M/s. Rohan & Rajdeep Infrastructure, Pune V. Pr.Commissioner of Income Tax -2, Pune

ITA 633/PUN/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9313 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 16-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Depreciation; Opportunity of being heard; Assessment record; Capital expenditure
• Section: 143(3); 37(1); 32; 263

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.633/PUN/2017 / ASSESSMENT YEAR : 2012-13 M/S. ROHAN & RAJDEEP INFRASTRUCTURE, KHANDELWAL JAIN & ASSOCIATES, FIRST FLOOR, ALANKAR CINEMA BUILDING, NEAR PUNE RAILWAY STATION, PUNE 411 001. PAN : AAFFR9455F. . / APPELLANT V/S PRL.COMMISSIONER OF INCOME TAX 2, PUNE. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK. REVENUE BY : SHRI RAJEEV KUMAR, CIT. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF PR.COMMISSIONER OF INCOME TAX 2, PUNE DT.02.02.2 017 U/S 263 OF THE ACT FOR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER : ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN EXECUTION OF INFRASTRUCTURE CONTRACTS / PROJECTS. ASSES SEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2012-13 ON / DATE OF HEARING : 07.02.2018 / DATE OF PRONOUNCEMENT: 23.02.2018 2 17.09.2012 DECLARING TOTAL INCOME OF RS.NIL. THE CASE WAS SELE CTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U NDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 01.07.2014 AN D THE TOTAL INCOME WAS DETERMINED AT RS.NIL AFTER ALLOWING THE DEDUCTION OF RS.46,04,493/- U/S 80IA(4) OF THE ACT AS CLAIMED BY ASSES SEE. SUBSEQUENTLY LD. PCIT CALLED FOR THE ASSESSMENT RECORD S OF ASSESSEE. ON EXAMINATION OF RECORDS OF ASSESSMENT, HE WAS OF THE VIEW THAT THE ORDER PASSED BY THE AO WAS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDING TO LD. PCIT T HE ORDER PASSED BY THE AO U/S 143(3) WAS ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF REVENUE FOR TWO REASONS. THE FIRST REASON ACC ORDING TO LD. PCIT WAS THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 80IA(4) OF THE ACT BUT WAS ALLOWED BY AO. ACCORDING T O LD. PCIT ASSESSEE WAS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IA(4) O F THE ACT BECAUSE ASSESSEE WAS A PARTNERSHIP FIRM. ACCORDING TO HIM , TO BE ELIGIBLE TO CLAIM DEDUCTION U/S 80IA(4) OF THE ACT, ASSESSEE SHOULD EITHER BE A COMPANY OR A CONSORTIUM OF COMPANIES OR A B ODY ESTABLISHED OR CONSTITUTED UNDER THE CENTRAL OR STATE A CT. ACCORDING TO THE LD. PCIT, SINCE ASSESSEE WAS A PARTNERSHIP FIRM, IT CANNOT BE CONSIDERED TO BE A CONSORTIUM SO AS TO BE ELIGIBLE FOR DED UCTION U/S 80IA(4) OF THE ACT. THE SECOND REASON ACCORDING TO LD. P CIT AS TO WHY THE ORDER OF AO WAS ERRONEOUS AND PREJUDICIAL WAS B ECAUSE ASSESSEE HAD CLAIMED DEPRECIATION @ 25% ON THE PROJECT COST ON WDV BASIS WHEREAS AS PER CBDT CIRCULAR NO.9/2014 DATED 23.04.2014, THE ENTIRE COST OF CONSTRUCTION AND DEVELOP MENT SHOULD BE AMORTIZED EVENLY OVER A PERIOD OF CONCESSION AGREEME NT AND ALLOWED AS BUSINESS EXPENSE U/S 37(1) OF THE ACT. ACCORDING TO LD.PCIT, AO HAD NOT FOLLOWED THE MANDATE OF CBDT CIRCULAR AND 3 ALLOWED THE CLAIM OF DEPRECIATION OF THE ASSESSEE. HE WAS T HEREFORE OF THE VIEW THAT THE AFORESAID TWO ISSUES HAS NOT BEEN VERIFIED/EXAMINED BY THE AO DURING ASSESSMENT PROCEEDINGS AND THEREFORE, ACCORDING TO HIM, THE ORDER PASSED BY THE AO U/S 143(3) OF THE ACT DATED 01.07.2014 WAS ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF THE REVENUE. HE ACCORDINGLY ISSUED NOTICE AND CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE ORDER U/S 263 OF T HE ACT NOT BE PASSED. IN RESPONSE TO THE SHOW CAUSE NO TICE, ASSESSEE INTER-ALIA OBJECTED TO THE INITIATION OF PROCEEDINGS U/S 263 AND ON THE ISSUE OF ASSESSEE NOT BEING A CONSORTIUM SUBMITTED T HAT ASSESSEE IS A PARTNERSHIP FIRM IN WHICH 3 COMPANIES WHICH ARE REGISTERED AS COMPANIES UNDER THE COMPANIES ACT 1956, A RE PARTNERS WITH STIPULATED PROFIT SHARING RATIO AND THE PAR TNERSHIP IS ALSO A CONSORTIUM AND THEREFORE AO HAD RIGHTLY ALLOWED CLA IM OF DEDUCTION. ON THE ISSUE OF CLAIM OF DEPRECIATION ON THE PRO JECT COST, IT WAS INTER-ALIA SUBMITTED THAT AS PER THE CONCESS ION AGREEMENTS THAT THE ASSESSEE HAS ENTERED INTO WITH ST ATE GOVERNMENT, ASSESSEE HAS BEEN GIVEN RIGHT OF COLLECTING TO LL FOR DEFINED CONCESSION PERIOD AND RETAINING IT TOWARDS THE COS T OF CONSTRUCTION AND MAINTENANCE OF INFRASTRUCTURE. IT WAS SU BMITTED THAT PERMISSION TO COLLECT TOLL WAS A LICENCE AND INTANGIBLE ASSET AND THEREFORE THE ASSESSEE HAD RIGHTLY CLAIMED THE DEP RECATION AND FOR WHICH RELIANCE WAS ALSO PLACED ON THE PUNE ITAT DECISIO N IN THE CASE OF ASHOKA INFRASTRUCTURE PVT. LTD (ITA NO. 898/PUN /2010). THE SUBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCEPTA BLE TO THE LD PCIT. HE WAS OF THE VIEW THAT THERE WAS NON- APPLICAT ION OF MIND BY THE AO WITH RESPECT TO THE DETAILS FILED BY THE ASSES SEE, THERE WAS NO INQUIRY BY THE AO AND THAT THERE WAS NO EVIDENC E TO SHOW 4 THAT THE RETURN OF INCOME WAS OBJECTIVELY EXAMINED BY T HE AO. HE WAS THEREFORE OF THE VIEW THAT THE ORDER PASSED BY THE AO WAS UNSUSTAINABLE IN THE EYES OF LAW. HE ACCORDINGLY SET ASID E THE ORDER OF AO PASSED U/S 143(3) OF THE ACT AND DIRECTED THE AO T O FRAME FRESH ASSESSMENT AND VERIFY THE CLAIM OF DEDUCTION U/S 80 IA AND CLAIM OF DEPRECIATION U/S 32 OF THE ACT AS PER THE DIRECT IONS AND OBSERVATIONS IN THE ORDER. AGGRIEVED BY THE ORDER OF LD . PCIT, ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FO LLOWING GROUNDS : 1] THE LEARNED CIT ERRED IN HOLDING THAT THE AS ST . ORDER U/S 143(3) PASSED BY THE A.O. IS ERRONEOUS AND PREJUDIC IAL TO THE REVENUE ON THE FOLLOWING ISSUES - A. THE DEDUCTION U/S 80IA(4) IS ALLOWED WRONGLY AS THE A.O . HAS NOT EXAMINED THE POINT AS TO WHETHER THE ASSESSEE F IRM IS ELIGIBLE FOR THE ABOVE DEDUCTION. B. THE A .O . HAS NOT EXAMINED THE ISSUE IN THE LIGHT OF THE BOA RD CIRCULAR AS TO WHETHER THE ASSESSEE IS ENTITLED TO DEPRECIATION @ 25% ON THE EXPENDITURE ON CONSTRUCTION OF THE ROADS / HIGHWAYS. 2] THE LEARNED CIT WAS NOT JUSTIFIED IN HOLDING T HAT THE ASST . ORDER IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE F OR THE FOLLOWING REASONS - A. THE ASSESSEE FIRM HAS ONLY COMPANIES AS PARTNERS AN D THEREFORE , IT CONSTITUTES A CONSORTIUM OF COMPANIES WHICH IS ELIGIBLE FOR DEDUCTION U/S 80IA(4). B. NO REASON IS GIVEN IN THE ORDER AS TO WHY, THE PART NERSHIP FIRM OF ONLY THE COMPANIES AS PARTNERS DOES NOT CONSTITU TE A CONSORTIUM OF COMPANIES. C. THE ASSESSEE FIRM WAS ALLOWED THE DEDUCTION U/S 80IA(4) EVEN IN THE PAST YEARS. D. DEPRECIATION @ 25% WAS RIGHTLY CLAIMED ON THE ASSET ' RIGHT TO COLLECT TOLL ' WHICH WAS OWNED BY THE ASSESSEE AS IT HAS CONSTRUCTED THE HIGHWAYS / ROADS. E. IN VIEW OF VARIOUS DECISIONS OF ITAT , THE ABOVE CLAIM OF DEPRECIATION WAS CLEARLY ALLOWABLE TO THE ASSESSEE AND HENCE , THERE WAS NO ERROR IN THE ORDER . F. IN THE PAST ASST . YEARS ALSO, THE ASSESSEE WAS ALLOWED DEPRECIATION ON THE ABOVE ASSET . G. WITHOUT PREJUDICE, IN VIEW OF THE ABOVE GROUNDS, TH E ASST . 5 COULD NOT BE CONSIDERED AS ERRONEOUS AS THE ASSESSE E'S CLAIM WAS FULLY SUPPORTED BY PROPER REASONING . 3] THE LEARNED CIT WAS NOT JUSTIFIED IN SETTING A SIDE THE ASST. SIMPLY ON THE GROUND THAT THE AO DID NOT MAKE THE E NQUIRIES ON THE ABOVE CLAIM OF DEDUCTION U/S 80IA(4) WITHOUT REBUTTING THE ASSESSEES CONTENTIONS. 4] THE ORDER U/S 263 BE HELD TO BE NOT JUSTIFIED AS THE ASST . ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE R EVENUE. 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THOUGH THE ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE SOLE CONTR OVERSY IS WITH RESPECT TO INVOCATION OF POWERS BY LD. PCIT U/S 263 OF THE ACT. 4. BEFORE US, THE LD. A.R. SUBMITTED THAT IN THE PRESENT CAS E THE PRE-REQUISITE CONDITIONS SPECIFIED U/S 263 OF THE ACT WERE NOT SATISFIED AND THEREFORE THE PROCEEDINGS INITIATED U/S 263 O F THE ACT LACKS JURISDICTION AND ARE BAD IN LAW. HE SUBMITTED THAT U /S 263 OF THE ACT, THE LD. PCIT CAN REVISE AN ORDER PASSED BY THE AO ONLY ON THE SATISFACTION OF TWIN CONDITIONS NAMELY (I) THE ORDER IS ER RONEOUS AND (II) IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. IF ONE OF THEM IS ABSENT I.E. IF EITHER THE ORDER OF THE REVENUE IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE OR IF IT IS NOT E RRONEOUS BUT IS PREJUDICIAL TO THE INTEREST OF REVENUE RECOURSE CANNOT BE HAD TO SEC.263(1). HE FURTHER SUBMITTED THAT THE ERROR E NVISAGED BY SEC.263 IS NOT ONE WHICH DEPENDS ON POSSIBILITY OR GUESSW ORK BUT IT SHOULD BE AN ACTUAL ERROR EITHER OF FACTS OR OF LAW. HE FUR THER SUBMITTED THAT WHEN TWO VIEWS ARE POSSIBLE AND THE AO H AS TAKEN ONE VIEW WITH WHICH THE LD. PCIT DOES NOT AGREE, THE OR DER OF THE AO CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIA L TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE A O IS UNSUSTAINABLE IN LAW AND FOR THE AFORESAID PROPOSITION, HE RE LIED ON 6 THE DECISION IN THE CASE OF MALABAR INDUSTRIAL CO., LTD., VS. C IT (2000) 243 ITR 83 (SC). THE LD AR FURTHER PLACING RELIANCE O N THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF CIT VS. GABR IEL INDIA LTD (1993) 203 ITR 108 (BOM) SUBMITTED THAT HONBLE BOMBA Y HIGH COURT HAS HELD THAT AN ORDER CANNOT BE TERMED AS E RRONEOUS UNLESS IT IS NOT IN ACCORDANCE WITH LAW. THE SECTION DOES NOT VISUALISE A CASE OF SUBSTITUTION OF JUDGMENT OF THE COMMISSI ONER FOR THAT OF THE ITO, WHO PASSED THE ORDER, UNLESS THE DECISIO N IS HELD TO BE ERRONEOUS. HE FURTHER SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT WHEN THE ITO HAS EXERCISED THE QUASI-JU DICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CON CLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOU S SIMPLY BECAUSE THE COMMISSIONER DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID IN SUCH A CASE THAT IN THE OPIN ION OF THE COMMISSIONER THE ORDER IN QUESTION IS PREJUDICIAL TO THE INT EREST OF THE REVENUE. BUT THAT BY ITSELF WILL NOT BE ENOUGH TO VEST THE COMMISSIONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, NAMELY, THE ORDER IS ERRONEOUS, IS ABSENT. SIM ILARLY, IF AN ORDER IS ERRONEOUS BUT NOT PREJUDICIAL TO THE INTERES T OF THE REVENUE, THEN ALSO THE POWER OF SUO MOTU REVISION CANNOT BE EXERCISED. ANY AND EVERY ERRONEOUS ORDER CANNOT BE SU BJECT-MATTER OF REVISION BECAUSE THE SECOND REQUIREMENT ALSO MUST BE FULFILLED. 5. WITH RESPECT TO THE ISSUE OF GRANTING OF DEDUCTION U/S 80IA(4) OF THE ACT, HE SUBMITTED THAT ASSESSEE IS A PARTNERSHIP FIRM REGISTERED ON 11.04.2001 WITH 3 COMPANIES AS PARTNERS N AMELY ROHAN BUILDERS (INDIA) PVT. LTD, RAJDEEP BUILDCON PVT. LTD A ND RAJDEEP ROAD DEVELOPERS PVT. LTD. THE PROFIT SHARING R ATIO OF THE 7 3 COMPANIES ARE IN THE RATIO OF 50:40:10 RESPECTIVELY WHICH IS ALSO STATED IN THE TAX AUDIT REPORT, A COPY OF WHICH IS PLACED AT PAGE 41 OF THE PAPER BOOK. HE SUBMITTED THAT THERE IS NO CHANGE IN THE CONSTITUTION OF THE PARTNERSHIP SINCE INCEPTION AND THE SA ME PARTNERS WHO HAD ENTERED INTO PARTNERSHIP ON THE FORMA TION OF THE FIRM ARE CONTINUING AS PARTNERS OF THE FIRM TILL DATE. HE FURTH ER SUBMITTED THAT THE CLAIM OF DEDUCTION U/S 80IA(4) HAS BEE N ALLOWED TO THE ASSESSEE IN AY 2004-05 AND AY 2005-06 BUT IN T HESE TWO YEARS, THE ASSESSMENT WAS FRAMED U/S 143(1) OF THE ACT. F OR AY 2008-09 AND 2009-10, HE SUBMITTED THAT THE ASSESSMENT S WERE FRAMED U/S 143(3) AND THE CLAIM OF DEDUCTION WAS ALLOWED BY THE AO. HE SUBMITTED THAT THE CLAIM FOR DEDUCTION U/S 80IA(4) WAS DENIED TO ASSESSEE IN AY 2006-07 AND AY 2010-11 BUT THE DENIAL OF DEDUCTION WAS NOT FOR THE REASON THAT THE ASSESSEE W AS A FIRM BUT WAS DENIED FOR A DIFFERENT REASON NAMELY THAT THE PROFITS EARNED BY THE ASSESSEE FROM THE WORK OF WIDENING OF ROADS UNDERTAK EN BY THE ASSESSEE CANNOT BE CONSIDERED TO BE A NEW INFRASTRUCTU RAL FACILITY FOR BEING ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE ACT AND TH EREFORE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION ON SUCH PROFITS EA RNED FROM SUCH WORK U/S 801A(4) OF THE ACT. HE SUBMITTED THAT AGAIN ST THE ORDER OF AO AND WHICH WAS CONFIRMED BY LD CIT(A), ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE HONBLE ITAT. THE HONBLE IT AT VIDE ORDER DATED 05.04.2013 (ITA NO 1214/PUN/2010 FOR AY 20 06-07) AND VIDE ORDER DATED 10.03.2017 (ITA NO 1920/PUN/201 4 FOR AY 2010-11) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HE PLACED ON RECORD THE COPY OF THE ORDER IN THE PAPER BOOK AND POINTED TO THE RELEVANT FINDINGS OF LD ITAT. HE THEREFORE SUBMITTED THA T THE ASSESSEE HAS BEEN ALLOWED THE CLAIM OF DEDUCTION U/S 80IA (4) FROM 8 A.Y. 2004-05 ONWARDS. AS FAR AS THE ISSUE FOR THE YEAR UNDER CONSIDERATION IS CONSIDERED, HE SUBMITTED THAT THE ASSESS EE BEING PARTNERSHIP FIRM HAVING THE 3 COMPANIES AS PARTNERS WERE DISCLOSED BY THE ASSESSEE IN THE AUDITED BALANCE SHEET, TAX AUDIT REPORT AND THE COPIES OF WHICH WERE ALSO FILED BEFORE THE AO DURING TH E ASSESSMENT PROCEEDINGS AND ALSO IN THE SUBMISSIONS THAT WERE MADE BEFORE THE AO. HE SUBMITTED THAT THE CLAIM OF DEDUC TION U/S 80IA(4) HAS BEEN ALLOWED TO THE ASSESSEE IN THE PAST AN D SINCE THERE WAS NO CHANGE IN THE FACTS, THE NORMAL INQUIRY AS REQUIRED WAS MADE BY THE AO DURING THE COURSE OF ASSESSMENT PROCE EDINGS. HE FURTHER SUBMITTED THAT ONCE THE CLAIM OF THE DEDUCTION U /S 80IA(4) HAS BEEN ALLOWED TO THE ASSESSEE IN THE PAST AND WHEN THERE ARE NO CHANGE IN THE FACTS, THEN THE BENEFIT OF DEDUCTION CANNO T BE DENIED IN SUBSEQUENT YEARS. HE FURTHER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE FOR DEDUCTION WAS ALLOWED BY THE AO AFTER BEING SATISFIED OF THE CLAIM BY T HE ASSESSEE. HE THEREFORE SUBMITTED THAT SINCE ON THE ISSUE OF DEDUCTION U/S 80IA(4), THERE WAS PROPER APPLICATION OF MIN D BY THE AO, NO PROCEEDINGS U/S 263 OF THE ACT COULD BE MADE BY LD. PCIT. 6. ON THE ISSUE OF THE OBSERVATION OF THE LD PCIT THAT ASSESSEE WAS NOT A CONSORTIUM, HE SUBMITTED THAT AS PER THE PRO VISIONS OF SEC. 80IA(4)(I)(A) OF THE ACT, FOR BEING ELIGIBLE FOR DEDUCTION U/S 80IA(4), AN ENTERPRISE SHOULD BE AN INDIAN COMPANY, CONSORTIUM OF COMPANIES, BOARD OR CORPORATION INCORPORATED UND ER CENTRAL OR STATE ACT OR A BODY ESTABLISHED OR CONSTITU TED UNDER THE CENTRAL OR STATE ACT. HE SUBMITTED THAT THE WORD CONS ORTIUM USED IN THE SEC.80IA HAS NOT BEEN DEFINED IN THE INCOME TAX ACT. HE 9 SUBMITTED THAT A CONSORTIUM IS A LATIN WORD MEANING PARTNERSHIP , ASSOCIATION OR SOCIETY. HE SUBMITTED THAT A CONSORT IUM IS AN ASSOCIATION OF TWO OR MORE INDIVIDUALS, COMPANIES, ORGANIZATION S OR GOVERNMENTS (OR ANY COMBINATION OF THESE ENTITIES) WITH T HE OBJECTIVE OR PARTICIPATING IN A COMMON ACTIVITY OR POOLING T HEIR RESOURCES FOR ACHIEVING A COMMON GOAL. IN SUPPORT OF HIS CONTENTION THAT THE PARTNERSHIP IS AKIN TO A CONSORTIUM, HE PLACED RELIANCE ON THE DECISION DATED 28.04.2011 RENDERED BY HO NBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ORG INFORMATICS LTD VS. M.P.STATE ELECTRONICS DEV. CORP. (WP 9183/2008). HE ALSO PLA CED ON RECORD A COPY OF THE AFORESAID DECISION. HE SUBMITTED THAT IN THE PRESENT CASE, THE PARTNERSHIP FIRM IS AKIN TO A CONSORTIUM OF COMPANIES MORE SO BECAUSE THE 3 PARTNERS OF THE FIRMS A RE COMPANIES REGISTERED UNDER THE COMPANIES ACT 1956 AND THERE IS NO OTHER INDIVIDUAL OR A NON-CORPORATE ENTITY AS PARTNER OF THE FIRM. 7. ON THE ISSUE OF CLAIMING OF DEPRECIATION AT 25% ON THE T OLL RIGHTS, BEING INTANGIBLES, HE SUBMITTED THAT IN VIEW OF THE CONCESSION AGREEMENT ENTERED BY THE ASSESSEE WITH THE STATE GOVERNMENT, ASSESSEE HAS BEEN GRANTED RIGHT TO COLLECT TOLL. THE RIGHT TO COLLECT TOLL IS A FORM OF INTANGIBLE ASSET AND IS THE REFORE ELIGIBLE FOR DEPRECIATION. HE SUBMITTED THAT ASSESSEE CONS IDERED THE TOLL RIGHTS AS INTANGIBLES AND CLAIMED DEPRECIATION ON IT. HE SUBMITTED THAT ON IDENTICAL FACTS IN THE CASE OF ASHOKA INFRASTRUCTURE LTD, THE PUNE BENCH OF ITAT VIDE ORDER DATED 18.07.2013 (FOR AY 2007-08) HAS ALLOWED THE CLAIM OF DEPRECIA TION ON SUCH TOLL RIGHTS. HE PLACED THE COPY OF THE AFORESAID DE CISION AT PAGE 110 TO 158 OF THE PAPER BOOK AND POINTED TO THE RELEVANT FINDINGS OF HONBLE ITAT. HE ALSO RELIED ON THE DECISION RENDE RED BY 10 PUNE TRIBUNAL IN THE CASE OF JAIN IRRIGATION SYSTEMS LTD (I TA NO.1186/PUN/2010 ORDER DT.09.06.2017) AND FINOLEX CABLES LT D (ITA NO.360/PUN/2014 ORDER DT.31.08.2015). 8. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER O F LD. PCIT. HE SUBMITTED THAT WHEN AO HAS ALLOWED THE CLAIM O F DEDUCTION U/S 80IA(4) OF THE ACT WITHOUT ANY DISCUSSION, T HE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REV ENUE. HE FURTHER SUBMITTED THAT IN THE PRESENT CASE THERE WAS N O APPLICATION OF MIND BY THE AO AND THEREFORE THE LD PCIT HAS RIGHTLY INVOKED PROVISIONS OF SEC.263 OF THE ACT. HE SUBMITTED THAT DEDU CTION U/S 80IA(4), IS AVAILABLE ONLY TO A COMPANY OR A CONSORTIUM O F COMPANIES AND SINCE THE ASSESSEE IS A PARTNERSHIP FIRM, TH E ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION AND THE AO WITHOUT EXAMINATION OF THE NECESSARY FACTS, HAD ALLOWED THE DEDUCT ION AND THEREFORE LD PCIT HAS RIGHTLY HELD THE ORDER OF THE AO TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE . IN SUPPORT OF THE CONTENTION THAT ASSESSEE BEING A FIRM, IS NOT ELIGIBLE FOR DEDUCTION U/S 80IA(4), HE RELIED ON THE DECISION OF CHENNAI TRIBUNAL IN THE CASE OF B. DHANASEKARAN (ITA NO 620/MAD/ 2013 ORDER DATED 06.11.2015), HYDERABAD TRIBUNAL IN THE CASE O F NCC- ECCI(JV) (ITA NOS.124 & 125/HYD/2009 ORDER DATED 17 .06.2013) AND HYDERABAD TRIBUNAL IN THE CASE OF RAMKY INFRASTRUCT URE LTD (ITA NO.472/HYD/09 ORDER DATED 17.07.2013). HE ALSO RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. N ALWA INVESTMENTS LTD REPORTED IN (2011) 11 TAXMANN.COM 98. O N THE ISSUE OF CLAIM OF DEPRECIATION, HE SUBMITTED THAT CBDT CIRCULA R NO.9/2014 DT.23.04.2014, HAS HELD THAT THE ENTIRE COST OF CONSTRUCTION AND DEVELOPMENT HAS TO BE AMORTIZED EVENL Y OVER A 11 PERIOD OF CONCESSION AGREEMENT AND ALLOWED AS BUSINESS EX PENSES U/S 37(1). HE SUBMITTED THAT SINCE AO HAD FAILED TO EXAMINE THE ISSUE IN THE LIGHT OF THE AFORESAID CIRCULAR, THE LD. PCIT HAS RIGHTLY HELD THAT THE ORDER PASSED BY AO U/S 263 TO BE ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE THUS SUPPORTE D THE ORDER OF LD PCIT. 9. LD AR IN THE REJOINDER SUBMITTED THAT IN THE CASE OF N CC ECCI (SUPRA) THE ISSUE WAS WHETHER THE ASSESSEE WAS A DEVELOPER OF AN INFRASTRUCTURE FACILITY AND THE ISSUE WAS NOT AS TO WHE THER THE DEDUCTION U/S 80IA(4) IS AVAILABLE TO BE PARTNERSHIP FIRM. SI MILARLY, IN THE CASE OF RAMKY INFRASTRUCTURE (SUPRA) THE ISSUE INVO LVED WAS DIFFERENT NAMELY, WHETHER THE ASSESSEE WAS A DEVELOPER OR CONTRACTOR. HE THEREFORE SUBMITTED THAT THE RELIANCE PLA CED BY THE REVENUE ON THE DECISIONS WITH RESPECT TO SEC.80IA(4) OF T HE ACT, ARE DISTINGUISHABLE ON FACTS AND ARE, THEREFORE NOT APPLICABLE TO THE PRESENT FACTS. HE THEREFORE REITERATED THAT IN THE PRE SENT CASE THE LD PCIT HAD ERRED IN INVOKING THE REVISIONARY PROCEEDINGS U/S 263 OF THE ACT AND THEREFORE THE ORDER OF LD PCIT BE SET ASIDE. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOU T THE INVOKING OF PROVISIONS OF SECTION 263 BY LD PCIT. SEC. 263(1 ) OF THE ACT, THE POWERS UNDER WHICH LD PCIT HAS ASSUMED POWER FOR REVISION READS AS UNDER: THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT A NY ORDER PASSED THEREIN BY THE ITO IS ERRONEOUS IN SO FAR AS IT IS 12 PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFT ER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANC ES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECT ING A FRESH ASSESSMENT. 11. THE READING OF THE ABOVE PROVISION MAKES IT VERY CLEAR THAT THE POWER OF SUO MOTU REVISION U/S 263(1) IS IN THE NATURE OF SUPERVISORY JURISDICTION AND THE SAME CAN BE EXERCISED O NLY IF THE CIRCUMSTANCES SPECIFIED THEREIN EXIST. TWO CIRCUMSTANCES MU ST EXIST TO ENABLE THE COMMISSIONER TO EXERCISE POWER OF REV ISION U/S 263, NAMELY (I) THE ORDER IS ERRONEOUS (II) BY VIRTUE OF BEING ERRONEOUS, PREJUDICE HAS BEEN CAUSED TO THE INTERESTS OF THE REVENUE. 12. HONBLE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL CO., LTD., VS CIT REPORTED IN (2000) 243 ITR 83 (SC) HAS HELD T HAT 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 PREJUDICIAL T O THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENTIF THE ORDER OF THE ITO IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVE NUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUERECOURS E CANNOT BE HAD TO SEC.263(1). IT WAS FURTHER HELD THAT THE PROV ISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE O R ERROR COMMITTED BY THE AO; WHEN AN ITO ADOPTED ONE OF THE CO URSES PERMISSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE 13 TWO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW W ITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ER RONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIE W TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW. 13. IN THE CASE OF CIT VS. GABRIEL INDIA LTD REPORTED IN (1993) 203 ITR 108 (BOM), THE HONBLE BOMBAY HIGH COURT HAS HE LD AS UNDER: AN ORDER CANNOT BE TERMED AS ERRONEOUS UNLESS IT IS N OT IN ACCORDANCE WITH LAW. IF AN ITO ACTING IN ACCORDANCE WITH LAW MAKES CERTAIN ASSESSMENT, THE SAME CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE ACCORDING TO HIM THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY . THIS SECTION DOES NOT VISUALISE A CASE OF SUBSTITUTION OF JUDGMENT OF THE COMMISSIONER FOR THAT OF THE ITO, WHO PASSED THE ORDER, UNLESS THE DECISION IS HELD TO BE ERRON EOUS. CASES MAY BE VISUALISED WHERE ITO WHILE MAKING AN ASSESSMENT EXAMINES THE ACCOUNTS, 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 ESTIMATES HIMSELF. THE COMMISSIONER, ON PERUSAL OF THE RECORDS, MAY BE OF THE OPINION THAT THE ESTIMATE MADE BY THE OFFICER CONCERNED WAS ON THE LOWER SIDE AND, LEFT TO THE COMMISSIONER, HE WOULD HAVE ESTIMATED THE INCOME AT A HIGHER FIGURE THAN THE ONE DETERMINED BY THE ITO. THAT WOULD NOT VEST THE COMMISSIONER WITH POWER TO RE- EXAMINE THE ACCOUNTS AND DETERMINE THE INCOME HIMSELF AT A HIGHER FIGURE. IT IS BECAUSE THE ITO HAS EXERCISED THE QU ASI- 14 JUDICIAL POWER VESTED IN HIM IN ACCORDANCE WITH LAW AND ARRIVED AT A CONCLUSION AND SUCH A CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIONER DOES NOT FEEL SATISFIED WITH THE CONCLUSION. IT MAY BE SAID I N SUCH A CASE THAT IN THE OPINION OF THE COMMISSIONER THE ORDER IN QUESTION IS PREJUDICIAL TO THE INTEREST OF THE REV ENUE. BUT THAT BY ITSELF WILL NOT BE ENOUGH TO VEST THE COMMISS IONER WITH THE POWER OF SUO MOTU REVISION BECAUSE THE FIRST REQUIREMENT, NAMELY, THE ORDER IS ERRONEOUS, IS ABSENT. SIMILARLY IF AN ORDER IS ERRONEOUS BUT NOT PREJUDICIAL TO TH E INTEREST OF THE REVENUE, THEN ALSO THE POWER OF SUO MOTU REVISION CANNOT BE EXERCISED. ANY AND EVERY ERRONEOUS O RDER CANNOT BE SUBJECT-MATTER OF REVISION BECAUSE THE SECON D REQUIREMENT ALSO MUST BE FULFILLED. 14. IN THE PRESENT CASE, THE LD PCIT INVOKED PROVISIONS OF SEC.263 AND HELD THAT THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE FOR TWO REASONS FIRSTLY THAT SINCE THE ASSESSEE IS A PARTNERSHIP FIRM, CANNOT BE CONSIDERED TO BE A CONSORTIUM SO AS TO BE ELIGIBLE FOR CLAIMING DEDUCTION U/S 80IA(4) OF THE ACT. ACC ORDING TO LD. PCIT, AO HAS IGNORED THE AFORESAID FACT AND HAD ALLOWED THE DEDUCTION AND SECONDLY FOR THE REASON THAT ASSESSEE H AD CLAIMED DEPRECIATION @ 25% ON THE PROJECT COST ON WDV BASIS AN D THE CLAIM OF DEPRECIATION WAS ALLOWED BY THE AO WHEREAS AS PER CBD T CIRCULAR NO.9/2014, THE ENTIRE COST OF CONSTRUCTION AND DEVELOPMENT HAD TO BE AMORTISED EVENLY OVER THE PERIOD OF CONCESSION. 15 15. ON THE ISSUE OF DEPRECIATION @ 25% CLAIMED BY ASSESSE E AND ALLOWED BY AO, IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD ENTERED INTO DIFFERENT CONCESSION AGREEMENTS WITH PUBLIC WORKS DEPA RTMENT OF MAHARASHTRA FOR CONSTRUCTION OF CERTAIN ROADS AND ITS OPERATION AND MAINTENANCE FOR AN AGREED PERIOD ON BUILD OPERATE A ND TRANSFER (BOT) BASIS. BY VIRTUE OF THE CONCESSION AGREEMENT , ASSESSEE WAS GRANTED RIGHT TO COLLECT AND RETAIN TOLL FOR THE DEFINED CONCESSION PERIOD. THE RIGHT TO COLLECT TOLL WAS CONSIDERED BY ASSESSEE TO BE A FORM OF LICENCE AND THUS AN INTANGIBLE RIG HT AS PER PROVISIONS OF SEC.32(1)(II) OF THE ACT AND THEREFORE BEING ELIG IBLE FOR DEPRECIATION AT 25%. WE FIND THAT ON IDENTICAL FACTS NAMELY THE ISSUE OF DEPRECIATION ON INTANGIBLE RIGHTS, WAS BEFORE THE CO - ORDINATE BENCH OF PUNE TRIBUNAL IN THE CASE OF ASHOKA INFRASTRUCTURE PVT. LTD (SUPRA). THE CO-ORDINATE BENCH O F THE TRIBUNAL, AFTER CONSIDERING THE DECISION RENDERED BY MUMBAI TRIBUNAL IN THE CASE OF ACIT VS. WEST GUJARAT EXPRESSWAY LTD., REPORTED IN (2015) 57 TAXMANN.COM 384, WHICH IN TURN HAD R ELIED UPON THE RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF NORTH KARNATAKA EXPRESSWAY LTD., VS CIT REPORTED IN (2015) 372 ITR 145 (BOM) AND AFTER CONSIDERING THE CBDT CIRCULAR NO.9 /2014 DATED 23.04.2014 (WHICH HAS ALSO BEEN RELIED UPON BY LD PCIT IN THE PRESENT CASE) HAS HELD THAT THE RIGHT TO COLLECT TOLL IS CAPITAL EXPENDITURE AND CONSEQUENTLY THE ASSESSEE IS ENTITLED T O CLAIM DEPRECIATION ON SUCH INTANGIBLE ASSETS AS PROVIDED U/S 32 (1)(II) OF THE ACT. BEFORE US NO MATERIAL HAS BEEN PLACED BY THE R EVENUE TO DEMONSTRATE THAT THE AFORESAID DECISION OF PUNE TRIBUNAL IN THE CASE OF ASHOKA INFRASTRUCTURE (SUPRA) HAS BEEN SET ASIDE / OVERTURNED BY HIGHER JUDICIAL FORUM. FURTHER, IN VIEW OF THE 16 AFORESAID FACTS, WE ARE OF THE VIEW THAT THE VIEW /OPINION O F THE AO OF HOLDING THE RIGHT TO COLLECT TOLL AS AN INTANGIBLE ASSET, A ND THEREFORE ELIGIBLE FOR DEPRECIATION AND ALLOWING THE CLAIM OF DEPRECIATION TO THE ASSESSEE WAS A POSSIBLE VIEW. IT IS A SETTLED LAW THAT SO LONG AS THE VIEW TAKEN BY THE ASSESSING OFFICER IS A POSSIBLE VIEW THEN THE SAME OUGHT NOT TO BE INTERFERED WITH BY T HE COMMISSIONER UNDER SECTION 263 OF THE ACT MERELY ON THE GROUND THAT THERE IS ANOTHER POSSIBLE VIEW ON THE MATTER. AS FAR AS THE CONTENTION OF THE REVENUE THAT ON THE ISSUE OF DEPRECIAT ION, THERE WAS NO WHISPER OF HAVING BEING EXAMINED BY THE AO IN THE ASSESSMENT PROCEEDINGS, IT HAS BEEN HELD BY VARIOUS AUT HORITIES THAT THE MERE FACT THAT THE ISSUE DID NOT FALL FOR DISCUSSIO N IN THE ASSESSMENT ORDER WOULD NOT IPSO FACTO LEAD TO THE CONC LUSION THAT THE ASSESSING OFFICER DID NOT APPLY HIS MIND TO THE ISSUE. 16. ON THE ISSUE OF ASSESSEE NOT BEING ELIGIBLE FOR DEDUCTION U/S 80IA(4) AS IT BEING A PARTNERSHIP FIRM IS CONCERNED, IT IS AN UNDISPUTED FACT THAT THE ASSESSEE IS A PARTNERSHIP FIRM CONSISTING OF 3 COMPANIES NAMELY ROHAN BUILDERS (INDIA) PVT. LTD, RAJDEEP BUILDCON PVT., LTD AND RAJDEEP ROAD DEVELOPERS PVT., LTD WITH A PROFIT SHARING RATIO OF 50:40:10 RESPECTIVELY. IT IS ALSO A FA CT THAT IN THE CASE OF ASSESSEE APART FROM THE AFORESAID 3 PARTNER S, THERE ARE NO OTHER NON-CORPORATE ENTITIES, WHO ARE PARTNERS. IT IS ALSO A FACT THAT THE PARTNERSHIP FIRM CAME INTO EXISTENCE ON 11.04.2 001 AND THE SAME PARTNERS CONTINUED IN THE YEAR UNDER CONSIDE RATION WITHOUT ANY CHANGE IN THE CONSTITUTION. IT IS A FACT THAT ACCORDING TO PROVISIONS OF SEC.80IA(4)(I)(A), THE SECTION APPLIES TO AN ENTE RPRISE WHICH IS A COMPANY REGISTERED IN INDIA OR A CONSORTIUM O F COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORAT ION OR ANY 17 OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRA L OR STATE ACT. IT IS ALSO A FACT THAT THE WORD CONSORTIUM USED IN THE PROVISION HAS NOT BEEN DEFINED IN THE INCOME TAX ACT. AS PER THE MERRIAM WEBSTER DICTIONARY, THE WORD CONSORTIUM MEANS AN AGREEMENT, COMBINATION, OR GROUP (AS OF COMPANIES) FORMED TO UNDERTAKE AN ENTERPRISE BEYOND THE RESOURCES OF ANY O NE MEMBER. AS PER THE COLLINS ENGLISH DICTIONARY, A CONSORTIUM IS A GRO UP OF PEOPLE OR FIRMS WHO HAVE AGREED TO CO-OPERATE WITH EACH OT HER. WE FIND THAT THE HONBLE MADHYA PRADESH HIGH COURT IN THE C ASE OF ORG INFORMATICS (SUPRA) HAS OBSERVED THAT A CONSORTIUM IS AK IN TO A PARTNERSHIP WHERE EACH PARTNER IS LIABLE FOR ACTION OF OTHE R PARTNERS. IN THE PRESENT CASE IT IS NOT THE CASE OF T HE REVENUE THAT IN THE PARTNERSHIP FIRM, THERE ARE OTHER NON CORPORATES, WHO ARE PARTNERS OR THE FIRM IS NOT FOR THE PURPOSE OF BUSINESS. IT IS SEEN THAT THE ASSESSEE HAS BEEN GRANTED THE BENEFIT OF DEDU CTION U/S 80IA(4) IN EARLIER YEARS AND IN 2 ASSESSMENT YEARS I.E., A.Y. 2006-07 AND A.Y. 2010-11, THE BENEFIT OF SEC.80IA(4) WAS DENIED TO THE ASSESSEE BY THE AO FOR A DIFFERENT REASON AND NOT FOR T HE REASON THAT THE ASSESSEE WAS A FIRM AND NOT A CONSORTIUM OF C OMPANIES. THE CLAIM OF DEDUCTION WAS SUBSEQUENTLY ALLOWED BY THE C O- ORDINATE BENCH OF TRIBUNAL VIDE ORDER DT.05.04.2013 IN ITA NO.1214/PUN/2010 FOR A.Y. 2006-07 AND VIDE ORDER DT.10.03 .2017 IN ITA NO.1920/PUN/2014 FOR A.Y. 2010-11. THUS, THE CLAIM OF DEDUCTION U/S 80IA(4) OF THE ACT HAS BEEN ALLOWED TO THE ASSESSEE IN PAST FROM A.Y. 2004-05 ONWARDS. FURTHER, REVENUE HAS NOT BROUGHT ON RECORD ANY NEW FACTS IN THE YEAR UNDER CON SIDERATION DUE TO WHICH THE CLAIM OF DEDUCTION U/S 80IA(4) COULD BE DE NIED TO THE ASSESSEE. BEFORE US, REVENUE HAS NOT BROUGHT ANY MATERIAL ON 18 RECORD TO DEMONSTRATE THAT THE VIEW TAKEN BY THE AO WAS AN IMPERMISSIBLE VIEW OR WAS CONTRARY TO LAW OR WAS UPON ER RONEOUS APPLICATION OF LEGAL PRINCIPLES NECESSITATING THE EXERCISING OF REVISIONARY POWERS U/S 263 OF THE ACT. FURTHER, THE CASE LAWS RELIED UPON BY THE REVENUE ARE DISTINGUISHABLE ON FACTS AND THE REFORE CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. CO NSIDERING THE TOTALITY OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE PRESENT CASE THE CONDITION PRECEDENT FOR ASSUMING THE JURISDICTIO N U/S 263 OF THE ACT DID NOT EXIST AND THEREFORE THE LD. PCIT WAS NOT JUSTIFIED IN RESORTING TO THE REVISIONARY POWERS U/S 263 OF THE AC T. WE THEREFORE SET ASIDE THE ORDERS OF LD. PCIT WHEREBY HE HAS SET ASIDE THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) OF THE ACT. THUS, THE GROUNDS THE OF ASSESSEE ARE ALLOWED. 17. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED ORDER PRONOUNCED ON 23 RD DAY OF FEBRUARY, 2018. SD/- SD/- ( VIKAS AWASTHY ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; DATED : 23 RD FEBRUARY, 2018. YAMINI '#$%&'&$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. PCIT-2, PUNE. '#$ %%&',) &', / DR, ITAT, A PUNE; $+,-/ GUARD FILE. / BY ORDER , T// ///TRUE TRUE COPY // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.