BT Global Communications (India) Pvt. Ltd., New Delhi V. Pr. CIT- 2, New Delhi

ITA 3341/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3742 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Transfer pricing; International transaction; Rule of consistency; Application of stay; Difference of opinion; Assessment record; Change of opinion; Capital expenditure
• Section: 143(3); 263

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.:- 3341/DEL /2017 ASSESSMENT YEAR: 2010-11 AND STAY NO. 336/DEL/-2017 ASSTT. YEAR 2010-11 BT GLOBAL C OMMUNICATIONS (INDIA) PVT. LTD. 11 TH FLOOR, EROS CORPORATE TOWER, OPP. INTERNATIONAL TRADE TOWER, NEHRU PLACE, NEW DELHI 110 019 PAN AAACG1534 VS. PR. CIT - 2 ROOM NO. 394, C.R. BUILDING NEW DELHI -110 002 (APPELLANT) (RESPONDENT) O R D E R PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 30.3.2017 PASSED BY THE LD. PR.CIT, DELHI-2 F OR ASSESSMENT YEAR ASSESSEE BY: SHRI DEEPAK CHOPRA, ADVOCATE, SHRI AMIT SHRIVASTAVA, ADVOCATE DEPARTMENT BY : SMT. APARNA KARAN, CIT(DR) DATE OF HEARING 31/10 /2017 DATE OF PRONOUNCEMENT 29/01/ 201 8 ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 2 2010-11 WHEREIN VIDE THE IMPUGNED ORDER PASSED U/S 263 OF THE INCOME TAX ACT 1961 (HEREIN AFTER CALLED THE ACT), THE L D. PR. CIT HAS HELD THAT THE FINAL ASSESSMENT ORDER DATED 31.12.2014 PASSED U/S 143(3)/144C OF THE ACT WAS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE AND HAS SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE AO TO MAKE ASESSMENT ORDER AFRESH. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AS SESSEE HAD FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT NIL AFTE R CLAIMING DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS. 20,01,05,275/- AND BOOK PROFIT OF RS. 5,33,99,601/-. SUBSEQUENTLY, THE ASSESSEE REVIS ED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 5,57,99,062/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD ENTERED INTO INTERNATIONAL TRANSACTIONS WITH ITS ASSOCIATED ENTERPRISES EXCEED ING RS. 15 CRORES AND, THEREFORE, A REFERENCE WAS MADE TO THE TRANSFER PRI CING OFFICER WHO MADE AN UPWARD ADJUSTMENT TO THE ARMS LENGTH PRICE AMOUNTING TO RS. 7,23,16,22,270/- IN RELATION TO THE INTERNATIONAL T RANSACTIONS. THE ASSESSEE FILED OBJECTIONS BEFORE THE HONBLE DRP WH O REDUCED THE ADJUSTMENT ON ACCOUNT OF ARMS LENGTH PRICE TO RS. 6 ,45,87,22,468/-. THE FINAL ASSESSMENT ORDER WAS PASSED ON 31.12.2014 AT A TOTAL INCOME OF ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 3 RS. 6,51,45,21,530/- AFTER ALLOWING ASSESSEE DEDUCT ION U/S 80IA OF THE ACT AMOUNTING TO RS. 2,00,01,05,275/-. 2.2 SUBSEQUENTLY ON 15.3.2017, THE LD. PR. CIT ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE PROPOSING ACTION U/S 263 OF THE ACT ON THE FOLLOWING ISSUES :- (I) ON EXAMINATION OF THE ASSESSMENT ORDER ALONG WITH THE DATA SUBMITTED BY THE COMPANY IN THE COURSE OF THE ASSE SSMENT PROCEEDINGS, IT IS SEEN THAT THERE ARE CERTAIN OMI SSIONS IN THE BODY OF THE ASSESSMENT ORDER, WHICH HAS RESULTED INTO WRON G DETERMINATION OF TOTAL ASSESSED INCOME . (II) ON A PERUSAL OF THE ASSESSMENT RECORD, IT IS S EEN THAT THE ASSESSEE COMPANY IS ONLY OPERATING COMPANY FOR RENDERING NET WORKING SERVICES SUCH AS SALES/MARKETING,NETWORK MARKETING, NETWORK MANAGEMENT ACTIVITIES ETC. AND WORKS FOR THE BT TELECOMMUNICAT ION PIC (AS TELECOMMUNICATION DEVELOPER) AS PER AGREEMENT AFTER GETTING LICENSE FROM DOT AND IN TURN ASSESSEE COMPANY RECEIVES REMU NERATIONS FOR THE SAME. SINCE ASSESSEE IS NOT ENGAGED IN THE BUSINESS OF INFRASTRUCTURE (TELECOMMUNICATION SERVICE) DEVELOPMENT, THEREFORE NOT ELIGIBLE FOR DEDUCTION U/S 80IA (4)(I). (III) THE ASSESSEE HAS APPLIED FOR NLD/ILD LICENSE , GRANTED BY DOT IN 2006.ASSESSEE STATED THAT GRANTING OF LND/DIL LICEN SE MERELY AMOUNTED TO MIGRATION OF IP-VPN SERVICES WHICH WAS PROVIDED BY BTGC FROM 2003 ONWARD, THEREFORE, ASSESSEE COMPANY IS ELIGIBLE FOR DEDUCTION U/S80IA EVEN AFTER THE LICENSE GRANTED AFTER MARCH, 2005. P ROVISION OF SECTION 80IA(4)(II) OF THE ACT IS SILENT ON SUCH MIGRATION OF LICENSE. THUS, IN ABSENCE OF SUCH PROVISION IN THE ACT REGARDING ALLO WANCE OF DEDUCTION U/S 80LA EVEN AFTER THE MIGRATION OF EXISTING LICEN SE TO NEW LICENSE AFTER MARCH 2005. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 801A(4)(II). ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 4 (IV) IT IS NOTICED FROM THE AUDIT REPORT FORM 10CC B THAT ASSESSEE COMPANY HAD COMMENCED ITS OPERATION FROM A Y 2004-0 5 AND DUE TO HUGE LOSSES IN STARTING YEARS FROM COMMENCEMENT, AS SESSEE HAS NOT CLAIMED DEDUCTION UPT6 A Y 2006-07.AFTERWARDS THE C OMPANY STARTED CLAIMING DEDUCTION U/S 80LA, 2007- 08 BEING INITIAL ASSESSMENT YEAR. FOR THE YEAR UNDER CONSIDERATLON I. E. 2010-11 ALLOWAN CE OF 100% DEDUCTION U/S 80IA IS NOT CORRECT AS INITIAL AY IS THE YEAR IN WHICH BUSINESS IS COMMENCED (AS DEFINED IN SECTION 801B) AND NOT THE YEARS IN WHICH THE ASSESSEE IS ELIGIBLE FOR DEDUCTION. TH EREFORE, ASSESSEE COMPANY IS ELIGIBLE FOR 100% DEDUCTION FROM A. Y. 2 004-05 TO A. Y. 2008-09 AND THEREAFTER 30% DEDUCTION FROM A. Y. 200 9~1() TO A.Y. 2013-14. (V) IN VIEW OF THE ABOVE, I FIND THAT THE ASSESSMEN T ORDER PASSED U/S 143(3)R.W.S. 144C(3) OF THE. ACT DATED 31.12.2017 F OR A.Y. 2010-11 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTE REST OF REVENUE AND HENCE NEEDS A REVIEW U/S 263 OF THE ACT'. 2.3 THE ASSESSEE FILED DETAILED REPLY TO THE SH OW CAUSE NOTICE. HOWEVER, THE LD. PR. CIT WAS NOT CONVINCED BY THE C ONTENTIONS OF THE ASSESSEE AND HE PROCEEDED TO SET ASIDE THE ORDER OF ASSESSMENT AND DIRECTED THE AO TO MAKE AN ORDER AFRESH ON THE GROU ND THAT DEDUCTION U/S 80IA (4) (I) WAS NOT ALLOWABLE TO THE ASSESSEE AS THE ASSESSEE WAS ONLY AN OPERATING COMPANY AND NOT AN ENTERPRISE ENG AGED IN THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT. ANOTHER GRO UND FOR SETTING ASIDE THE ORDER OF FINAL ASSESSMENT BY THE LD. PR. CIT WA S THAT THE ASSESSEE HAD MIGRATED TO NEW LICENCE WHEREAS PROVISIONS OF S ECTION 80IA WERE ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 5 SILENT ON THE ISSUE OF MIGRATION OF LICENCE. THE LD . PR. CIT WAS ALSO OF THE VIEW THAT THERE WAS A FACTUAL ERROR IN DETERMIN ING THE INITIAL ASSESSMENT YEAR FROM WHICH THE DEDUCTION U/S 80IA W AS ALLOWABLE TO THE ASSESSEE AND, THEREFORE, IN THE YEAR UNDER CONSIDER ATION THE ASSESSEE COMPANY WAS NOT ELIGIBLE FOR 100% DEDUCTION BUT ONL Y FOR 30% DEDUCTION. THE AO WAS DIRECTED TO MAKE A FRESH ASSE SSMENT IN LIGHT OF THE DIRECTIONS OF THE LD. PR. CIT. 2.4 NOW, THE ASSESSEE HAS APPROACHED THE ITAT AND HAS CHALLENGED THE ACTION OF THE LD. PR. CIT IN HOLDING THE FINAL ASSESSMENT ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE IN TERMS OF THE SECTION 263 OF THE ACT. 3. THE LD. AR SUBMITTED THAT THIS WAS THE FOUR TH CONSECUTIVE YEAR OF THE ASSESSEE FOR CLAIMING DEDUCTION U/S 80IA OF THE ACT AND THE ASSESSEE HAD BEEN DULY ALLOWED THE DEDUCTION IN THE EARLIER THREE ASSESSMENT YEARS. OUR ATTENTION WAS DRAWN TO ASSESSMENT ORDERS FOR ASSESSMENT YEARS 2008-09 AND 2009-10 WHICH WERE PASSED U/S 143 (3) OF THE ACT AND IN WHICH THE ASSESSEE WAS ALLOWED THE BENEFIT OF TH E DEDUCTION U/S 80IA. IT WAS SUBMITTED THAT DURING THE YEAR UNDER CONSIDE RATION ALSO THE AO HAD DULY VERIFIED THE CLAIM OF THE ASSESSEE VIS A VIS DEDUCTION U/S 80IA AND THE SAME WAS EVIDENCED BY THE ASSESEES REPLY R EGARDING ITS ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 6 ELIGIBILITY TOWARDS THE CLAIM AND THE SAME WAS AVAI LABLE ON PAGES 83 TO 105 OF THE PAPER BOOK WHICH CONTAINED THE ASSESSEE S SUBMISSIONS BEFORE THE AO. IT WAS SUBMITTED THAT IT WAS NOT THE CASE OF THE LD. PR. CIT THAT NO INQUIRY HAD BEEN CONDUCTED BY THE AO AS THE AO HAD MADE PROPER INQUIRIES AND THE ASSESSEE HAD ALSO SUBMITTE D VOLUMINOUS DOCUMENTS IN SUPPORT OF ITS CLAIM. 3.1 IT WAS FURTHER SUBMITTED THAT THE LD. PR. CIT WAS OF THE OPINION THAT THE ASSESSEE COMPANY WAS ONLY AN OPERATING COM PANY FOR RENDERING NET WORK SERVICES SUCH AS SALES/MARKETING/NETWORK M ARKETING/NET WORK MANAGEMENT ACTIVITIES ETC. WHEREAS IT WAS UNDISPUTE D THAT THE COMPANY HAD STARTED PROVIDING INTERNET SERVICES UNDER THE T ERMS OF IP-VPN LICENCES AND HAD LATER MIGRATED TO NLD/ILD LICENCE. IT WAS SUBMITTED THAT THE LD. PR. CIT HAD HIMSELF ACCEPTED THE ASSES SEE HAVING MIGRATED TO NLD/ILD LICENCE IN THE IMPUGNED ORDER. IT WAS SU BMITTED THAT THE INTERNET SERVICES WERE ELIGIBLE TELECOMMUNICATION S ERVICES AND, THEREFORE, THE OPINION OF THE LD. PR. CIT THAT THE ASSESSEE WA S ONLY AN OPERATING COMPANY WAS FACTUALLY INCORRECT AND THE SAME CANNOT BE THE BASIS FOR EXERCISING REVISIONARY POWERS. IT WAS SUBMITTED THA T SINCE THE AO HAD ALLOWED THE ASSESSEES CLAIM AFTER MAKING COMPREHEN SIVE INQUIRES, THE ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 7 INVOCATION OF REVISIONARY POWERS OF THE LD. PR. CIT WAS A MERE CHANGE OF OPINION WHICH WILL NOT FALL WITHIN THE SCOPE OF SEC TION 263 OF THE ACT. 3.2 IT WAS ALSO SUBMITTED THAT THE LD. PR. CIT S ASSERTION THAT THE INITIAL ASSESSMENT ORDER FROM WHICH THE DEDUCTION W AS ALLOWABLE WAS INCORRECT WAS ALSO FACTUALLY WRONG BECAUSE PROVISIO NS OF SECTION 80IA (2) PROVIDED THAT THE DEDUCTION CAN BE CLAIMED FOR ANY TEN CONSECUTIVE YEARS OUT OF THE FIFTEEN YEARS BEGINNING FROM THE Y EAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE STARTS PROVIDING TELE COMMUNICATION SERVICES, IT WAS SUBMITTED THAT THE CONTENTION OF T HE LD. PR. CIT THAT THE FIRST YEAR OF CLAIM HAS TO BE THE YEAR OF COMMENCEM ENT OF THE BUSINESS OPERATIONS WAS CONTRARY TO THE PROVISIONS OF THE AC T AS WELL AS CBDT CIRCULAR NO. 1/2016 DATED 15 TH FEBRUARY, 2016. 3.3 ON THE ISSUE OF MIGRATION FROM IPVPN LICENC E TO NLD/ILD LICENCE, IT WAS SUBMITTED THAT THE ASSESSEE COMPANY HAD COMM ENCED PROVIDING TELECOMMUNICATION SERVICES PRIOR TO MARCH 31, 2005 UNDER THE TERMS OF IP-VPN LICENCE GRANTED BY DOT AND DURING THE YEAR 2 005 THE DOT ISSUED A DIRECTIVE MANDATORILY REQUIRING MIGRATION OF IP-V PN SERVICES INTO NLD/ILD. IT WAS SUBMITTED THAT THE ASSESSEE COMPANY CONTINUED TO OFFER THE ELIGIBLE TELECOMMUNICATION SERVICES WITHOUT ANY CHANGE. IT WAS SUBMITTED THAT THE GRANT OF NLD/ILD LICENCE DID NOT RESULT IN CREATION OF ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 8 A NEW UNDERTAKING. IT WAS SUBMITTED THAT THE LD. PR . CITS CONTENTION THAT THE NEW UNDERTAKING HAD BEEN CREATED ON MIGRAT ION FROM ONE LICENCE TO ANOTHER WAS INCORRECT THE ASSESSEE HAD C ONTINUED TO RENDER THE SAME TELECOMMUNICATION SERVICES AS WERE BEING O RIGINALLY RENDERED UNDER THE IP-VPN LICENCE. IT WAS ALSO SUBMITTED THA T THE SAME INFRASTRUCTURE CONTINUED TO BE USED BY THE ASSESSEE UNDER THE PRE EXISTING ARRANGEMENT AND FURTHER THE SAME OPERATION AL, TECHNICAL, MARKETING AND ADMINISTRATIVE PERSONNEL WERE CONTINU ED TO BE USED BY THE ASSESSEE ON MIGRATION TO THE NEW LICENCE. IT WA S ALSO SUBMITTED THAT THE SAME BANK ACCOUNT OF THE ASSESSEE FOR THE RECEI PT AND PAYMENTS CONTINUED TO BE USED. OUR ATTENTION WAS ALSO DRAWN TO CLAUSE E(II) OF THE PRESS NOTE ISSUED BY THE DOT WHICH PERMITTED THE AS SESSEE TO ADJUST THE ENTRY FEE PAID TO THE DOT FOR PROVIDING IP-VPN SERV ICES AGAINST THE ENTRY FEES PAYABLE FOR OBTAINING NLD/ILD LICENCE. IT WAS SUBMITTED THAT IT WAS JUST AN EXTENSION OF THE EXISTING UNDERTAKING AND NO NEW UNDERTAKING HAD COME INTO EXISTENCE AS ALLEGED BY THE LD. PR. C IT. 3.4 OUR ATTENTION WAS ALSO DRAWN TO PAGE 3 OF TH E TRANSFER PRICING STUDY OF THE ASSESSEE WHICH CONTAINED THE ASSESSEE S PROFILE. IT WAS SUBMITTED THAT AS PER THE TRANSFER PRICING STUDY, T HE ASSESSEES ACTIVITIES INCLUDED PROVIDING TELECOM SERVICES UNDER ILD/NISP LICENCE AND, THUS, ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 9 THE LD. PR. CIT HAD ERRED IN HOLDING THAT THE ASSES SEE WAS ONLY INTO PROVIDING OPERATING SUPPORT. IT WAS ALSO SUBMITTED THAT EVEN ON THE PRINCIPLE OF CONSISTENCY THE ASSESSEE WAS ALLOWABLE FOR DEDUCTION U/S 80IA AS THERE WAS NO CHANGE IN THE FACTUAL CIRCUMST ANCES. 4. IN RESPONSE, THE LD. CIT (DR) READ OUT EXTEN SIVELY FROM THE ORDER PASSED U/S 263 AND ALSO REFERRED TO THE SHOW CAUSE NOTICE ISSUED BY THE LD. PR. CIT. THE LD. CIT (DR) VEHEMENTLY ARGUED TH AT THE ASSESSEE WAS NOT AN INDEPENDENT SERVICE PROVIDER BUT WAS A SUBSI DIARY OF THE PARENT COMPANY AND WAS GETTING REIMBURSEMENT FOR PROVIDING SERVICES TO THE PARENT COMPANY. IT WAS SUBMITTED THAT THE LD. PR. C IT WAS LEGALLY CORRECT IN PASSING THE ORDER U/S 263 AS THE ASSESSE E DID NOT PROVIDE THE SERVICES ON A STAND-ALONE BASIS. THE LD. CIT (DR) A LSO SUBMITTED THAT EACH YEAR ASSESSMENT HAS TO BE CONSIDERED SEPARATEL Y AND THE PRINCIPLE OF RES JUDICATA DID NOT APPLY IN INCOME TAX PROCEEDINGS. IT WAS SU BMITTED THAT THE ORDER PASSED U/S 263 BE UPHELD. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HA VE PERUSED THE MATERIAL ON RECORD. THE LD. AR HAS DRAWN OUR ATTENTION TO VARIOUS PAGES IN THE PAPER BOOK WHICH SUPPORT THE ASSESSEES CLAI MS THAT THE A.O., DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT, HAD MADE EXTENSIVE ENQUIRIES ABOUT THE ASSESSEES CLAIM OF D EDUCTION U/S 80IA. ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 10 THEREFORE, IT WILL BE WRONG TO INFER THAT THERE HAS BEEN NO APPLICATION OF MIND BY THE A.O WHILE CONSIDERING THE CLAIM OF THE ASSESSEE ALTHOUGH HE MIGHT NOT HAVE EXPRESSED IT IN TERMS OF A LENGTHY D ISCUSSION ON THE ISSUE. THE HONBLE DELHI HIGH COURT IN CIT VS. SUN BEAM AUTO LTD 332 ITR 167 (DEL) HAS OPINED IN PARA 17 OF ITS ORDER AS UNDER:- 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF TH E COUNSEL ON THE OTHER SIDE AND HAVE GONE THROUGH THE RECORDS . THE FIRST ISSUE THAT ARISES FOR OUR CONSIDERATION IS ABOUT TH E EXERCISE OF POWER BY THE COMMISSIONER OF INCOME-TAX UNDER SECTI ON 263 OF THE INCOME- TAX ACT. AS NOTED ABOVE, THE SUBMISS ION OF LEARNED COUNSEL FOR THE REVENUE WAS THAT WHILE PASS ING THE ASSESSMENT ORDER, THE ASSESSING OFFICER DID NOT CON SIDER THIS ASPECT SPECIFICALLY WHETHER THE EXPENDITURE IN QUES TION WAS REVENUE OR CAPITAL EXPENDITURE. THIS ARGUMENT PRED ICATES ON THE ASSESSMENT ORDER, WHICH APPARENTLY DOES NOT GIV E ANY REASONS WHILE ALLOWING THE ENTIRE EXPENDITURE AS RE VENUE EXPENDITURE. HOWEVER, THAT BY ITSELF WOULD NOT BE I NDICATIVE OF THE FACT THAT THE ASSESSING OFFICER HAD NOT APPLIED HIS MIND ON THE ISSUE. THERE ARE JUDGMENTS GALORE LAYING DOWN TH E PRINCIPLE THAT THE ASSESSING OFFICER IN THE ASSESSM ENT ORDER IS NOT REQUIRED TO GIVE DETAILED REASON IN RESPECT OF EACH AND EVERY ITEM OF DEDUCTION, ETC. THEREFORE, ONE HAS TO SEE FROM THE RECORD AS TO WHETHER THERE WAS APPLICATION OF M IND BEFORE ALLOWING THE EXPENDITURE IN QUESTION AS REVENUE EXP ENDITURE. LEARNED COUNSEL FOR THE ASSESSEE IS RIGHT IN HIS SU BMISSION THAT ONE HAS TO KEEP IN MIND THE DISTINCTION BETWEEN LA CK OF INQUIRY AND INADEQUATE INQUIRY. IF THERE WAS ANY INQUIRY, EVEN INADEQUATE THAT WOULD NOT BY ITSELF GIVE OCCAS ION TO THE COMMISSIONER TO PASS ORDERS UNDER SECTION 263 OF TH E ACT, MERELY BECAUSE HE HAS A DIFFERENT OPINION IN THE MA TTER. IT IS ONLY IN CASES OF LACK OF INQUIRY THAT SUCH A COUR SE OF ACTION ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 11 WOULD BE OPEN. IN GABRIEL INDIA LTD. [1993] 203 IT R 108 (BOM), LAW ON THIS ASPECT WAS DISCUSSED IN THE FOLL OWING MANNER (PAGE 113): '... FROM A RENDING OF SUB-SECTION (1) OF SECTION 2 63, IT IS CLEAR THAT THE POWER OF SUO MOTU REVISION CAN BE EXERCISE D BY THE COMMISSIONER ONLY IF, ON EXAMINATION OF THE RECORDS OF ANY PROCEEDINGS UNDER THIS ACT, HE CONSIDERS THAT ANY O RDER PASSED THEREIN BY THE INCOME-TAX OFFICER IS ERRONE OUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REV ENUE. IT IS NOT AN ARBITRARY OR UNCHARTERED POWER, IT CAN BE EXERCI SED ONLY ON FULFILLMENT OF THE REQUIREMENTS LAID DOWN IN SUB-SE CTION (1). THE CONSIDERATION OF THE COMMISSIONER AS TO WHETHER AN ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE I NTERESTS OF THE REVENUE, MUST BE BASED ON MATERIALS ON THE RECORD O F THE PROCEEDINGS CALLED FOR BY HIM. IF THERE ARE NO MATE RIALS ON RECORD ON THE BASIS OF WHICH IT CAN BE SAID THAT TH E COMMISSIONER ACTING IN A REASONABLE MANNER COULD HA VE COME TO SUCH A CONCLUSION, THE VERY INITIATION OF PROCEE DINGS BY HIM WILL BE ILLEGAL AND WITHOUT JURISDICTION. THE COMMIS SIONER CANNOT INITIATE PROCEEDINGS WITH A VIEW TO STARTING FISHING AND ROVING ENQUIRIES IN MATTERS OR ORDERS WHICH ARE ALR EADY CONCLUDED. SUCH ACTION WILL BE AGAINST THE WELL-ACC EPTED POLICY OF LAW THAT THERE MUST BE A POINT OF FINALITY IN AL L LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTI VATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MU ST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI-JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY. (SEE PARASHURAM POTTERY WORKS CO. LTD. V. ITO [1977 ] 106 ITR 1 (SC) AT PAGE 10).. FROM THE AFORESAID DEFINITIONS IT IS CLEAR THAT AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDAN CE WITH LAW. IF AN INCOME-TAX OFFICER ACTING IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSESSMENT, THE SAME CANNOT BE BRAN DED AS ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 12 ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCOR DING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABOR ATELY. THIS SECTION DOES NOT VISUALIZE A CASE OF SUBSTITUT ION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE INCOME- TAX OFFICER, WHO PASSED THE ORDER UNLESS THE DECISION I S HELD TO BE ERRONEOUS. CASES MAY BE VISUALIZED WHERE THE INCOME -TAX OFFICER WHILE MAKING AN ASSESSMENT EXAMINES THE ACC OUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME EITHER BY ACCEPTING THE ACCOUNTS OR BY MAKING SOME ESTIMAT E HIMSELF. THE COMMISSIONER, ON PERUSAL OF THE RECORD S, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICE R CONCERNED WAS ON THE LOWER SIDE AND LEFT TO THE COMMISSIONER HE WOULD HAVE ESTIMATED THE INCOME AT A FIGURE HIGHER THAN T HE ONE DETERMINED BY THE INCOME- TAX OFFICER. THAT WOULD N OT VEST THE COMMISSIONER WITH POWER TO REEXAMINE THE ACCOUN TS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE. IT IS BECAUSE THE INCOME-TAX OFFICER HAS EXERCISED THE QUASI-JUDIC IAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE FORMED T O BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIONER DOES NOT FEEL SATISFIED WITH THE CONCLUSION . . . THERE MUST BE S OME PRIMA FACIE MATERIAL ON RECORD TO SHOW THAT TAX WHICH WAS LAWFULLY EXIGIBLE HAS NOT BEEN IMPOSED OR THAT BY THE APPLIC ATION OF THE RELEVANT STATUTE ON AN INCORRECT OR INCOMPLETE INTE RPRETATION A LESSER TAX THAN WHAT WAS JUST HAS BEEN IMPOSED. . . WE MAY NOW EXAMINE THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE POWERS OF THE COMMISSIONER SET OUT ABOVE. TH E INCOME-TAX OFFICER IN THIS CASE HAD MADE ENQUIRIES IN REGARD TO THE NATURE OF THE EXPENDITURE INCURRED BY THE AS SESSEE. THE ASSESSEE HAD GIVEN DETAILED EXPLANATION IN THAT REG ARD BY A LETTER IN WRITING. ALL THESE ARE PART OF THE RECORD OF THE CASE. EVIDENTLY, THE CLAIM WAS ALLOWED BY THE INCOME-TAX OFFICER ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSE E. SUCH ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 13 DECISION OF THE INCOME-TAX OFFICER CANNOT BE HELD T O BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. 5.1 SIMILARLY, THE HONBLE DELHI HIGH COURT IN ITO VS. DG HOUSING PROJECTS LTD. 343 ITR 329 (DEL) OPINED AS UNDER: 16. THUS, IN CASES OF WRONG OPINION OR FINDING ON MERITS, THE CIT HAS TO COME TO THE CONCLUSION AND H IMSELF DECIDE THAT THE ORDER IS ERRONEOUS, BY CONDUCTING N ECESSARY ENQUIRY, IF REQUIRED AND NECESSARY, BEFORE THE ORDE R UNDER SECTION 263 IS PASSED. IN SUCH CASES, THE ORDER OF THE ASSESSING OFFICER WILL BE ERRONEOUS BECAUSE THE ORD ER PASSED IS NOT SUSTAINABLE IN LAW AND THE SAID FINDING MUST BE RECORDED. CIT CANNOT REMAND THE MATTER TO THE ASSES SING OFFICER TO DECIDE WHETHER THE FINDINGS RECORDED ARE ERRONEOUS. IN CASES WHERE THERE IS INADEQUATE ENQUI RY BUT NOT LACK OF ENQUIRY, AGAIN THE CIT MUST GIVE AND RE CORD A FINDING THAT THE ORDER/INQUIRY MADE IS ERRONEOUS. T HIS CAN HAPPEN IF AN ENQUIRY AND VERIFICATION IS CONDUCTED BY THE CIT AND HE IS ABLE TO ESTABLISH AND SHOW THE ERROR OR M ISTAKE MADE BY THE ASSESSING OFFICER, MAKING THE ORDER UNSUSTAINABLE IN LAW. IN SOME CASES POSSIBLY THOUGH RARELY, THE CIT CAN ALSO SHOW AND ESTABLISH THAT THE FACTS ON RECORD OR INFERENCES DRAWN FROM FACTS ON RECORD PER SE JUST IFIED AND MANDATED FURTHER ENQUIRY OR INVESTIGATION BUT THE A SSESSING OFFICER HAD ERRONEOUSLY NOT UNDERTAKEN THE SAME. HO WEVER, THE SAID FINDING MUST BE CLEAR, UNAMBIGUOUS AND NOT DEBATABLE. THE MATTER CANNOT BE REMITTED FOR A FRES H DECISION TO THE ASSESSING OFFICER TO CONDUCT FURTHER ENQUIRI ES WITHOUT A FINDING THAT THE ORDER IS ERRONEOUS. FINDING THAT THE ORDER IS ERRONEOUS IS A CONDITION OR REQUIREMENT WHICH MUST BE SATISFIED FOR EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT. IN SUCH MATTERS, TO REMAND THE MATTER/ISSUE TO THE ASSESSING OFFICER WOULD IMPLY AND MEAN THE CIT HAS NOT EXAMINED AND DECIDED WHETHER OR NOT THE ORDER IS ER RONEOUS BUT HAS DIRECTED THE ASSESSING OFFICER TO DECIDE TH E ASPECT/QUESTION. ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 14 17. THIS DISTINCTION MUST BE KEPT IN MIND BY THE CI T WHILE EXERCISING JURISDICTION UNDER SECTION 263 OF THE ACT AND IN THE ABSENCE OF THE FINDING THAT THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, EXERCISE OF JURISDICTION UNDER THE SAID SECTION IS NOT SUSTAINABLE. IN MOST CASES OF ALLEGED 'INADEQUATE INVESTIGATION', IT WILL BE DIFF ICULT TO HOLD THAT THE ORDER OF THE ASSESSING OFFICER, WHO HAD CO NDUCTED ENQUIRIES AND HAD ACTED AS AN INVESTIGATOR, IS ERRO NEOUS, WITHOUT CIT CONDUCTING VERIFICATION/INQUIRY. THE OR DER OF THE ASSESSING OFFICER MAY BE OR MAY NOT BE WRONG. CIT C ANNOT DIRECT RECONSIDERATION ON THIS GROUND BUT ONLY WHEN THE ORDER IS ERRONEOUS. AN ORDER OF REMIT CANNOT BE PASSED BY THE CIT TO ASK THE ASSESSING OFFICER TO DECIDE WHETHER THE ORDER WAS ERRONEOUS. THIS IS NOT PERMISSIBLE. AN ORDER IS NOT ERRONEOUS, UNLESS THE CIT HOLD AND RECORDS REASONS WHY IT IS E RRONEOUS. AN ORDER WILL NOT BECOME ERRONEOUS BECAUSE ON REMIT , THE ASSESSING OFFICER MAY DECIDE THAT THE ORDER IS ERRO NEOUS. THEREFORE CIT MUST AFTER RECORDING REASONS HOLD THA T THE ORDER IS ERRONEOUS. THE JURISDICTIONAL PRECONDITION STIPULATED IS THAT THE CIT MUST COME TO THE CONCLUSION THAT TH E ORDER IS ERRONEOUS AND IS UNSUSTAINABLE IN LAW. WE MAY NOTIC E THAT THE MATERIAL WHICH THE CIT CAN RELY INCLUDES NOT ON LY THE RECORD AS IT STANDS AT THE TIME WHEN THE ORDER IN Q UESTION WAS PASSED BY THE ASSESSING OFFICER BUT ALSO THE RE CORD AS IT STANDS AT THE TIME OF EXAMINATION BY THE CIT [SEE C IT VS. SHREE MANJUNATHESWARE PACKING PRODUCTS, 231 ITR 53 ( SC)]. NOTHING BARS/PROHIBITS THE CIT FROM COLLECTING AND RELYING UPON NEW/ADDITIONAL MATERIAL/EVIDENCE TO SHOW AND S TATE THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOU S. 18. IT IS IN THIS CONTEXT THAT THE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INCOME TAX, (2000) 243 ITR 83 (SC), HAD OBSERVED THAT THE PHRASE PREJU DICIAL TO THE INTEREST OF REVENUE HAS TO BE READ IN CONJUNCTI ON WITH AN ERRONEOUS ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL T O THE INTEREST OF REVENUE. THUS, WHEN THE ASSESSING OFFIC ER HAD ADOPTED ONE OF THE COURSES PERMISSIBLE AND AVAILABL E TO HIM, AND THIS HAS RESULTED IN LOSS TO REVENUE; OR TWO VI EWS WERE ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 15 POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VI EW WITH WHICH THE CIT MAY NOT AGREE; THE SAID ORDERS CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INT EREST OF REVENUE UNLESS THE VIEW TAKEN BY THE ASSESSING OFFI CER IS UNSUSTAINABLE IN LAW. IN SUCH MATTERS, THE CIT MUST GIVE A FINDING THAT THE VIEW TAKEN BY THE ASSESSING OFFICE R IS UNSUSTAINABLE IN LAW AND, THEREFORE, THE ORDER IS E RRONEOUS. HE MUST ALSO SHOW THAT PREJUDICE IS CAUSED TO THE IN TEREST OF THE REVENUE. 5.2 AGAIN, THE HONBLE DELHI HIGH COURT IN CIT VS. DELHI VS. NEW DELHI TELEVISION LTD. 360 ITR (DEL) HELD AS UNDER:- 18. IN THE PRESENT CASE, JURISDICTIONAL PRE-CONDITI ONS STIPULATED IN SECTION 263 OF THE ACT ARE NOT SATISF IED. THE ASSESSING OFFICER DID CONDUCT INVESTIGATION AND ACC EPTED THE CLAIM UNDER SECTION 80HHF ON BEING SATISFIED THAT T HE CONDITIONS STIPULATED IN THE SAID SECTION ARE SATIS FIED. IT IS NOT THE CASE OF 'NO INVESTIGATION'. IT IS ALSO NOT A CA SE WHERE PER- SE FURTHER INVESTIGATION WAS REQUIRED. COMMISSIONER IN HIS ORDER, AS NOTICED ABOVE, HAS BEEN TENTATIVE AND HES ITANT AND DID NOT DECIDE WHETHER THE CLAIM UNDER SECTION 80 H HF HAS BEEN RIGHTLY ALLOWED BY THE ASSESSING OFFICER. HE H AS NOTED THE STAND OF THE RESPONDENT, BEFORE HIM AND BEFORE THE ASSESSING OFFICER, BUT REFRAINED FROM FORMING ANY O PINION AS TO WHETHER THE ACCEPTANCE OF THE CLAIM BY THE ASSESSIN G OFFICER WAS ERRONEOUS OR NOT. POWER OF REVIEW UNDER SECTION 263 OF THE ACT CAN BE INVOKED ONLY IF THE ORDER IS ERRONEO US AND FOR THIS THE COMMISSIONER MUST RECORD THE REASON THAT T HE ORDER WAS ERRONEOUS AND THE CLAIM UNDER SECTION 80FIFIF WAS WRONGLY ALLOWED. ONCE THE SAID CLAIM WAS CONSIDERED AND EXAMINED BY THE ASSESSING OFFICER, COMMISSIONER CAN NOT SET ASIDE THE ORDER WITHOUT RECORDING CONTRARY FINDING. THIS WILL BE CONTRARY TO SECTION 263 OF THE ACT. IN PARAGRAPH 6 OF THE ORDER ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 16 DATED 29TH MARCH, 2007, THE COMMISSIONER USES THE EXPRESSIONS 'ERRONEOUS AND PREJUDICIAL TO THE INTERE ST OF REVENUE' BUT DID NOT CITE ANY REASON OR GROUND FOR THE SAID CONCLUSION. USE OF THE WORDS WITHOUT ELUCIDATION IN DICATES, THAT THE SAID OBSERVATION ARE PRESUMPTIVE OR A SUSP ICION AND MERE REPETITION OF WORDS BUT THIS DOES NOT SATISFY THE REQUIREMENTS UNDER SECTION 263 OF THE ACT. ORDER UN DER SECTION 263 MUST BE CLEAR AND MUST SET OUT LOGICAL GROUND AND REASON AS TO WHY THE ASSESSMENT IS ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF THE REVENUE. DECISION IN GEE VE E ENTERPRISES (SUPRA) IS NOT APPLICABLE AS ENQUIRY WA S CONDUCTED BY THE ASSESSING OFFICER AND HE FORMED AN AFFIRMATI VE OPINION ACCEPTING THE CLAIM OF THE RESPONDENT. 19. IN DLF POWER LTD. (SUPRA), A SIMILAR REASONING AND RATIO WAS GIVEN AND REFERENCE WAS MADE TO THE DECIS ION OF A FULL BENCH OF DELHI HIGH COURT IN CIT VS. KELVINATO R OF INDIA (2012) 256 ITR 1 (DEL.). IN THE SAID CASE, ORDER OF REMAND TO THE COMMISSIONER OF INCOME TAX FOR FRESH DECISION W AS PASSED AFTER NOTICING THAT THE TRIBUNAL HAD CONSIDERED THE QUESTION OF BIFURCATION OF INTEREST INCOME WITH REFERENCE TO TH E DEDUCTION UNDER SECTION 80IA. IT WAS RECORDED THAT THIS BIFURCATION AND THE NATURE OF INCOME WAS ACCEPTED BY THE TRIBUNAL T HOUGH THE COMMISSIONER OF INCOME TAX HAD ONLY GIVEN A TENTATI VE OPINION THAT SOME ELEMENTS OF INCOME MAY BE ELIGIBLE. TRIBU NAL HAD GIVEN ITS OWN FACTUAL FINDING WITHOUT THERE BEING V ERIFICATION OR FULL AND PROPER REBUTTAL. IN THESE CIRCUMSTANCES, I T WAS OBSERVED THAT WHERE AN ASSESSING OFFICER DOES NOT C ARRY OUT INVESTIGATION WHICH WAS PER SE REQUIRED, THERE WOUL D BE AN ERROR IN THE SENSE THAT THE ASSESSING OFFICER HAS F AILED TO CARRY OUT THE REQUISITE INQUIRY. THIS WAS AGAIN A CASE FA LLING UNDER THE EXCEPTION CARVED OUT AND MENTIONED IN THE CASE OF DG HOUSING PROJECTS LTD. (SUPRA). ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 17 20. IN VIEW OF THE AFORESAID DISCUSSION, QUESTION NO. 2 HAS TO BE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE R ESPONDENT ASSESSEE AND IT HAS TO BE HELD THAT THE ASSESSING O FFICER DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, HAD DELVED DEEP INTO THE QUESTION OF DEDUCTION UNDER SECTION 80HHF AND WAS SATISFIED THAT THE DEDUCTION MADE WERE AS PER LAW. QUESTION NO. 1 IS ALSO ANSWERED IN FAVOUR OF THE RESPONDENT ASSE SSEE AND AGAINST THE REVENUE. 5.3 IN THE INSTANT APPEAL BEFORE US, THE AO HAS C ONDUCTED AN ENQUIRY. THE AO HAS ASKED THE ASSESSEEE TO SUBSTANTIATE ITS CLAIM OF DEDUCTION AND THE ASSESSEE, IN COMPLIANCE, HAS GIVEN A DETAIL ED REPLY. THE AO, HOWEVER, HAS NOT LAUNCHED A LENGTHY DISCUSSION ON T HE ISSUE OF DEDUCTION BUT THAT DOES NOT LEAD TO AN INFERENCE TH AT THERE HAS BEEN A LACK OF ENQUIRY ON HIS PART ON THE ISSUE. IT IS CLE AR THAT AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS NOT IN ACCORDAN CE WITH LAW. IF AN AO, ACTING IN ACCORDANCE WITH LAW, MAKES A CERTAIN ASSE SSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE LD. PRINCIPAL COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY. THIS SECTION DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF THE JUDGMENT OF THE COMMISSIONER FOR THAT OF THE AO. THEREFORE, IT CANNOT BE HELD THAT IN THE INSTANT CASE THE AOS OR DER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WITHI N THE TERMS OF SECTION 263 OF THE ACT. ONCE THE SAID CLAIM WAS CONSIDERED AND EXAMINED BY ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 18 THE ASSESSING OFFICER, THE LD. PR. COMMISSIONER CAN NOT SET ASIDE THE ORDER WITHOUT RECORDING CONTRARY FINDING. THIS WILL BE CONTRARY TO SECTION 263 OF THE ACT. 5.4 FURTHER, THE YEAR UNDER CONSIDERATION IN THE FO URTH CONSECUTIVE YEAR IN WHICH THE ASSESSEE HAD CLAIMED DEDUCTION U/ S 80IA. IT IS A MATTER OF RECORD THAT THE ASSESSEES CLAIM WAS ACCE PTED BY THE AO FOR ASSESSMENT YEARS 2008-09 AND 2009-10 BY ORDERS PASS ED U/S 143(3) OF THE ACT. IT IS ALSO A MATTER OF RECORD THAT THERE I S NO CHANGE IN THE FACTS THIS YEAR AS COMPARED TO THE EARLIER ASSESSMENT YEA RS. THE HONBLE APEX COURT IN THE CASE OF SHASUN CHEMICALS AND DRUGS LTD . VS. CIT REPORTED IN 388 ITR 1 (SC), WHILE ADJUDICATING AN ISSUE RELAT ING TO SECTION 35D, HELD THAT WHERE A BENEFIT IS ALLOWED TO THE ASSESSE E FOR FIRST TWO ASSESSMENT YEARS, THE SAME CANNOT BE DENIED IN THE SUBSEQUENT BLOCK PERIOD AS ONCE THE CLAIM OF THE ASSESSEE WAS ACCEPT ED AND THE CLOCK HAD STARTED RUNNING IN FAVOUR OF THE ASSESSEE, IT H AD TO COMPLETE THE ENTIRE PERIOD OF TEN YEARS. THE SAME ANALOGY CAN BE APPLIED TO PROVISIONS OF SECTION 80IA ALSO. 5.5 FURTHER, THE VIEW OF THE LD. PR. CIT, ON THE FA CTS OF THE CASE, AT BEST CAN BE TERMED AS HAVING A DIFFERENT VIEW FRO M THAT OF THE AO. THE LD. PR. CIT HAS NOT BROUGHT ON RECORD ANY FINDING A S TO WHY THE VIEW OF ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 19 THE AO WAS NOT LEGALLY SUSTAINABLE. IN OUR CONSIDER ED OPINION, SECTION 263 DOES NOT ENVISAGE THE SUBSTITUTION OF THE VIEW OF THE AO BY THE VIEW OF THE LD. PR. CIT ESPECIALLY WHEN THERE IS NO LEGAL INFIRMITY IN THE VIEW TAKEN BY THE AO. THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CLAIM OF DEDUCTION, IN VIEW OF THE FACTUAL MATRIX O F THE CASE AND RESPECTFULLY FOLLOWING THE RATIO OF THE VARIOUS JUDI CIAL PRONOUNCEMENTS AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION T HAT THE IMPUGNED ACTION OF THE LD. CIT U/S 263 OF THE ACT WAS PATENT LY ILLEGAL AND LIABLE TO BE QUASHED. THE PROCEEDINGS U/S 263 OF THE ACT ARE ACCORDINGLY QUASHED. 6. IN THE FINAL RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. STAY NO. 336/DEL/2017 7. SINCE THE APPEAL HAS BEEN HEARD WE DISMISS THE STAY APPLICATION OF THE ASSESSEE AS HAVING BECOME INFRUCTUOUS. ITA NO. 3341//DEL/2017 BT GLOBAL COMMUNICATIONS (INDIA) PRIVATE L TD. VS. PR.CIT 20 8. IN THE FINAL RESULT, THE STAY APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.1.2018. SD/- SD/- (B.P. JAIN) (S UDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.01. 2018 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI