE OF THE SAID ORDER HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN FAVOUR OF THE ASSESSEE, THEREFORE, THE ORDER U/S 263 OF THE ACT P ASSED BY THE PR. CIT IS SET ASIDE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2017 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 20/09/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 9 ITA NO. 3126/DEL/201 5 ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 4/08/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 4/08/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 20.09.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 2 0 .09.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.