M/S. Vasantha Vihar, Vizianagaram V. THE ITO, WARD - 2, Vizianagaram

ITA 315/VIZ/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0154 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T L PETER
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Question of law; Assessment record
• Section: 143(3); 80IB; 263; 63

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , . . . . , $ $ $ $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.315/VIZ/2013 ( / ASSESSMENT YEAR : 2008-09) M/S. VASANTHA VIHAR, D.NO. 211-1-1, RAILWAY STATION ROAD, VIZIANAGARAM. VS. ITO, WARD - 2, VIZIANAGARAM. [ PAN: AAEFV 0896 M] ( & & & & / APPELLANT) ( '(& '(& '(& '(& / RESPONDENT ) & ) / APPELLANT BY : G.V.N. HARI ADV. '(& ) / RESPONDENT BY : T.L. PETER CIT (DR) ) - / DATE OF HEARING : 09/12/2015 ) - / DATE OF PRONOUNCEMENT : 23 /12/2015. / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT-1, VISAKHAPATNAM, DATED 21/03/2013, FOR THE A.Y . 2008-09. 2 . BRIEF FACTS OF THE CASE, ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM, WHICH IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEV ELOPMENT, HAS FILED ITS RETURN OF INCOME FOR THE A.Y. 2008-09 ON 29/09/ 2008. THE CASE WAS 2 ITA NO.315/VIZ/2013 SELECTED FOR SCRUTINY UNDER COMPULSORY SCRUTINY NOR MS IN VIEW OF THE DEDUCTION CLAIMED UNDER SEC. 80IB(10) OF THE ACT, A CCORDINGLY STATUTORY NOTICES U/S 143(2)/142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO NOTICES, THE ASSESSEES AUTHORIZED REPRESENTATIVE A PPEARED FROM TIME TO TIME AND FURNISHED THE BOOKS OF ACCOUNTS AND OTHER INFORMATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SEC. 80IB(10), FOR ONE OF ITS HOUSING PROJECTS CALLED AS VASANTA VIHAR, MADH URAWADA. TO ASCERTAIN THE CORRECTNESS OF THE CLAIM MADE BY THE ASSESSEE, THE ASSESSING OFFICER ISSUED A SHOW-CAUSE NOTICE AND AS KED TO FURNISH THE DETAILS WITH REGARD TO CLAIM OF DEDUCTION U/S 80IB( 10) FOR THE HOUSING PROJECT, LIKE DETAILS OF LAND HOLDING, PLAN APPROVA L, DATE OF COMMENCEMENT AND DATE OF COMPLETION, FLAT SIZE AND AMOUNT INVESTED FOR CONSTRUCTION OF HOUSING PROJECT. IN RESPONSE TO SHOW-CAUSE NOTICE, THE ASSESSEE SUBMITTED THE DETAILS SOUGHT BY THE AS SESSING OFFICER, VIDE LETTER DATED 08/10/2010 AND FURNISHED THE COMPLETE DETAILS OF THE HOUSING PROJECT. THE ASSESSING OFFICER AFTER VERIF ICATION OF THE BOOKS OF ACCOUNTS AND OTHER DETAILS, COMPLETED THE ASSESSMEN T AND ALLOWED DEDUCTION CLAIMED UNDER SEC. 80IB(10) OF THE ACT. WHILE DOING SO, THE ASSESSING OFFICER OBSERVED VIDE PARA 2 TO 2.1 OF TH E ASSESSMENT ORDER AS UNDER:- 3 ITA NO.315/VIZ/2013 2.0 DURING THE PREVIOUS YEAR RELEVANT TO THE ASSE SSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE-FIRM COMMENC ED THE BUSINESS OF DEVELOPING AND BUILDING HOUSING PRO JECTS IN AC.2.53 OF AND SITUATED IN MADHURAWADO. FOR THIS PURPOSE, THE ASSESSEE HAS OBTAINED BUILDING PLAN AP PROVAL FROM GREATER VISAKHAPATNAM MUNICIPAL CORPN. VIDE PL AN APPROVAL IN BA.NO.141/07/ACP-1 DT.31-3-07 TO CONSTR UCT RESIDENTIAL APARTMENT BUILDING WITH TOTAL PLINTH AR EA OF 19928.15 SQ.MTS. IN 5.NO.19/1(P) AND 19/2(P) OF MADHURAWODA, KOMMADI VILLAGE. THEREFORE, IN ORDER T O BE ELIGIBLE FOR DEDUCTION U/5.801B OF THE ACT, THE PRO JECT SHOULD BE COMPLETED BEFORE 31-3-2012 AND FURNISH A COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY. 2.1 FROM THIS VENTURE, THE ASSESSEE-FIRM HAS ADMITT ED INCOME OF RS.80,58,087 ON PER CENTAGE COMPLETION METHOD AND CLAIMED 100% DEDUCTION UNDER SECTION 80B(10) OF THE I.T.ACT, 1961. BOOKS OF ACCOUNT, BIL LS, VOUCHERS ETC. AND OTHER RELEVANT DETAILS HAVE BEEN CALLED FOR AND EXAMINED THE ASSESSEE'S CLAIM FOR DEDUCTION U/S. 80IB(10) WITH REFERENCE TO THE CONDITIONS LAID DOWN IN CLAUSES (A) TO (D) OF SUB SECTION (10) OF SECTION 8 0IB OF THE ACT. IT IS FOUND THAT THE ASSESSEE-FIRM HAS FUL FILLED THESE CONDITIONS AND IS FOUND TO BE ELIGIBLE FOR TH E DEDUCTION CLAIMED. WITH REGARD TO THE CONDITION THA T THE CONSTRUCTION SHOULD BE COMPLETED WITHIN 5 YEARS FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJ ECT IS APPROVED BY THE LOCAL AUTHORITY, IF THE ASSESSEE FI RM VIOLATES THE CONDITION AND FAILS TO FURNISH COMPLET ION CERTIFICATE FROM THE CONCERNED LOCAL AUTHORITIES, T HE DEDUCTION WILL BE WITHDRAWN IN ACCORDANCE WITH LOW. 3 . THE CIT, VISAKHAPATNAM ISSUED A SHOW-CAUSE NOTICE UNDER SEC. 263 OF THE ACT DATED 19/02/2013 AND PROPOSED TO REV ISE THE ASSESSMENT ORDER. THE CIT PROPOSED TO REVISE THE ASSESSMENT O RDER FOR THE REASON THAT ON EXAMINATION OF THE ASSESSMENT RECORD, IT WA S NOTICED THAT THE ASSESSING OFFICER ERRONEOUSLY ALLOWED THE DEDUCTION CLAIMED UNDER SEC. 4 ITA NO.315/VIZ/2013 80IB(10) OF THE ACT, WHICH IS OTHERWISE NOT ALLOWAB LE TO THE ASSESSEE. THEREFORE, THE ASSESSMENT ORDER PASSED BY THE ASSES SING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTER EST OF THE REVENUE IN TERMS OF SEC. 263 OF THE ACT. THE CIT IN THE SHOW- CAUSE NOTICE OBSERVED THAT THE ASSESSEE HAS WRONGLY CLAIMED THE DEDUCTION UNDER SEC. 80IB(10), AS THE MANDATORY REQUIREMENT OF THE CONDITIONS SPECIFIED IN SEC. 80IB(10) HAS NOT BEEN FULFILLED. THE CIT F URTHER OBSERVED THAT THE LAND IN WHICH THE HOUSING PROJECT WAS DEVELOPED BY THE ASSESSEE WAS OWNED BY SHRI V. VASANTH BABU AND EIGHT OTHER P ERSONS, THEREFORE, THE ASSESSEES CONTENTION THAT THE LAND WAS TRANSFE RRED TO FIRM BOOKS OF ACCOUNTS IS NOT CORRECT. THE CIT FURTHER OBSERVED THAT THE PLANS SANCTIONED BY THE MUNICIPAL AUTHORITIES WAS IN THE NAME OF THE PARTNERS, THEREFORE, THE ASSESSEES CONTENTION WITH REGARD TO DEVELOPMENT OF HOUSING PROJECT BY THE FIRM WAS NOT TENABLE AS PER LAW. THE CIT FURTHER WAS OF THE OPINION THAT THE PARTNERSHIP FIRM COULD NOT BE SAID TO HAVE PLAYED ANY ROLE IN THE DEVELOPMENT OF THE PROJECT, BUT, SUCH ROLE COULD BE CONSTRUED AS THAT OF A CONTRACTOR WITH THE TWO P ARTNER AND THE PARTNERS IN THEIR INDIVIDUAL CAPACITY PLAYED A DOMI NANT ROLE IN EXECUTING AND COMPLETING THE PROJECT. THEREFORE, THE CIT WAS OF THE OPINION THAT THE FIRMS NAME WAS USED AS A FRONT ENTITY OR MASQU ERADE, WHILE THE SAID PROJECT WAS ACTUALLY UNDERTAKEN BY SHRI V.VASA NTH BABU, SHRI E. 5 ITA NO.315/VIZ/2013 VALLABHA RAO AND EIGHT OTHERS. IN FCAT, SHRI V.SASA NTH BABU PLAYED THE ROLE OF THE PROJECT CONVENER AND EXECUTOR FOR DEVEL OPMENT AND CONSTRUCTION OF THE MADHURAWADA PROJECT. WITH THESE OBSERVATIONS, THE CIT WAS OF THE VIEW THAT THE ASSESSING OFFICER COMP LETED THE ASSESSMENT WITHOUT EXAMINING THESE ISSUES, THUS, TH E ASSESSMENT ORDER PASSED UNDER SEC. 143(3) IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE IN TERMS OF SEC. 263 OF THE ACT. 4 . IN RESPONSE TO SHOW-CAUSE NOTICE, THE ASSESSEES AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE LAND IN WHICH THE HOUSING PROJECT WAS DEVELOPED IS OWNED BY PARTNERS OF THE FIRM I.E. V. VASANTH BABU AND E. VALLABHA RAO AND WHICH WAS LATER TRANSFERRED TO THE PARTNERSHIP FIRM. THE ASSESSEE FURTHER SUBMITTED THAT AS ON 01/04/200 7, THE ASSESSEE HAS CONVERTED ITS LAND INTO STOCK IN TRADE BY PASSING N ECESSARY SUPPORTING ENTRIES IN THE BOOKS OF ACCOUNTS OF PARTNERSHIP FIR M, WHICH WAS LATER DECLARED AS A CLOSING STOCK AS ON 31/03/2008. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER SUBMITTED TH AT FOR TRANSFER OF ANY IMMOVABLE PROPERTY AS A CAPITAL CONTRIBUTION INTO P ARTNERSHIP FIRM BY THE PARTNERS, THERE WAS NO NECESSITY OF ANY REGISTERED DEED. ACCORDING TO SEC. 14 OF THE INDIAN PARTNERSHIP ACT, ALL RIGHTS A ND INTERESTS OF PROPERTIES, WHICH THE PARTNERS HAVE BROUGHT INTO TH E PARTNERSHIP FIRM AS CAPITAL CONTRIBUTION WOULD BECOME PROPERTIES OF THE PARTNERSHIP. 6 ITA NO.315/VIZ/2013 ACCORDINGLY, EVEN IF THE PROPERTY CONTRIBUTED BY A PARTNER IS AN IMMOVABLE PROPERTY, NO REGISTERED DOCUMENT OR OTHER WISE, IS REQUIRED FOR TRANSFERRING THE PROPERTY TO THE PARTNERSHIP. THE ASSESSEE FURTHER SUBMITTED THAT AS FAR AS THE PLAN SANCTIONED IS CON CERNED, THE ASSESSEE HAS OBTAINED PLAN SANCTION IN THE NAME OF THE TWO P ARTNERS FOR THE SAKE OF CONVENIENCE AND QUICK PROCESSING OF THE APPROVAL . EVEN IF THE PLAN APPROVAL HAS NOT BEEN OBTAINED IN THE NAME OF THE P ARTNERSHIP FIRM, IT DOES NOT MEAN THAT THE PROJECT WAS NOT EXECUTED BY THE PARTNERSHIP FIRM. THE ASSESSEE FURTHER SUBMITTED THAT THE FIRM HAS EXECUTED THE HOUSING PROJECT IN ITS OWN NAME AND SALE PROCEEDS I NCLUDING THE SALE OF LAND WAS TOTALLY ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE FIRM. 5 . THE CIT, HOWEVER, AFTER CONSIDERING THE SUBMISSIO NS OF THE ASSESSEE HELD THAT THE ASSESSING OFFICER DID NOT VE RIFIED THE ISSUES WITH REGARD TO CLAIM OF DEDUCTION U/S 80IB(10) OF THE AC T AT THE TIME OF COMPLETION THE ASSESSMENT. THEREFORE, THE ASSESSMEN T ORDER DATED 20/12/2010 PASSED U/S 143(3) IS ERRONEOUS INSOFAR A S IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE IN TERMS OF SEC. 263 OF THE ACT. HENCE, SET ASIDE THE ASSESSMENT ORDER DATED 20/12/2010 AND DIR ECTED THE ASSESSING OFFICER TO DISALLOW THE CLAIM MADE BY THE ASSESSEE UNDER SEC. 80IB(10) OF THE ACT AND ALSO DIRECTED TO PASS CONSE QUENTIAL ORDER TO GIVE 7 ITA NO.315/VIZ/2013 EFFECT TO THE ORDER UNDER SEC. 263. AGGRIEVED BY T HE CITS ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 6 . THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUB MITTED THAT THE ASSESSMENT ORDER IS NOT ERRONEOUS INSOFAR AS IT IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS DURING THE ASSESSMENT P ROCEEDINGS, THE ASSESSING OFFICER HAS MADE DETAILED ENQUIRIES WITH REGARD TO ALLOWABILITY OF DEDUCTION UNDER SEC. 80IB(10) OF THE ACT. THE AU THORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER SUBMITTED TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER IS SUED A DETAILED QUESTIONNAIRE DATED 20/09/2010 WHEREIN, HE HAS RAIS ED ALMOST 19 QUESTIONS REGARDING CLAIM OF DEDUCTION UNDER SEC. 8 0IB(10). THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER S UBMITTED THAT THE ASSESSING OFFICER HAS EXAMINED THE ISSUE WITH REGAR D TO DEDUCTION UNDER SEC. 80IB(10) OF THE ACT AND AFTER SATISFIED WITH T HE DETAILS FURNISHED BY THE ASSESSEE, ALLOWED THE DEDUCTION. THE AUTHORIZE D REPRESENTATIVE OF THE ASSESSEE, FURTHER SUBMITTED THAT AS REGARDS THE MERITS OF THE ISSUE IS CONCERNED, THE CIT REVISED THE ASSESSMENT ORDER ON THE SOLE GROUND THAT THE LAND IN WHICH THE HOUSING PROJECT WAS EXEC UTED BY THE ASSESSE WAS NOT OWNED BY THE PARTNERSHIP FIRM. THE FACT IS THAT THE LAND MEASURING 2.53 ACRES IS IN THE NAME OF TWO PARTNERS , BUT, THE CIT HAS FAILED TO TAKE NOTE OF THE DOCUMENTS FURNISHED BY T HE ASSESSEE WHICH 8 ITA NO.315/VIZ/2013 WERE AVAILABLE IN THE ASSESSMENT RECORD. THEREFORE , THE CIT WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE LAND W AS NOT IN THE NAME OF PARTNERSHIP FIRM. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS OBTAINED THE PLAN S ANCTION IN THE NAME OF PARTNERS, BECAUSE THE MUNICIPAL AUTHORITIES NORM ALLY GIVE SANCTION PLANS TO THE PERSONS, WHO HAD THE TITLE DEEDS IN TH EIR NAMES. SINCE THE PARTNERS HAVE TRANSFERRED THE LAND STANDING IN THEI R PERSONAL NAMES TO PARTNERSHIP FIRM, BY WAY OF TRANSFER REFERRED TO IN SECTION 45(3) OF THE ACT, NO REGISTERED DEED IS EXECUTED FOR TRANSFERRIN G THE TITLE DEEDS TO FIRM. THEREFORE, IN ABSENCE OF NECESSARY REGISTRAT ION DEED, IN THE NAME OF THE FIRM, THE MUNICIPAL AUTHORITIES DECLINED TO GIVE SANCTION PLAN IN THE NAME OF PARTNERSHIP FIRM. THEREFORE, THE ASSES SEE HAS OBTAINED SANCTION PLAN IN THE NAME OF PARTNERS OF THE FIRM, BUT THE PROJECT WAS EXECUTED BY THE PARTNERSHIP FIRM AS A BUILDER AND D EVELOPER. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER S UBMITTED THAT ALL THESE ISSUES WERE BROUGHT TO THE NOTICE OF THE ASSE SSING OFFICER AT THE TIME OF ASSESSMENT, BUT THE CIT WITHOUT POINTING OU T ANY ERRORS IN THE ASSESSMENT ORDER, DIRECTED THE ASSESSING OFFICER TO REEXAMINE THE ISSUE IN ORDER TO MAKE FURTHER ENQUIRY. 7 . ON THE OTHER HAND, DEPARTMENTAL REPRESENTATIVE ST RONGLY SUPPORTED THE ORDER OF THE CIT. THE DEPARTMENTAL R EPRESENTATIVE 9 ITA NO.315/VIZ/2013 FURTHER ARGUED THAT THE CIT MAINLY ASSUMED THE JURI SDICTION FOR THE REASON THAT THE OWNERSHIP OF THE LAND WAS IN THE NA ME OF THE PARTNERS OF THE FIRM AND EIGHT OTHERS. THE CIT IN HIS OBSER VATIONS STATED THAT THE LAND IN WHICH HOUSING PROJECT WAS DEVELOPED WAS OWN ED BY ONE OF THE PARTNERS AND EIGHT OTHER PEOPLE, WHO HAD NEVER BECO ME PARTNERS OF THE FIRM. THE PLAN SANCTION WAS OBTAINED IN THE NAME O F INDIVIDUAL PARTNERS. THE ASSESSE DID NOT BROUGHT TO THE NOTICE OF CIT, T HAT THE LAND IN WHICH HOUSING PROJECT WAS DEVELOPED WAS OWNED BY EIGHT OT HER PEOPLE ALONG WITH SHRI V. VASANTH BABU, WAS LATER TRANSFERRED IN THE NAME OF SHRI V. VASANTH BABU. IN CASE, THE ASSESSE HAD BROUGHT THIS FACT TO THE NOTICE OF CIT, THEN, THE CIT WOULD NOT HAVE PROCEEDED WITH RE VISION OF ASSESSMENT ORDER. IN THE ABSENCE OF REQUIRED DOCUME NTS TO PROVE THE OWNERSHIP OF LAND, THE CIT HAS REVISED THE ASSESSME NT ORDER AND DIRECTED THE ASSESSING OFFICER TO DISALLOW THE CLAI M UNDER SEC. 80IB(10), THEREFORE, REQUESTED TO UPHOLD THE CITS ORDER. 8 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERI ALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE REVENU E AUTHORITIES. THE CIT, ASSUMED THE JURISDICTION FOR THE REASONS THAT THE ASSESSING OFFICER DID NOT CONDUCT PROPER ENQUIRY BEFORE PASSING THE A SSESSMENT ORDER, THEREBY HIS ORDER IS ERRONEOUS INSOFAR AS IT IS PRE JUDICIAL TO THE INTEREST OF THE REVENUE. THE CIT REVISED THE ASSESSMENT ORD ER ON THE SOLE 10 ITA NO.315/VIZ/2013 GROUND THAT THE LAND IN WHICH HOUSING PROJECT WAS D EVELOPED WAS NOT IN THE NAMES OF THE PARTNERS, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SEC. 80IB(10) OF THE ACT. THE CIT CAME TO THE CONCLUSION THAT THE LAND WAS NOT IN THE NAME OF THE PARTNERSHIP FIRM, IS BASED ON A DOCUMENT WHICH SHOWS, LAND MEASURING 44 CENTS WAS PREVIOUSLY OWNED BY SHRI V. VASANTH BABU, ONE OF TH E PARTNERS AND EIGHT OTHERS UNDER A SALE CUM GPA. BUT, THE SAID LA ND WAS LATER TRANSFERRED IN THE NAME OF SHRI V. VASANTH BABU BY A REGISTERED DOCUMENT DATED 23/12/2004 AND THIS FACT WAS NOT CON SIDERED BY THE CIT IN THE REVISION PROCEEDINGS. 9 . DURING THE COURSE OF HEARING, THE AUTHORIZED REPR ESENTATIVE OF THE ASSESSEE DEMONSTRATED WITH ALL DOCUMENTARY EVIDENCE S THAT THE CIT WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE LA ND WAS NOT IN THE NAME OF PARTNERSHIP FIRM. THE AUTHORIZED REPRESENT ATIVE OF THE ASSESSEE SUBMITTED A PAPER BOOK, WHEREIN THE DOCUME NTS PERTAINING TO OWNERSHIP OF LAND WAS FURNISHED. ON PERUSAL OF THE DOCUMENTS, WE NOTICED THAT OUT OF 2.53 ACRES OF LAND IN WHICH THE HOUSING PROJECT WAS DEVELOPED, 2.03 ACRES WAS OWNED BY SHI V. VASANTH B ABU AND REMAINING 50 CENTS IN SURVEY NO. 19/11 & 2 WAS OWNED BY SHRI E. VALLABHA RAO, BOTH PARTNERS OF THE FIRM. THE SAID LAND WAS TRANS FERRED BY THE PARTNERS BY WAY OF THEIR CAPITAL CONTRIBUTION INTO VASANTHA VIHAR-PARTNERSHIP FIRM 11 ITA NO.315/VIZ/2013 ON 01/04/2007, LATER, WHICH WAS SHOWN AS CLOSING ST OCK AS ON 31/03/2008. ONCE, THE LAND WAS BROUGHT INTO THE PA RTNERSHIP FIRM BY WAY OF CAPITAL CONTRIBUTION, THERE IS NO NECESSITY OF ANY REGISTERED DOCUMENT TO TRANSFER THE TITLE DEEDS FROM PARTNERS TO PARTNERSHIP FIRM. SEC. 14 OF THE INDIAN PARTNERSHIP ACT CLEARLY SAYS THAT THE TITLE AND INTEREST IN ALL PROPERTIES, WHICH ARE BROUGHT INTO THE COMMON STOCK OF THE FIRM, BECAME PROPERTY OF THE FIRM AS HELD BY TH E HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. AMBARGO CORPORATION (1974) 95 ITR 178. 10 . AS REGARDS THE SANCTION PLAN ISSUE RAISED BY THE CIT IN THE SHOW- CAUSE NOTICE, THE ASSESSEE SUBMITTED THAT IT HAS OB TAINED SANCTION PLAN FROM THE MUNICIPAL AUTHORITIES IN THE NAME OF THE T WO PARTNERS, AS THE TITTLES OF THE LAND WERE IN THE NAMES OF THE PARTNE RS. THEREFORE, JUST BECAUSE THE SANCTION PLAN WAS OBTAINED IN THE NAME OF PARTNERS, IT CANNOT BE CONSTRUED THAT THE HOUSING PROJECT WAS NO T EXECUTED BY THE PARTNERSHIP FIRM. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE THAT THERE IS NO NECESSITY OF HAVING OWN LAND FOR THE PU RPOSE OF DEVELOPMENT OF HOUSING PROJECT AND CLAIMING DEDUCTION UNDER SEC . 80IB(10). WHAT IS REQUIRED TO BE SEEN IS, WHETHER THE HOUSING PROJECT IS DEVELOPED AS PER THE CONDITIONS STIPULATED UNDER SEC. 80IB(10) OR NO T. IN THE PRESENT CASE IN OUR HAND, THOUGH THE LANDS WERE STANDING IN THE INDIVIDUAL 12 ITA NO.315/VIZ/2013 PARTNERS NAME, SAME WAS TRANSFERRED TO FIRM BOOKS BY WAY OF CAPITAL CONTRIBUTION WHICH WAS ONE OF THE ACCEPTED MODES OF TRANSFER OF CAPITAL ASSET UNDER SEC. 45(3) OF THE ACT. ONCE, THE LAND HAS BEEN TRANSFERRED TO PARTNERSHIP FIRM, IT BECOME THE PROPERTY OF THE FIRM, THEREFORE, EVEN IF THE SANCTION PLANS FOR BUILDING IS IN INDIVIDUAL PA RTNERS NAME, THE BENEFIT OF DEDUCTION UNDER SEC. 80IB(10), CANNOT BE DENIED AS HELD BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS & OTHERS VS. ITO (2008) 113 TTJ 300. THEREFORE, WE ARE OF THE OPIN ION THAT THE CIT WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT JU ST BECAUSE THE LANDS AND THE RELEVANT SANCTION PLANS WERE NOT IN THE NAM E OF THE PARTNERSHIP FIRM, THE FIRM IS NOT ELIGIBLE FOR CLAIMING DEDUCTI ON UNDER SEC. 80IB(10). ON CAREFUL CONSIDERATION OF THE PROVISIONS OF SEC. 80IB OF THE ACT, WE NOTICED THAT THE LAND SHOULD BE OWNED BY PERSON, WH O EXECUTES THE HOUSING PROJECT. AS CAN BE SEEN FROM THE DOCUMENTS AVAILABLE IN THIS CASE, THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS STIPULATED UNDER SEC. 80IB(10), THEREFORE, ELIGIBLE FOR DEDUCTION FO R DEVELOPMENT OF HOUSING PROJECT. 11 . THE CIT ASSUMED HIS JURISDICTION TO REVISE THE AS SESSMENT ORDER ON THE GROUND THAT THERE IS A LACK OF ENQUIRY ON TH E PART OF THE ASSESSING OFFICER IN EXAMINING THE ISSUES REFERRED TO IN THE SHOW-CAUSE NOTICE. THE CIT QUESTIONED THE ALLOWABILITY OF DED UCTION CLAIMED UNDER 13 ITA NO.315/VIZ/2013 SEC. 80IB(10). THE ASSESSE, WITH ALL NECESSARY EVI DENCES DEMONSTRATED BEFORE US THAT IT IS ELIGIBLE FOR CLAIMING DEDUCTIO N UNDER SEC. 80IB(10) OF THE ACT. ON GOING THROUGH THE DETAILS SUBMITTED BY THE ASSESSEE, WE NOTICED THAT THE ASSESSING OFFICER, DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, HAS EXAMINED THE ISSUES RELATING TO DE DUCTION UNDER SEC. 80IB(10) OF THE ACT. ONCE, THE ISSUE IS EXAMINED A ND CONSIDERED BY THE ASSESSING OFFICER, THE CIT HAS NO JURISDICTION TO E NTERTAIN FRESH ENQUIRY ON THE SAME ISSUE, BECAUSE HE HAS A DIFFERENT OPINI ON ON THE ISSUE. IN OUR OPINION, THE ISSUE OF DEDUCTION UNDER SEC. 80IB (10) IS HIGHLY DEBATABLE AND THERE IS ALWAYS TWO VIEWS ARE POSSIBL E, THE ASSESSING OFFICER AFTER CONSIDERING THE DETAILS, HAS TAKEN ON E OF THE POSSIBLE VIEW, WHICH CANNOT BE TERMED AS ERRONEOUS. THERE MAY BE LOSS OF REVENUE BECAUSE OF THE DECISION TAKEN BY THE ASSESSING OFFI CER, BUT EVERY LOSS OF REVENUE AS A RESULT OF ASSESSMENT ORDER CANNOT BE T REATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 12 . THE CIT HAS A POWER TO REVISE THE ASSESSMENT ORDE R BY INVOKING THE PROVISIONS OF SEC. 263 OF THE ACT. BUT, TO INV OKE SEC. 263, TWIN CONDITIONS MUST BE SATISFIED I.E. THE ORDER IS ERRO NEOUS AND FURTHER IT MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS BOTH THE CONDITIONS ARE SATISFIED, THE CIT CANNOT ASSUME THE JURISDICTION UNDER SEC. 263 OF THE ACT. IT IS NOT NECESSARY THAT EVER Y ORDER WHICH IS 14 ITA NO.315/VIZ/2013 ERRONEOUS MAY PREJUDICIAL TO THE INTEREST OF THE RE VENUE OR VICE-VERSA. UNLESS THE ASSESSING OFFICERS ORDER IS NOT ERRONEO US, NO ACTION CAN BE TAKEN BY THE CIT UNDER SEC. 263 OF THE ACT, BECAUSE THE TWIN CONDITIONS I.E. THE ORDER IS ERRONEOUS AND ALSO THE SAME IS PR EJUDICIAL TO THE INTEREST OF THE REVENUE ARE CO-EXIST. IN THE PRESENT CASE I N OUR HAND, THE ASSESSING OFFICER HAS CONDUCTED A DETAILED ENQUIRY AND ALSO EXAMINED THE POINTS ON WHICH THE CIT WANTS FURTHER VERIFICAT ION WHICH IS EVIDENT FROM PARA 2 TO 2.1 AT PAGE NO. 2 OF THE ASSESSMENT ORDER. THE CONTENTION OF THE CIT WAS THAT THE ASSESSING OFFICE R HAS NOT CONDUCTED PROPER ENQUIRY AND ALSO NOT APPLIED HIS MIND BEFORE ALLOWING THE DEDUCTION. WE DO NOT AGREE WITH THE STAND TAKEN BY THE CIT FOR THE REASON THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUATE ENQUIRY. IF THERE IS ENQUIRY, WHICH IS INADEQUATE THAT WOULD NOT ITSELF GIVE OCCASION TO THE CIT TO ASSUME JURIS DICTION UNDER SEC. 263 OF THE ACT, MERELY BECAUSE HE HAS A DIFFERENT OPINI ON IN THE MATTER. THE CIT CAN DO THIS WHEN THERE IS A LACK OF ENQUIRY BY THE ASSESSING OFFICER. IN THE PRESENT CASE, THE ASSESSMENT ORDER IS A DETA ILED ONE AND ALSO THE ASSESSING OFFICER HAS PASSED A REMARK IN THE ASSESS MENT ORDER ON THE ALLOWABILITY OF DEDUCTION UNDER SEC. 80IB(10), THER EFORE, IT CANNOT BE TERMED AS ERRONEOUS. ACCORDING TO CIT, THE ASSESSIN G OFFICER HAS CONDUCTED INADEQUATE ENQUIRY, THEREFORE, HE WANTED FURTHER ENQUIRY; 15 ITA NO.315/VIZ/2013 THIS FACT WAS NOT DISPUTED BY THE REVENUE. THE CIT CANNOT INITIATE REVISIONARY PROCEEDINGS WITH A VIEW TO CONDUCT FISH ING AND REVOLVING ENQUIRIES ON THE ISSUES WHICH WERE EXAMINED AND ALL OWED BY THE ASSESSING OFFICER. THE DEPARTMENT CANNOT DO FRESH ASSESSMENT IN THE GUISE OF REVISION, JUST BECAUSE IT HAS A POWER TO R EVISE THE ASSESSMENT ORDER UNDER SEC. 263 OF THE ACT. THEREFORE, IN OUR OPINION, THE ORDER PASSED BY THE ASSESSING OFFICER CANNOT BE HELD ERRO NEOUS AND ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. 13 . THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ARG UED THAT THE ASSESSING OFFICER HAS EXAMINED ALL THE ISSUES WHICH LEAD TO REVISION OF ASSESSMENT ORDER UNDER SEC. 263 OF THE ACT. WE HAVE OBSERVED THAT THE ASSESSING OFFICER VIDE HIS QUESTIONNAIRE DATED 20/0 9/2010 MADE ELABORATE ENQUIRY INTO DEDUCTION UNDER SEC. 80IB(10 ) OF THE ACT. THE ASSESSING OFFICER IN THE SAID LETTER RAISED AS MANY AS 19 QUESTIONS, WHEREIN HE HAD CALLED FOR EXPLANATIONS FROM ALL THE ISSUES I.E. DETAILS OF LAND HOLDING, PLAN SANCTION, SIZE OF FLATS, TYPE OF HOUSING PROJECT CONSTRUCTED AND OTHER ISSUES AS SPECIFIED UNDER SEC . 80IB(10) OF THE ACT BEFORE ALLOWING DEDUCTION. THE COPIES OF THE QUEST IONNAIRE AND REPLY FURNISHED BY THE ASSESSEE ARE PLACED BEFORE US. ON PERUSAL OF THE DETAILS PLACED BEFORE US, WE ARE OF THE OPINION THA T THE ASSESSING OFFICER HAS MADE DETAILED ENQUIRY ABOUT DEDUCTION UNDER SEC . 80IB(10) OF THE 16 ITA NO.315/VIZ/2013 ACT. IN OUR OPINION, THE CIT HAS WRONGLY ASSUMED T HE JURISDICTION BY HOLDING THAT THE ASSESSING OFFICER HAD NOT PROPERLY EXAMINED THE ISSUE. THE ORDER OF THE ASSESSING OFFICER MAY BE BRIEF AND CRYPTIC, BUT, THAT ITSELF IS NOT A SUFFICIENT REASON TO BRAND THE ASSE SSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. IT IS WELL SETTLED PROPOSITION OF LAW THAT WRITING OF AN ORDER IN DETAIL MAY BE LEGAL REQUIREMENT, BUT THE ORDER NOT FULFILLING THIS REQU IREMENT CANNOT BE SAID TO BE ERRONEOUS AND PREJUDICIAL. IT IS APPEARED FR OM THE RECORDS THAT THE ASSESSEE SUBMITTED ITS REPLY AND ALSO FURNISHED THE REQUISITE INFORMATION OR DETAILS TO SUBSTANTIATE ITS CLAIM DU RING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER HAVI NG CONSIDERED ALL THE ISSUES HAS ALLOWED DEDUCTION UNDER SEC. 80IB(10 ) OF THE ACT. IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER HAS MADE PROPER AND DESIRED ENQUIRIES BEFORE PASSING THE ASSESSMENT ORDER. THE REFORE, THE VIEW TAKEN BY THE CIT CANNOT BE HELD TO BE JUSTIFIABLE. 14 . NOW IT IS RELEVANT TO CONSIDER THE CASE-LAWS RELI ED UPON BY THE ASSESSEE. THE ASSESSEE RELIED UPON THE COORDINATE BENCH DECISION IN THE CASE OF RAGHAVA ESTATE LTD. VS. DCIT IN I.T.A.NO. 248 & 249/VIZ/2009, WHEREIN THE COORDINATE BENCH OF THIS TRIBUNAL, HAS CONSIDERED THE ISSUE OF ALLOWABILITY OF DEDUCTION U NDER SEC. 80IB(10) OF THE ACT, WHICH WAS LATER UPHELD BY THE HON'BLE ANDH RA PRADESH HIGH 17 ITA NO.315/VIZ/2013 COURT IN ITTA NO. 296/2013. THE RELEVANT PORTION IS REPRODUCED HEREIN UNDER:- 12. WE HAVE HEARD THE PARTIES ON THESE TWO APP EALS. THE SCOPE OF REVISION PROCEEDINGS HAS BEEN WELL EXPLAIN ED BY HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUST RIAL COMPANY (2000)(243 ITR 83) IN THE FOLLOWING LINES. 'A BARE READING OF THIS PROVISION MAKES IT CLEAR TH AT THE PRE- REQUISITE TO EXERCISE OF JURISDICTION BY THE COMMIS SIONER SUO MOTU UNDER IT, IS THAT THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TW IN CONDITIONS, NAMELY, (I) THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDIC IAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT- IF THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS BUT IS NOT P RE-JUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUD ICIAL TO THE REVENUE RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THE PRO-VISION CANNOT BE INVOKED TO CORRECT EACH AN D EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFI CER, IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT AP PLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYI NG THE PRINCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATIO N OF MIND. THE PHRASE `PREJUDICIAL TO THE INTERESTS OF THE REVENUE ' IS NOT AN EXPRESSION OF ART AND IS NOT CONFINED IN THE ACT. U NDERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NO T CONFINED TO LOSS OF TAX. THE SCHEME OF THE ACT IS TO LEVY AND C OLLECT TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THIS TASK IS ENTRUSTED TO THE REVENUE. IF DUE TO AN ERRONEOUS OR DER OF THE INCOME-TAX OFFICER, THE REVENUE IS LOSING TAX LAWFU LLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO TH E INTERESTS OF THE REVENUE. THE PHRASE `PREJUDICIAL TO THE INTERESTS O F THE REVENUE' HAS TO BE READ IN CONJUNCTION WITH AN ERRO NEOUS ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVE NUE AS A CONSEQUENCE OF AN ORDER OF ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURS ES PERMISSIBLE LAW AND IT HAS RESULTED IN LOSS OF REVE NUE ; OR 18 ITA NO.315/VIZ/2013 WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFF ICER HAS TAKEN ONE VIEW WITH WHICH THE COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY T HE INCOME- TAX OFFICER IS UNSUSTAINABLE IN LAW.' FROM THE DISCUSSIONS MADE IN THE APPEAL FILED BY TH E REVENUE FOR THE ASSESSMENT YEAR 2006-07 IN THE PRECEDING PA RAGRAPHS, IT IS CLEAR THAT THE ISSUE OF ALLOWING DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF NARAYANAPURAM HO USING COLONY IN THE HANDS OF THE ASSESSEE IS A DEBATABLE ISSUE ON WHICH TWO VIEWS ARE POSSIBLE. THERE CANNOT BE ANY DOUBT THAT THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS IN THE IMPUGNED TWO YEARS, IN WHICH CASE THE ASSESSMENT OR DER CANNOT BE TERMED AS ERRONEOUS AND PREJUDICIAL TO TH E INTERESTS OF THE REVENUE. IN THAT CASE, THE LEARNED CIT COUL D NOT HAVE JURISDICTION TO INITIATE REVISION PROCEEDINGS UNDER SECTION 263 OF THE ACT IN RESPECT OF THE SAID ISSUE. ACCORDINGLY, WE SET ASIDE BOTH THE IMPUGNED ORDERS OF LEARNED CIT. 15. THE ITAT, HYDERABAD BENCH IN THE CASE OF M/S. CECON BUILDERS VS. ITO IN I.T.A.NO. 550/HYD/2013, UNDER SIMILAR CIRCUMSTANCES HELD THE ISSUE IN FAVOUR OF THE ASSESSEE, WHICH WAS LATER UP HELD BY THE HON'BLE ANDHRA PRADESH HIGH COURT IN ITTA NOS. 600 & 602/20 14. THE RELEVANT PORTION IS REPRODUCED HEREINUNDER:- 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE OPINION THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION TO THE EXTENT OF CONSTRUCTED AREA OF 9763 SQ. METERS WHICH WAS ORIGI NALLY SANCTIONED. THEREFORE, THE REVENUE GROUND ON ALLOWI NG PROPORTIONATE 80IB DEDUCTION DOES NOT REQUIRE ANY RECONSIDERATION AS THE ASSESSEE IS HELD OTHERWISE E LIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) AND THE A.O. FIND OUT HAS NOT ANY REASON TO DENY EXCEPT (A) PLANS ARE NOT IN THE NAME OF THE ASSESSEE (B) THAT THERE IS VIOLATION OF THE BUILDIN G PLANS WHICH. 0'AS REGULARIZED SUBSEQUENTLY ON 26.08.2010. TO THA T EXTENT, REVENUE GROUNDS ARE NOT MAINTAINABLE AS THE COORDIN ATE BENCH 19 ITA NO.315/VIZ/2013 IN THE, CASE OF RADHE DEVELOPERS (SUPRA) HELD THAT PERMISSION IN THE NAME OF DEVELOPER IS NOT REQUIRED AND WHAT IS R EQUIRED IS PERMISSION OF THE' PROJECT, ON WHICH THERE IS NO DI SPUTE. ACCORDINGLY, THESE GROUNDS ARE NOT MAINTAINABLE. 5. OTHER GROUND CONTESTED IN THE REVENUE'S APPEAL I S WITH REFERENCE TO THE ESTIMATION OF INCOME WHICH LEARNED CIT(A) DID NOT APPROVE AS THERE IS NO CASE FOR REJECTING THE B OOKS OF ACCOUNTS. WITH REFERENCE TO THIS ASPECT, WE NEED T O DISCUSS THE SAME WITH ASSESSEE'S CONTENTION ABOUT CLAIM OF 80IB (10) IN THE ADDITIONAL CONSTRUCTED AREA. 6. THERE IS NO DISPUTE WITH REFERENCE TO THE ORIGIN AL PERMISSION BEING OBTAINED FOR 9763 SQ. METERS. THERE IS ALSO N O DISPUTE THAT UNDER 'THE BUILDING PENALIZATION SCHEME THE PR OJECT WAS APPROVED BY THE GREATER HYDERABAD MUNICIPAL CORPORA TION VIDE PERMISSION 'DATED 26.08.2010. THE LEARNED CIT(A) WA S OF THE VIEW THAT THIS ADDITIONAL CONSTRUCTED AREA IS NOT E LIGIBLE FOR DEDUCTION UNDER SECTION 80IB. ASSESSEE RELIED ON TH E DECISION OF COORDINATE BENCH OF BANGALORE IN THE CASE OF ITO VS . MAHAVIR CALYX (ITA.NO.153 & 998/BANG/2011) WHEREIN IT WAS H ELD AS UNDER:- ' WE ARE OF THE VIEW THAT THE LEARNED C1T HAS RIGHTLY PLACED RELIANCE ON THE DECISION OF THE HON'BLE APEX COURT IN THE CASES OF PETRON ENGINEERING CONSTRUCTION PUT. LTD., REPOR TED IN 175 1TR 523, PANYAM CHEMICALS LTD. REPORTED IN 262 1TR 278, N.C. BUDDHIRAJA & CO REPORTED IN 204 TTR 412, IPCA LABOR ATORIES LTD. CASE REPORTED IN 266 17'R 521, TO ARRIVE AT TH E VIEW THAT THE TAX INCENTIVE BY WAY OF DEDUCTION UNDER SECTION 801B OF THE ACT IS PREDOMINANTLY FOR THE PURPOSE OF AUGMENTING AFFORDABLE DWELLING AND OUGHT TO BE INTERPRETED IN THAT LIGHT. IN VIEW OF THE MATTER, THE INCENTIVE PROVISION MUST BE CONSTRUED I N A MANNER WHICH ADVANCES THE OBJECT AND INTENTION OF LEGISLAT URE. THE FACT THAT THE ASSESSEE HAS OBTAINED APPROVAL FOR THE HOU SING PROJECT CANNOT BE LOST SIGHT OF. AS FOR THE EXCESS ARREAR C ONSTRUCTED, IT IS FOR THE BBMP TO LOOK INTO THE VIOLATIONS IF ANY, IN THE CONSTRUCTION OF THE HOUSING PROJECT. THAT DOES HOWE VER, AUTHORIZE THE A.O. TO HOLD THAT THE ASSESSEE HAS NO T GOT APPROVAL FOR THE HOUSING PROJECT OR THE CONDITIONS LAID DOWN IN SEC. SEC.80IB (10) STATED VIOLATED.' 7. EVEN THOUGH PRINCIPLES CONSIDERED THEREIN DO APP LY TO THE PRESENT FACTS, WHAT WE ARE UNABLE TO DECIDE IS WHET HER THE 20 ITA NO.315/VIZ/2013 SAME WILL APPLY TO THE ASSESSEE. AS SEEN FROM THE P ERMISSION GRANTED BY THE GHMC THE ORIGINAL SANCTIONED PLAN' W AS FOR CELLAR, STILT + 9 FLOORS CONSISTING OF 9763.76 SQ. METERS. THE REVISED PLAN WAS ALSO STATED TO BE CELLAR, STILT + 9 FLOORS + PENT HOUSE. WE ARE UNABLE TO UNDERSTAND WHETHER ADDITION OF ONLY PENT HOUSE WILL INCREASE 'THE SPACE OF BUILT UP AREA BY 6543.84 SQ. METERS OR THERE ARE, ANY OTHER INCREASE IN THE AREA OF ADDITIONAL 'BUILDINGS CONSTR4TED. SINCE THE PLANS ARE NOT PLAC ED ON RECORD, WE ARE UNABLE TO GIVE ANY FINDING ON THIS. MOREOVER, T HE BPS SCHEME WAS APPLICABLE ONLY TO THE APPLICATIONS MADE ON OR BEFORE 31-03- 08. THE PLANS WERE APPROVED ONLY IN JULY 2007. PAYM ENTS FOR PENALTY WERE MADE LATER AS CAN BE SEEN FROM COPY OF APPROVAL PLACED ON RECORD. SINCE REVISED PLANS WERE NOT PLAC ED ON RECORD WE ARE UNABLE TO DECIDE ISSUE ONLY ON LEGAL PRINCIP LES. THE A.O. IS DIRECTED TO EXAMINE THE ORIGINAL PLANS, REVISED PLA NS AND EXAMINE WHETHER THE DEDUCTION TINDER 80IB IS ELIGIBLE FOR R EVISED PLAN. IN CASE OF AREA OF FLATS HAVE CHANGED, TO VERIFY WHETH ER THE CONSTRUCTED APARTMENTS ARE WITHIN THE NORMS PRESCRI BED UNDER SECTION 80IB(10). NEEDLESS TO SAY THAT BALCONIES AN D COMMON AREAS ARE NOT TO BE CONSIDERED AS PART OF 'FIAT ARE A' AS PER THE DECISIONS OF THE COORDINATE BENCH ON THE 4SUE. HOW EVER, THE PENT HOUSE CONSTRUCTED AND THE ADDITIONAL SPACE FOR WHIC H REVISED PLANS WERE TAKEN SHOULD BE EXAMINED WHETHER THE PROJECT I TSELF IS ELIGIBLE FOR 80IB (10), ON WHICH THERE IS NO FINDIN G FROM THE A.O. OR BY THE CIT(A) IN THE ORDERS. NOT ONLY THAT AS SEEN FROM THE P & L ACCOUNT ASSESSEE IS STILL CARRYING CLOSING STOCK OF MORE THAN RS. 4 CRORES, WHEREAS SALES DURING THE YEAR WAS RS.6.24 C RORES. WHETHER ASSESSEE HAS CONTINUED TO CLAIM 80IB(10) IN LATER Y EAR ALSO ON THE BALANCE OF CONSTRUCTED AREA REQUIRED TO BE EXAMINED , KEEPING IN MIND THE METHOD OF ACCOUNTING FOLLOWED. AS A.O. EST IMATED INCOME FOR NON PRODUCTION OF BOOKS OF ACCOUNT, WE A RE OF THE OPINION THAT THESE ASPECTS ALSO REQUIRE EXAMINATION . FOR THESE PURPOSES, WE ARE OF THE OPINION THAT THE ISSUE IN A SSESSEE'S GROUNDS RE-EXAMINATION BY AO. THEREFORE, SINCE THE ISSUES ARE RESTORED TO THE FILE OF THE A.O., HE SHOULD' EXAMIN E THE BOOKS OF ACCOUNTS IN ORDER TO DETERMINE THE EXTENT OF PROFIT S DISCLOSED BY THE ASSESSEE. NEEDLESS TO SAY THAT ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 16 . THE HON'BLE MADRAS HIGH COURT, IN THE CASE OF CIT VS. SANGHVI & DOSHI ENTERPRISE REPORTED IN (2013) 50 (I) ITCL 303 (MAD-HC) HELD T HAT 21 ITA NO.315/VIZ/2013 WHERE THE ASSESSEE ENTERED INTO A JOINT DEVELOPMENT AGREEMENT TO BUILD UP A HOUSING PROJECT ON LAND OWNED BY SOME OTHER PE RSON AND ASSUMED ALL RISKS THAT ARE ASSUMED BY A DEVELOPER, THEN THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SEC. 80IB(10) OF THE AC T IN RESPECT OF PROFITS DERIVED FROM THE HOUSING PROJECT. THE RELEVANT POR TION IS REPRODUCED HEREINUNDER:- A READING OF THE VARIOUS CLAUSES OF THE AGREEMENT CLEARLY POINTS OUT THE ROLE OF THE ASSESSEE, WHICH IS NOT J UST AS THAT OF A BUILDER TO PUT UP CONSTRUCTION AS PER THE DIRECTION S OF THE OWNER; ON THE OTHER HAND, AS RIGHTLY POINTED OUT BY THE TRIBUNAL, THE RISK ELEMENT THAT IS INVOLVED IN THE PROJECT UNDERTAKEN BY THE ASSESSEE IS MORE THAN THAT OF A N ORMAL BUILDER, UNDERTAKING MERE CONSTRUCTION. IT IS SEEN FROM THE DATA FURNISHED BEFORE THE AO THAT WHILE FLATS IN THE 6TH FLOOR AND 11TH FLOOR WERE SOLD EVEN AS EARLY AS 2003, FLATS I N FIRST FLOOR WITH NOS. 104 AND 103 WERE SOLD IN THE YEAR 2009. S O TOO, SOME OF THE FLATS IN SECOND FLOOR AND THIRD FLOOR WERE S OLD IN THE YEARS 2007, 2006 AND 2005. THE FLAT IN 12TH FLOOR WAS SOL D ON 15-10- 2063 VALID IN THE 9TH FLOOR ON 5-11-2003. THE FLATS IN THE FIRST FLOOR WITH NOS. 101 AND 102 WERE SOLD ON 17-6-2009. APART FROM THIS, THERE WERE STILL SOME FLATS LEFT UNSOLD. [PAR A 29] IN THE BACKGROUND OF THESE FACTS, THE RISK FACTORS, AS PROJECTED BY THE ASSESSEE AND ACCEPTED BY THE TRIBUNAL, NEED TO BE SEEN. UNDER CLAUSE 4 OF THE AGREEMENT, THE ASSESSEE WAS T O COLLECT A SUM OF RS. 600 PER SQ.FT. ON SUPER BUILT-UP AREA FO R THE SALE OF UNDIVIDED SHARE OF LAND TRANSFERRED TO THE BUYER. T HE SAID CLAUSE ALSO FIXES THE CEILING AS TO THE CONSIDERATI ON, WHICH WOULD BE PAID TO THE OWNER, NAMELY, AT RS. 11,51,94,000. THE CLAUSE IN THE AGREEMENT FURTHER POINTED OUT THAT THE BUILD ER HAS TO ENTER INTO A BUILDER AGREEMENT WITH THE PROPOSED PU RCHASER AND IT IS OPEN TO THE BUILDER TO FIX SUCH RATE PER SQUA RE FOOT FOR CONSTRUCTION OF THE AREA AS IT DEEMS FIT, OVER WHIC H THE OWNER HAS NO CLAIM AT ALL. THE BUILDER HAS TO PAY THE SPE CIFIED COST OF THE LAND ON THE UNDIVIDED SHARE OF SALE IN FAVOUR O F THE PURCHASER TO THE OWNER, PRO RATA TO THE BUILT-UP AR EA. A READING 22 ITA NO.315/VIZ/2013 OF THE AGREEMENT OF SALE WITH THE PURCHASERS FURTHE R POINTS OUT THAT THE BUILDER'S AGREEMENT WAS ENTERED ON THE VER Y SAME DAY WITH THE ASSESSEE. THUS, SEEN IN THE BACKGROUND OF THE DATA AVAILABLE AS REGARDS THE DATE OF SALE, THE CLAUSE I N THE AGREEMENT BETWEEN THE OWNER OF THE LAND AND THE ASS ESSEE AND THE SALE AGREEMENT WITH THE PROSPECTIVE PURCHASERS, IT IS EVIDENT THAT WHAT THE ASSESSEE HAD UNDERTAKEN IS NO T A MERE CONSTRUCTION, BUT DEVELOPING AND CONSTRUCTING OF A PROJECT, WHICH QUALIFIES FOR A DEDUCTION UNDER SECTION 80IB. AS RIGHTLY POINTED OUT BY COUNSEL APPEARING FOR THE ASSESSEE, A BARE READING OF SECTION 80-IB SHOWS THAT THE DEDUCTION C ONTEMPLATED THEREIN IS ORIENTED TOWARDS THE PROJECT AND NOT WIT H REFERENCE TO AN ASSESSEE. IT IS NO DOUBT TRUE THAT THE PROJECT H AS TO BE DONE BY THE ASSESSEE, BUT THEN, WHEN THE DEDUCTION IS SP ECIFIC ENOUGH AS REGARDS THE PARTICULAR ACTIVITY, ONE FAIL S TO SEE HOW ONE SHOULD ASSUME ANY SIGNIFICANCE IN THE MATTER OF CONSIDERING A DEDUCTION. 17. THE HON'BLE MADRAS HIGH COURT, IN THE CASE OF CIT VS. SUBBA REDDY (HUF) (2015) 121 DTR 115 (MAD.), HELD THAT FOR CLAIMING DEDUCTION UNDER SEC. 80IB(10), IT IS NOT NECESSARY THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPING AND CONSTRUCT ION OF HOUSING PROJECT SHOULD BE THE OWNER OF THE LAND. THE RELEV ANT PORTION IS REPRODUCED HEREINUNDER:- 13. IN THE ABSENCE OF ANY SPECIFIC DEFINITION FOR THE TERM BUILD- UP AREA DURING THE RELEVANT PERIOD, THE REASONING O F THE CIT(A) WHICH WAS CONFIRMED BY THE TRIBUNAL IS JUSTIFIED. NEVERTHELESS, WE FIND THAT S. 80IB(10) OF THE IT ACT SPEAKS ABOUT THE RESIDENTIAL UNIT HAVING A MAXIMUM BUILT-UP AREA OF 1,500 SQ.FT. TO CLAIM DEDUCTION. EVEN IN THE DEFINITION UNDER S . 80IB(14)(A), WHICH CAME INTO EFFECT FROM 1ST APRIL, 2005, BUILT -UP AREA WAS DEFINED AS INNER MEASUREMENTS OF THE RESIDENTIAL UN IT AT THE FLOOR LEVEL, INCLUDING THE PROJECTIONS AND BALCONIE S, AS INCREASED BY THE THICKNESS OF THE WALLS, MEANING THEREBY THE ACTUAL 23 ITA NO.315/VIZ/2013 RESIDENTIAL PORTION OF THE PROPERTY. IT, HOWEVER, CLEARLY STATES THAT IT WILL NOT INCLUDE COMMON AREA SHARED WITH OT HER RESIDENTIAL UNITS. HENCE, THE DEFINITION UNDER SEC . 80IB(14)(A), COULD AT BEST, THROW SOME LIGHT AS TO HOW THE BUILT -UP AREA OF THE RESIDENTIAL UNIT SHOULD BE COMPUTED FOR THE PUR POSE OF DETERMINING DEDUCTION UNDER SEC. 80IB(10) OF THE IT ACT. 14. FROM THE READING OF THE ABOVESAID PROVISIONS, W E FIND THAT THERE IS NO JUSTIFICATION IN INCLUDING THE CAR PARK IN THE DEFINITION OF THE BUILT-UP AREA OF THE RESIDENTIAL UNIT FOR TH E PURPOSE OF DETERMINING THE MAXIMUM BUILT-UP AREA. IN SUCH VIE W OF THE MATTER, WE ARE INCLINED TO ACCEPT THE REASONING OF THE CIT(A) DRAWING SUPPORT FROM THE TAMIL NADU APARTMENTS OWNE RSHIP ACT, 1994, WHICH WAS CONFIRMED BY THE TRIBUNAL. AC CORDINGLY, THE SECOND SUBSTANTIAL QUESTION OF LAW IS ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 18. THE HON'BLE SUPREME COURT OF INDIA, IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 243 ITR 83, WHILE DEALING WITH THE ISSUE OF REVISION UNDER SEC. 263 HELD AS UNDER:- A BARE READING OF PROVISIONS OF S. 263 MAKES IT CL EAR THAT THE PREREQUISITE TO EXERCISE OF JURISDICTION BY THE CIT SUO MOTU UNDER IT, IS THAT THE ORDER OF THE ITO IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE CIT HAS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I) THE ORDER OF THE AO SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS P REJUDICIAL TO THE INTERESTS OF THE REVENUE. I ONE OF THEM IS ABSENTI F THE ORDER OF THE ITO IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUEREC OURSE CANNOT BE HAD TO S. 263(1). THERE CAN BE NO DOUBT T HAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVE RY TYPE OF MISTAKE AN ERROR COMMITTED BY THE AO; IT IS ONLY WH EN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED, AN IN CORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN TH E SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PR INCIPLES A NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE 'PREJUDICIAL TO THE INTERESTS OF THE REVENUE' IS NO T AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UN DERSTOOD IN 24 ITA NO.315/VIZ/2013 ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NO T CONFINED TO LOSS OF TAX. THE SCHEME OF THE ACT IS TO LEVY AND C OLLECT TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THIS TASK IS ENTRUSTED TO THE REVENUE. I DUE TO AN ERRONEOUS ORDER OF THE ITO, THE REVENUE IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE PHRASE 'PREJUDICIAL TO THE INTERESTS 04 THE REVENUE' HAS T O BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A O. EVERY LOSS A REVENUE AS A CONSEQUENCE OF AN ORDER OF AO CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, FOR EXAMPLE, WHEN AN ITO ADOPTED ONE OF THE COURSES PERMISSIBLE IN LA W AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE CIT D OES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER P REJUDICIAL TO THE INTEREST! OF THE REVENUE UNLESS THE VIEW TAKEN BY T HE ITO IS UNSUSTAINABLE IN LAW .DAWJEE DADABHOY & CO, VS. S. P. JAIN & ANR. (1957) 31 ITR 872 (CAL) : TC 57R.129, CIT VS. T. NARAYANA PAI (1975) 98 ITA 422 (KAR) TC 57R.185, CIT VS. GAB RIEL INDIA LTD. (1993) 114 CTR (BORN) 81 : (1993) 203 ITR 10! (BORN) : TC 57R.213 AND CIT VS. SMT. MINALBEN S. PARIKH (199 5) 127 CTR (GUJ) 333: (1995) 21! ITR 81 (GUJ) : TC 57R.312 APPROVED; VENKATAKRISHNA RICE CO. VS. CIT (1987) 62 CTR (MAD) 152. (1987) 163 ITR 129 (MAD) : TC 57R.303 DISAPPROVED. (PARAS 5 TO 7) IT APPEARS THAT THE RESOLUTION PASSED BY THE BOARD OF THE APPELLANT-COMPANY WAS NOT PLACED BEFORE THE AO. THU S, THERE WAS NO MATERIAL TO SUPPORT THE CLAIM OF THE APPELLA NT THAT THE AMOUNT IN QUESTION REPRESENTED COMPENSATION FOR LOS S OF AGRICULTURAL INCOME. HE ACCEPTED THE ENTRY IN THE S TATEMENT OF THE ACCOUNT FILED BY THE APPELLANT IN THE ABSENCE O F ANY SUPPORTING MATERIAL AND WITHOUT MAKING ANY INQUIRY. ON THESE FACTS THE CONCLUSION THAT THE ORDER OF THE ITO WAS ERRONEOUS IS IRRESISTIBLE. THEREFORE, THE HIGH COURT HAS RIGHTLY HELD THAT THE EXERCISE OF THE JURISDICTION BY THE CIT UNDER S. 26 3(1) WAS JUSTIFIED.MALABAR INDUSTRIAL CO. LTD. VS. CIT (1991) 100 CTR (KER) 27. (1992) 198 ITR 611 (KER) TC 57R.321 AFFIRMED. (PARA 8) 25 ITA NO.315/VIZ/2013 19. AN IDENTICAL ISSUE CAME UP BEFORE THE COORDINATE BE NCH OF THIS TRIBUNAL, IN THE CASE OF SHRI SAI CONTRACTORS VS. ITO WARD-1 IN I.T.A.NO. 109/VIZ/2012, WHEREIN THE TRIBUNAL AFTER CONSIDERAT ION THE RATIO LAID DOWN BY THE HON'BLE ANDHRA PRADESH HIGH COURT IN TH E CASE OF SPECTRA SHARES AND SCRIPS PVT LTD VS. CIT, (2013) 354 ITR 3 5(AP) AND THE HON'BLE DELHI HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. SUNBEAM AUTO LTD (2011) 332 ITR 167 (DEL), HELD THAT ONCE THE ASSESSING OFFICER EXAMINED THE ISSUES, THE CIT CANNOT ASSUME THE JURI SDICTION ON THE SAME ISSUE, WHICH IS ALREADY CONSIDERED BY THE ASSE SSING OFFICER ON THE GUISE OF REVISION BY STATING THAT THE ASSESSING OFF ICER HAS CONDUCTED INADEQUATE ENQUIRY OR THERE IS A LACK OF ENQUIRY. THE RELEVANT PORTION READS AS UNDER:- 10. TO INVOKE THE PROVISIONS OF SECTION 263 OF THE ACT, THE TWIN CONDITIONS MUST BE SATISFIED I.E. THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND FURTHER IT MUST BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. UNLESS BOTH CONDITIONS ARE SATISFIED, THE CIT CANNOT ASSUME JURISDICTION TO PASS ORDER U/S 263 OF THE AC T. IT IS NOT NECESSARY THAT EVERY ORDER WHICH IS PREJUDICIAL TO THE INTEREST OF REVENUE IS ALSO ERRONEOUS. UNLESS THE A.OS ORDER I S NOT ERRONEOUS, NO ACTION CAN BE TAKEN BY THE CIT U/S 263 OF THE AC T, THIS IS BECAUSE THE TWIN CONDITIONS I.E. (1) THE ORDER IS E RRONEOUS AND (2) THE SAME IS ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE ARE NOT CO-EXISTS. IN THE PRESENT CASE, THE A.O. HAS CONDU CTED ENQUIRY BEFORE ALLOWING DEDUCTION TOWARDS WAGES AND CENTERI NG EXPENSES AND ALSO EXAMINED THE POINTS ON WHICH THE CIT WANTS FURTHER VERIFICATION. THE ASSESSING OFFICER AFTER CAREFULLY EXAMINED THE BOOKS OF ACCOUNTS AND RELEVANT VOUCHERS FURNISHED B Y THE ASSESSEE PASSED THE ASSESSMENT ORDER AS INDICATED I N HIS ORDER, WHICH IS CLEARLY EVIDENT FROM THE ASSESSMENT ORDER. THE CONTENTION OF THE CIT WAS THAT THE A.O. HAS NOT CON DUCTED PROPER 26 ITA NO.315/VIZ/2013 ENQUIRY AND ALSO NOT APPLIED HIS MIND BEFORE ALLOWI NG THE DEDUCTION. BUT, WE DO NOT AGREE WITH THE CIT FOR T HE REASON THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUATE ENQUIRY. IF THERE IS AN INADEQUATE ENQUIRY THAT WO ULD NOT BY ITSELF GIVE OCCASION TO THE CIT TO ASSUME JURISDICTION U/S 263 OF THE ACT, MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MA TTER. THE CIT CAN DO THIS ONLY, WHEN THERE IS A LACK OF ENQUIRY B Y THE ASSESSING OFFICER. IN THE PRESENT CASE, THE ASSESSMENT ORDER IS DETAILED ONE AND ALSO, THE A.O. HAS PASSED A REMARKS IN THE ASSE SSMENT ORDER ON TWO ISSUES, ON WHICH THE CIT ASSUMED JURISDICTIO N, I.E. DISALLOWANCE OF ROUND SOME EXPENDITURE OF RS. 1,00, 000/- UNDER THE HEAD WAGES AND CENTERING CHARGES AND ALSO PARTN ERS CAPITAL ACCOUNTS, WHERE THE ADDITION WAS RS. 66,825/-.THE A .O. HAD CALLED FOR EXPLANATION AND THE ASSESSEE HAS FURNISHED ITS EXPLANATION. BUT, THE CIT WAS OF THE OPINION THAT THE ASSESSING OFFICER COULD HAVE DO WELL TO EXPLORE THE POSSIBILITY OF REJECTIN G THE BOOKS OF ACCOUNTS AND ESTIMATE THE PROFIT. ACCORDING TO CIT, THE ASSESSING OFFICER HAS CONDUCTED ENQUIRY BUT, IN ADEQUATE, THE REFORE HE WANTED FURTHER ENQUIRY ON THE ISSUE ON WHICH HE ASS UMED JURISDICTION. THIS FACT HAD NOT BEEN DISPUTED BY TH E REVENUE. THE COMMISSIONER CANNOT INITIATE REVISION PROCEEDINGS, WITH A VIEW TO CONDUCT FISHING AND REVOLVING ENQUIRY IN THE MATTER S WHICH ARE ALREADY EXAMINED BY THE A.O. THE DEPARTMENT CANNOT DO FRESH ASSESSMENT IN THE GUISE OF REVISION ON THE MATTERS WHICH ARE EXAMINED AND CONCLUDED BY THE A.O. THE A.O. BEING A QUASI JUDICIAL AUTHORITY, SHALL HAVE THE AUTHORITY TO EXE RCISE RIGHT JUDGMENT AND DISCRETION ON THE BASIS OF INFORMATION AVAILABLE BEFORE HIM. IN THE PRESENT CASE ON HAND, THE ASSES SING OFFICER AFTER CONSIDERING VOUCHERS, MADE AN ROUND SOME ADDI TION OF RS.1,00,000/- WHICH IS ONE OF THE POSSIBLE VIEW AVA ILABLE FOR HIM, WHICH THE CIT SHALL NOT TERM IT AS LACK OF ENQUIRY OR NON APPLICATION OF MIND. THUS, IT CANNOT BE SAID THAT IT IS A CASE OF LACK OF ENQUIRY OR NON APPLICATION OF MIND. 20. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO APPLYING THE RATIOS OF THE CASE-LAWS DISCUSSED ABOVE AND RESPECTFULLY FOLLOWING THE COORDINATE BENCHS DECIS ION, WE ARE OF THE OPINION THAT THE ASSESSMENT ORDER PASSED BY THE ASS ESSING OFFICER IS NOT ERRONEOUS INSOFAR AS IT IS NOT PREJUDICIAL TO THE I NTEREST OF THE REVENUE. 27 ITA NO.315/VIZ/2013 THE CIT ASSUMED HIS JURISDICTION TO REVISE THE ASSE SSMENT ORDER ON THE ISSUES, WHICH ARE CONSIDERED BY THE A.O. IN THE ASS ESSMENT ORDER. THEREFORE, THE ORDER PASSED BY THE CIT UNDER SEC. 2 63 OF THE ACT IS NOT MAINTAINABLE; ACCORDINGLY, WE QUASHED THE CITS ORD ER AND RESTORE THE ASSESSMENT ORDER. 21 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DECEMBER, 2015. SD/- SD/- ( . ) ( . . . . ) ( (( ( V. DURGA RAO ) )) ) ( G. MANJUNATHA) / // / JUDICIAL MEMBER / // / ACCOUNTANT MEMBER /VISAKHAPATNAM: 3 / DATED : 23/12/2015 VR/SPS ) ' 4 / COPY OF THE ORDER FORWARDED TO :- 1. & / THE APPELLANT M/S. VASANTHA VIHAR, D.NO. 211-1-1, RAILWAY STATION ROAD, VIZIANAGARAM. 2. '(& / THE RESPONDENT ITO, WARD-2, VIZIANAGARAM. 3. 5 / THE CIT-1, VISAKHAPATNAM. 4. ' , , / // / DR, ITAT, VISAKHAPATNAM 5 . . . . / GUARD FILE / BY ORDER // TRUE COPY // 9: ( SR.PRIVATE SECRETARY ) , / // / ITAT, VISAKHAPATNAM