M/s. Automotive Ancillary Services P Ltd., CHENNAI V. DCIT, CHENNAI

ITA 491/CHNY/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51647 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P B SEKARAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Principle of natural justice
• Section: 143(3); 80IB; 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH C : CHENNAI [BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER] I.T.A NOS. 491 & 492/MDS/2011 ASSESSMENT YEARS : 2004-05 & 2005-06 M/S AUTOMOTIVE ANCILLARY SERVICES P. LTD 66, THIRD MAIN ROAD KASTURBA NAGAR, ADYAR CHENNAI 600 020 VS THE DY. CIT COMPANY CIRCLE I(1) CHENNAI [PAN - AAACA7391P] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.SRIDHAR, ADVOCATE RESPONDENT BY : SHRI P.B.SEKARAN, CIT/DR O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THE ABOVE CAPTIONED APPEALS FILED BY THE ASSE SSEE ARE DIRECTED AGAINST THE COMMON ORDER OF LD. COMMISSION ER OF INCOME TAX, CHENNAI DT.08.02.11 PASSED U/S.263 FOR ASSESSM ENT YEARS 2004- 05 & 2005-06. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT INITIALLY ORDERS FOR ASSESSMENT YEARS 2004-05 & 2005-06 WERE PASSED ON 2 5.03.09 U/S.263 BY THE LD. CIT , WHICH WERE SUBJECTED TO AP PEAL BEFORE HONBLE ITA 491&492/11 :- 2 -: ITAT, WHO REMITTED THE MATTER BACK TO LD. CIT VIDE ORDER DATED 07.07.2009 WITH A DIRECTION TO PASS A FRESH ORDERS IN ACCORDANCE WITH LAW AFTER AFFORDING OPPORTUNITY OF HEARING TO THE A SSESSEE. THE ASSESSMENTS IN THE CASE OF THE ASSESSEE FOR THE ASS ESSMENT YEARS 2004-05 & 2005-06 WERE COMPLETED U/S.143(3) ON 22.1 1.06 & 30.11.07 RESPECTIVELY ON A TOTAL INCOMES OF ` 3,02,830/- AND ` 53,34,104/-, RESPECTIVELY. THE ASSESSING OFFICER H AS ACCEPTED THE CLAIM OF DEDUCTION MADE BY ASSESSEE U/S.80-IB REGAR DING ELIGIBLE PROFIT OF UNIT-II. THE VALUE OF PLANT AND MACHINERY WAS F OUND HAVING EXCEEDED RS.1 CRORE AND THE GROSS BLOCK OF PLANT AN D MACHINERY, AS ON 31.03.2003, TO BE ` 5,20,47,456/- AND THE NET BLOCK OF ` 3,63,31,690/-. AS ON 31.03.04, THE VALUE OF GROSS BLOCK WAS FOUND TO BE ` 6,28,28,447/- AND OF NET BLOCK WAS FOUND AS ` 4,26,42,803. THEREFORE, ACCORDING TO LD. CIT, THE ASSESSEE CEASE D TO BE A SMALL SCALE INDUSTRIAL UNDERTAKING PRESCRIBED UNDER SECT ION 11(B) OF THE INDUSTRIES (DEVELOPMENT AND REGULATIONS) ACT, 1951 AND HENCE NOT ELIGIBLE FOR DEDUCTION U/S.80-IB, FOR BOTH THE ASSE SSMENT YEARS. ACCORDINGLY, IN HIS VIEW THE DEDUCTION ALLOWED U/S. 80-IB IN BOTH ASSESSMENT YEARS MADE THEM ERRONEOUS. THEREFORE, T HE LD. CIT CHOSE TO REVISE THEM U/S.263. IN THIS REGARD, NOTI CES WERE ISSUED U/S.263 AS PER LAW FOR BOTH THE ASSESSMENT YEARS. AFTER CONSIDERING THE POINT OF VIEW OF THE ASSESSEE AGAINST THE PROPO SED REVISION, HE HAS ITA 491&492/11 :- 3 -: FINALLY SET ASIDE BOTH THE ASSESSMENT ORDERS WITH A DIRECTION TO REDO THEM AFRESH. THE ASSESSEE IS NOW AGGRIEVED AND HAS RAISED COMMON GROUNDS, WHICH READ AS UNDER:- 1. THE COMMON ORDER OF THE COMMISSIONER OF INCO ME TAX, CHENNAI 600 034 DATED 8.2.2011 IN C.NO.218(17)/263/2010-11 FOR THE ABOVE MENTIONED TWO ASSESSMENT YEARS IS CONTRARY TO LAW, FACTS, AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX ERRED IN ASSUMING JURISDICTION U/S.263 OF THE ACT TO REVISIT THE ISSU E OF THE CLAIM OF DEDUCTION U/S. 80 IB OF THE ACT AFRESH IN SETTING ASIDE THE ASSESSMENT YEARS PASSED BY THE ASSESSING OFFICER ON 22.11.2006 FOR ASSESSMENT YEAR 2004-05 & 30.11.2007 FOR THE ASSESSMENT YEAR 2005-06 WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 3. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE ASSUMPTION OF JURISDICTION U/S.263 OF THE ACT ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE WA S WRONG, INCORRECT, UNJUSTIFIED, ERRONEOUS AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. 4. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE TWIN CONDITIONS OF ERROR AND PREJUDICE CAU SING TO THE REVENUE WERE NOT SATISFIED CONCURRENTLY ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND HENC E THE ORDER OF REVISION FOR THE ASSESSMENT YEARS UNDE R CONSIDERATION WAS ERRONEOUS AND INVALID. 5. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE WRONG ASSUMPTION OF JURISDICTION U/S.263 O F THE ACT FOR THE ASSESSMENT YEARS UNDER CONSIDERATIO N WOULD VITIATE THE ORDER OF REVISION INSETTING ASIDE THE ASSESSMENTS TO RE-CONSIDER THE CORRECTNESS OF THE CLAIM OF DEDUCTION U/S. 80 IB OF THE ACT. 6. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE COMMON ORDERS OF REVISION U/S.263 OF THE A CT WAS PASSED OUT OF TIME, INVALID, PASSED WITHOUT ITA 491&492/11 :- 4 -: JURISDICTION AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. 7. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE WRITTEN SUBMISSIONS FILED AT VARIOUS OCCASIONS IN THE PROCEEDINGS INITIATED AND CONDUCTE D BEFORE HIM WERE NOT TAKEN INTO CONSIDERATION IN PRO PER PERSPECTIVE. 8. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT THE FINDINGS RECORDED IN THIS REGARD IN PAGES 2 & 3 OF THE IMPUGNED ORDER WERE WRONG, INCORRECT, UNJUSTIFIED, ERRONEOUS AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. 9. THE COMMISSIONER OF INCOME TAX FAILED TO APPRECI ATE THAT IN ANY EVENT THE CONDITIONS PRESCRIBED FOR THE ELIGIBILITY OF THE DEDUCTION U/S. 80 IB OF THE ACT WERE FULFILLED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND HAVING NOT DISPUTED THE FULFILLMENT OF SUC H CONDITIONS IN THE INITIAL ASSESSMENT YEAR FORMED TH E BLOCK OF THE TAX HOLIDAY PERIOD THE ACTION IN DIREC TING THE ASSESSING OFFICER FOR EXAMINATION OF SUCH CONDITIONS IN THE SUBSEQUENT ASSESSMENT YEARS FORMED THE BLOCK OF TAX HOLIDAY PERIOD WAS WRONG, INCORRECT, UNJUSTIFIED, ERRONEOUS AND NOT SUSTAINAB LE BOTH ON FACTS AND IN LAW. 10. THE COMMISSIONER OF INCOME TAX FAILED TO APPREC IATE THAT IN THE INTERPRETATION OF THE PROVISIONS TO SUP PORT THE STAND OF THE APPELLANT EVEN THOUGH PROJECTED BEFORE HIM IN THE PROCEEDINGS INITIATED U/S.263 OF THE ACT WERE NOT TAKEN INTO CONSIDERATION IN PASSING TH E IMPUGNED ORDER. 11. THE COMMISSIONER OF INCOME TAX FAILED TO APPREC IATE THAT THE DECISION REFERRED TO AND APPLIED IN THE FI NAL DECISION TAKEN IN DIRECTING THE ASSESSING OFFICER T O REVISIT THE ISSUE OF DEDUCTION U/S.80-IB OF THE ACT WAS NOT APPRECIATED IN PROPER PERSPECTIVE AND APPLIED O UT OF CONTEXT. 12. THE COMMISSIONER OF INCOME TAX FAILED TO APPREC IATE THAT THERE WAS NO PROPER OPPORTUNITY GIVEN BEFORE PASSING THE IMPUGNED ORDER AND ANY ORDER PASSED IN ITA 491&492/11 :- 5 -: VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE IS N ULLITY IN LAW. 13. THE COMMISSIONER OF INCOME TAX FAILED TO APPREC IATE THAT NON CONSIDERATION OF THE DECISIONS CITED IN SUPPORT WOULD VITIATE THE IMPUGNED ORDER. 14. THE APPELLATE CRAVES LEAVE TO FILE ADDITIONAL GROUNDS/ARGUMENTS AT THE TIME OF HEARING. 2. WE HAVE HEARD BOTH SIDES IN DETAIL. WE HAVE ALSO P ERUSED CAREFULLY THE ENTIRE EVIDENCES AVAILABLE ON RECORD. IT IS TRITE THAT AN ORDER CAN BE REVISED ONLY AND ONLY IF TWIN CONDITIO NS OF ERROR IN THE ORDER AND PREJUDICE CAUSED TO THE REVENUE CO-EXI ST. 3. THE SUBJECT OF REVISION UNDER SECTION 263 HAS BEE N VASTLY EXAMINED AND ANALYSED BY VARIOUS COURTS INCLUDING T HAT OF HONBLE APEX COURT. THE REVISIONAL POWER CONFERRED ON THE CIT VIDE SECTION 263 IS OF VIDE AMPLITUDE. IT ENABLES THE CIT TO CA LL FOR AND EXAMINE THE RECORDS OF ANY PROCEEDING UNDER THE ACT. IT EM POWERS THE CIT TO MAKE OR CAUSE TO BE MADE SUCH AN ENQUIRY AS HE DEEM S NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE. THE ONLY LIMITATION ON HIS POWERS IS THAT HE MUST HAVE SOME MATERIAL(S) WHICH WOULD ENABLE HIM TO FORM A PRIMA FACIE OPINION THAT THE ORDER PASSED BY THE OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJ UDICIAL TO THE INTEREST OF THE REVENUE. ONCE HE COMES TO THE ABOVE CONCLUSION S ON THE BASIS OF ITA 491&492/11 :- 6 -: THE MATERIAL THAT THE ORDER OF THE ASSESSING OFFI CER IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENUE, T HE CIT IS EMPOWERED TO PASS AN ORDER AS THE CIRCUMSTANCES OF THE CASE M AY WARRANT. HE MAY PASS AN ORDER ENHANCING THE ASSESSMENT OR HE MA Y MODIFY THE ASSESSMENT. HE IS ALSO EMPOWERED TO CANCEL THE ASS ESSMENT AND DIRECT TO FRAME A FRESH ASSESSMENT. HE IS EMPOWERE D TO TAKE RECOURSE TO ANY OF THE THREE COURSES INDICATED IN SECTION 26 3. SO, IT IS CLEAR THAT THE CIT DOES NOT HAVE UNFETTERED AND UNCHEQURED DIS CRETION TO REVISE AN ORDER. THE CIT IS REQUIRED TO EXERCISE REVISION AL POWER WITHIN THE BOUNDS OF THE LAW AND HAS TO SATISFY THE NEED OF FA IRNESS IN ADMINISTRATIVE ACTION AND FAIR PLAY WITH DUE RESPEC T TO THE PRINCIPLE OF AUDI ALTERAM PARTEM AS ENVISAGED IN THE CONSTITUTIO N OF INDIA AS WELL IN SECTION 263. AS ORDER CAN BE TREATED AS ERRONE OUS IF IT WAS PASSED IN UTTER IGNORANCE OR IN VIOLATION OF ANY LAW; OR P ASSED WITHOUT TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS OR BY TAK ING INTO CONSIDERATION IRRELEVANT FACTS. THE PREJUDICE THAT IT CONTEMPL ATED UNDER SECTION 263 IS THE PREJUDICE TO THE INCOME TAX ADMINISTRATION A S A WHOLE. THE REVISION HAS TO BE DONE FOR THE PURPOSE OF SETTING RIGHT DISTORTIONS AND PREJUDICES CAUSED TO THE REVENUE IN THE ABOVE CONTE XT. THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE SEVERA L CASES REGARDING THE POWERS OF THE CIT UNDER SECTION 263 MAY BE SUMM ARIZED BELOW: ITA 491&492/11 :- 7 -: (I) THE CIT MUST RECORD SATISFACTION THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EAC H AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORR ECT APPLICATION OF LAW WILL SUFFICE FOR THE REQUIREME NT OR ORDER BEING ERRONEOUS. (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOU S ORDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS P REJUDICIAL TO THE INTEREST OF THE REVENUE AND IF THE ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW UNDER WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABLE UNDER THE LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSESSIN G OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS ITA 491&492/11 :- 8 -: MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME, THE CIT, WHILE EXERCISING HI S POWER UNDER SECTION 263, IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE ASSESSING OFFICER. (VII) THE ASSESSING OFFICER EXERCISE QUASI-JUDICIA L POWER VESTED IN HIM AND IF HE EXERCISE SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVES AS A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTIO N UNDER SECTION 263, MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BE A LETTER IN WRITING AND THE ASSESSIN G OFFICER ALLOWED THE CLAIM ON BEING SATISFIED WITH T HE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD . 4. ADVERTING TO THE FACTS OF THIS CASE, THE ASSESSEE H AD CLAIMED DEDUCTION U/S 80-IB RELATING TO UNIT-II. THE CONDI TIONS PRESCRIBED FOR ITA 491&492/11 :- 9 -: THE ELIGIBILITY ARE DEFINITELY SATISFIED AND COMPLI ED WITH BY THE ASSESSEE. THE INDUSTRIAL UNDERTAKING WHICH WAS ELIGIBLE FOR B ENEFIT OF SECTION 80IA HAS NOT EXHAUSTED THE RELIEF. IN VIEW OF THE ASSESSING OFFICER, THERE IS NO REASON WHY THE RELIEF SHOULD NOT BE DEN IED FOR THE REMAINING YEARS HITHERTO AVAILABLE UNDER SECTION 80 IA WHICH HAS BEEN SHIFTED TO SECTION 80IB WITH EFFECT FROM 1.4.2000 A S LONG AS THE CONDITIONS CONTINUED TO BE COMPLIED WITH. THERE IS NO CHANGE IN THE AVAILABLE PERIOD. THIS VIEW IS BASED ON THE VIEW T AKEN BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS NATRAJ STAT IONERY PRODUCTS P.LTD, 312 ITR 312. THE DECISION OF HON'BLE GUJARA T HIGH COURT RENDERED IN THE CASE OF CIT VS SATELLITE ENGINEERIN G LTD 113 ITR 208 AND OF HON'BLE MADRAS HIGH COURT RENDERED IN THE CA SE OF CIT VS GOPAL PLASTICS (P) LTD, 215 ITR 136 ALSO SUPPORT THE STAN D TAKEN BY THE ASSESSING OFFICER. THE DECISION OF HON'BLE KARNATA KA HIGH COURT RENDERED IN THE CASE OF CIT VS NIPPON ELECTRONICS (INDIA) PVT. LTD, 181 ITR 518 ALSO SUPPORTS THE STAND OF THE ASSESSING OF FICER. MORE PARTICULARLY, THE DECISION OF ITAT, CHANDIGARH BENC H, IN TH CASE OF MICRO INSTRUMENTS CO. VS ITO, (2008) 12 DTR(CHD)(TR IB)501 REALLY CONFIRM THE STAND TAKEN BY THE ASSESSEE AND THE ASS ESSING OFFICER. IN THAT CASE, IT HAS BEEN HELD AS UNDER: ITA 491&492/11 :- 10 - : HELD:- THE ASSESSEE INITIALLY CLAIMED DEDUCTION UNDER S. 80-IB FOR THE IMPUGNED UNIT IN THE ASST. Y R. 200102 AND THE SAME WAS ALLOWED. IN THIS ASSESSMENT YEAR, I.E. 2003-04 THE CLAIM OF THE ASSESSEE WAS IN CONTINUATI ON OF THE CLAIMS MADE IN THE EARLIER ASSESSMENT YEARS FOR THE IMPUGNED ASSESSMENT YEAR FALLS WITHIN THE NUMBER OF ASSESSMENT YEARS AS SPECIFIED IN THE SECTION IN WHI CH THE CLAIM IS ELIGIBLE. IT IS ALSO A PERTINENT FACT POSI TION THAT THE CLAIM ALLOWED TO THE ASSESSEE IN THE INITIAL ASSESS MENT YEAR OF 2001-02 AND THEREAFTER IN THE ASST. YR. 200 2-03 HAS NOT BEEN WITHDRAWN. THERE IS NO CONTROVERTION FRO M THE REVENUE EITHER AT THE STAGE OF THE PROCEEDINGS BEFO RE THE LOWER AUTHORITIES OR EVEN BEFORE THE TRIBUNAL. THUS , FACTUALLY SPEAKING THE CLAIM OF THE ASSESSEE FOR DE DUCTION UNDER S. 80-IB STANDS ADMITTED IN THE INITIAL ASSES SMENT YEAR AND ALSO THEREAFTER UPTO THE ASSESSMENT YEAR P RIOR TO THE YEAR UNDER CONSIDERATION. ON THIS FACTUAL MATRI X, THERE IS NO JUSTIFICATION FOR THE AO TO DENY THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER S. 80-IB. THE IMPLICAT ION OF THE EARLIER ASSESSMENT MADE FOR THE INITIAL ASSESSM ENT YEAR UNDER S. 143(3) IS THAT I THE ASSESSEE HAS FUL FILLED THE CONDITIONS PRESCRIBED IN THE SAID SECTION. THEREAFT ER, IT IS NOT OPEN FOR THE AO TO RE-EXAMINE THE ISSUE ALL OVE R AGAIN AND COME TO A DIFFERENT CONCLUSION IN A SUBSEQUENT YEAR WITHOUT JUSTIFYING SUCH DEPARTURE. IN THE ASSESSMEN T ORDER, THERE IS NO DISCUSSION BY THE AO ON THIS ASPECT IN SPITE OF THE FACT THAT THE ASSESSEE HAD TAKEN A SPECIFIC POS ITION BASED ON THE RELIEF ALLOWED IN THE PAST. FURTHER, T HE CLAIM ACCEPTED BY THE AO IN THE ASST. YR. 2001-02 AND THE REAFTER IN 2002-03 HAS NOT BEEN DISTURBED. CLEARLY, IN A SU CH A SITUATION, THE ONUS WHICH WAS ON THE REVENUE HAS NO T BEEN DISCHARGED. INSOFAR AS THE JUSTIFICATION FOR T HE CLAIMS OF EXEMPTION/TAX RELIEFS ARE CONCERNED THE ONUS IS ON THE ASSESSEE TO ESTABLISH AND JUSTIFY THE CLAIMS. SO, H OWEVER, IN A SITUATION LIKE THE PRESENT SITUATION, THE AO O UGHT TO HAVE JUSTIFIED HIS DEPARTURE FROM THE EARLIER ACCEP TED POSITION WHEREBY SIMILAR CLAIM HAS BEEN ACCEPTED IN THE PAST. IT IS IN THIS BACKGROUND THE ONUS WAS ON THE AO TO JUSTIFY THE DENIAL OF DEDUCTION UNDER S. 80-IB IN V IEW OF THE PAST HISTORY. THEREFORE, IN THIS BACKGROUND THERE I S NO JUSTIFICATION TO UPHOLD THE STAND OF THE IT AUTHORI TIES TO DENY THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER S. 80 -IB IN RELATION TO THE PROFITS AND GAINS.-SAURASHTRA CEMEN T & CHEMICAL INDUSTRIES LTD. VS. CIT (1979) 11 CTR (GUJ) 139 : (1980) 123 ITR 669 (GUJ) AND CIT VS. PAUL BROTHERS (1995) 216 ITR 548 (BOM) RELIED ON. 5. THEREFORE, IN ANY CASE, TWO POSSIBLE VIEWS ARE AV AILABLE ON THE ISSUE AND WHEN THE ASSESSING OFFICER TAKES ONE OF T HE POSSIBLE VIEWS, HIS ORDER CANNOT BE SAID TO BE ERRONEOUS ON THAT SC ORE. IN VIEW OF OUR ITA 491&492/11 :- 11 - : FOREGOING DISCUSSION, THE ASSESSMENT ORDERS CANNOT BE ERRONEOUS AND ONCE THE ORDERS ARE NOT FOUND TO BE ERRONEOUS, ONE OF THE TWIN CONDITIONS BECOME EXTINCT AND THE REVISIONAL POWERS U/S 263 CANNOT BE EXERCISED. ACCORDINGLY, WE SET ASIDE THE ORDERS O F THE LD. CIT PASSED U/S 263 OF THE ACT AND RESTORE THAT OF THE ASSESSIN G OFFICER. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ST AND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.08 .11. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (HARI OM MARATHA) JUDICIAL MEMBER DATED: 3 RD AUGUST, 2011 RD COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR