M/s. Suyojit Infrastructure (BOT)., Nashik V. Principal Commissioner of Income-tax : 2,

ITA 851/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2802 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-06-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP GARG
• Keywords: Reopening of assessment; Rule of consistency; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 147; 148; 6; 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO S . 850 & 851 /P U N/20 16 / ASSESSMENT YEAR S : 2010 - 11 & 2011 - 12 M/S. SUYOJIT INFRASTRUCTURE F 1/2, SUYOJIT HEIGHTS, SHARANPUR ROAD, OPP. RAJIV GANDHI BHAVAN, NASHIK 422002 . / APPELLANT PAN: ABGFS0351P VS. THE PRL. COMMISSIONER OF INCOME TAX - 2, NASHIK . / RESPONDENT ASSESSEE BY : S HRI PRAMOD SHINGTE REVENUE BY : SHRI SANDEEP GARG, CIT / DATE OF HEARING : 23 . 0 8 .201 8 / DATE OF PRONOUNCEMENT: 06 . 11 .201 8 / ORDER PER SUSHMA CHOWLA, JM: BOTH T HE APPEALS FILED BY ASSESSEE ARE AGAINST SEPARATE ORDER S OF CIT - 2 , NASHIK , BOTH DATED 16.03.2016 RELATING TO ASSESSMENT YEAR S 2010 - 11 AND 2011 - 12 PASSED UNDER SECTION 263 OF INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 . BOTH THE APPEALS FILED BY ASSESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE HOWEVER, IN ORDER TO ADJUDICATE THE ISSUES, WE MAKE REFERENCE TO THE FACTS AND ISSUES IN ITA NO.850/PUN/2016, RELATING TO ASSESSMENT YEAR 2010 - 11. 3. THE ASSESSEE IN ITA NO.850/PUN/2016, RELATING TO ASSESSMENT YEAR 2010 - 11 HAS RAISED THE FOL LOWING GROUNDS OF APPEAL: - 1. ON THE BASIS OF FACTS AND THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, T HE ORDER U/S. 263 OF THE ACT PASSED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, NASHIK BE QUASHED AS THE SAME IS BARRED BY LIMITATION AND HENCE BAD IN LAW BECAUSE THE ISSUE RAISED U/S. 263 OF THE ACT IS SUBJECT MATTER OF ASSESSMENT ORDER U/S. 143(3) OF THE ACT WHICH WAS PASSED ON 01/06/2012. 2. ON THE BASIS OF FACTS AND THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE PRINCIPAL COMMISSIONER OF INCOM E TAX - 2, NASHIK IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT IN RESPECT OF ORDER PASSED BY THE A.O. U/S. 147 OF THE ACT PARTICULARLY WHEN IS SAID ORDER PASSED BY THE A.O. IS VOID BECAUSE THE A.O. HAS NOT DISPOSED OFF THE OBJECTIO NS RAISED BY THE APPELLANT FOR ISSUE OF NOTICE U/S. 148 OF THE ACT BY WAY OF A SPEAKING ORDER. 3. ON THE BASIS OF FACTS AND THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, NASHIK IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. 4. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, NASHIK IS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT WHICH WAS PASSED U/S. 147 OF THE ACT BY HOLDING THAT THE A.O. HAS WRONGLY ALLOWED THE DEDUCTION U/S. 80IA(4) TO THE APPELLANT ON THE BASIS THAT THE APPELLANT HAS NOT ENTERED INTO ANY AGREEMENT WITH THE CENTRAL OR STATE GOVERNMENT OR ANY LOCAL AUTHORITY FOR DEVELOPING, OPERATION OR MAINTAININ G A NEW INFRASTRUCTURE FACILITY PARTICULARLY WHEN THE SAME WAS NOT THE SUBJECT MATTER OF THE REASONS RECORDED FOR ASSESSMENT U/S. 147/148 OF THE ACT. 5. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, NASHIK IS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT BY HOLDING THAT THE AO HAS WRONGLY ALLOWED THE DEDUCTION U/S. 80IA(4) TO THE APPELLANT PARTICULARLY WHEN THE SAME WAS ALLOWED BY THE AO AFTER DUE APPLICATION OF MIND. 6. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, NASHIK IS NOT JUSTIFIED IN INITIATING THE PROCEEDINGS U/S. 263 OF THE ACT AND SETTING ASIDE THE ASSESSMENT BY HOLDING THAT THE AO HAS NOT CARR IED OUT VERIFICATION IN RESPECT OF CREDIT OF BANK INTEREST TO PROFIT & LOSS ACCOUNT PARTICULARLY WHEN ALL THE BANK ACCOUNT STATEMENTS OF THE APPELLANT WERE SUBMITTED TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER APPEAL AND THE SA ME WERE DULY VERIFIED BY THE AO . 3 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE 4. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF COMMISSIONER WHILE EXERCISING JURISDICTION UNDER SECTION 263 OF THE ACT AND QUASHING THE ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. 5. BRIEFLY, IN THE FACTS OF THE CASE, ORIGINAL ASSESSMENT IN THE CASE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 01.06.2012. THE ASSESSING OFFICER WHILE PASSING THE SAID ASSESSMENT ORDER HAD VERIFIED THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. AFTER ELABORATING ON VARIOUS ASPECTS OF THE CLAIM MADE BY THE ASSESSEE, THE ASSESSING OFFICER IN PARA 6.1 AND PARA 8 OF ASSESSMENT ORDER HAD HELD AS UNDER: - 6.1 FURTHER ASSESSEE HAS SHOWN DEDUCTION UNDER CHAPTER VI - A U/S 80IA(4) AT RS.1,42,40,062/ - BEING INCOME FROM THE ELIGIBLE BUSINESS DEVELOPMENT, OPERATION & MAINTENANCE OF INFRASTRUCTURE FACILITY. 07.. 08. THE PLEA OF THE ASSESSEE IS NOT ACCEPTABLE, DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAS SOLD THE PLANT & MACHINERY FOR RS.46,50,000/ - THE WDV AS ON DATE OF SALE IS RS.42,35,535/ - SHORT TERM CAPITAL GAIN ARISE AT RS.4,14,465/ - . ASSESSEE HAS ALSO CLAIMED THE DEDUCTION UNDER CHAPTER VI - A IN RESPECT OF THE BUSINESS OF THE ASSESSEE ELIGIBLE FOR DEDUCTION THE CLAIM OF THE ASSESSEE IN RESPECT OF GAIN ON SALE OF SAID PLANT AND MACHINERY IS DISALLOWED THEREBY RESULTING SUCH PROFIT CANNOT BE CONSIDERED U/S 80IA(4) OF THE ACT AND DEDUCTION U/S 80IA(4) REDUCED TO RS.1,38,25,597/ - INSTEAD OF RS.1,42,40,062/ - . (WRONGLY NUMBERED ) 6.1 FURTHER THE PARTNERSHIP FIRM FULFILLS ALL THESE CRITERIAS PROVIDED U/S. 80IA(4)(I)(A)&(B) OF THE ACT, AND THEREFORE THE SAID PROJECT IS ELIGIBLE FOR GETTING THE BENEFITS OF THE PROVISIONS OF THE SAID SECTION . 6. THEREAFTER, THE ASSESSING OFFICER RECORDE D REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION 148(2) OF THE ACT, COPY OF WHICH IS PLACED AT PAGE 8 OF PAPER BOOK. THE ASSESSEE FILED OBJECTIONS TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND POINTED OUT THAT THE ISSUE RAISED IN RE - ASSESSMENT HAS ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICER WHILE PASSING THE ORDER UNDER SECTION 143(3) OF THE ACT AND THERE WAS NO NEW MATERIAL COMING INTO LIGHT FOR INITIATING PROCEEDINGS UNDER SECTION 147/148 OF THE ACT, COPY OF THE SAID LETTER IS PLACED AT 4 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE PAGE 10 OF PAPER BOOK. THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 31.01.2014 AND THE ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT WERE DROPPED, COPY OF THE SAME IS PLACED AT PAGE 12 OF PAPER BOO K. CONSEQUENT TO THE DROPPING OF SAID PROCEEDINGS, THE COMMISSIONER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE UNDER SECTION 263 OF THE ACT, COPY OF THE SAID SHOW CAUSE NOTICE IS PLACED AT PAGE 14 OF PAPER BOOK. THE COMMISSIONER OBSERVED THAT THE CASE WAS REOPENED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AND PROCEEDINGS WERE DROPPED BY THE ASSESSING OFFICER VIDE ORDER DATED 31.01.2014 . THE SAID ACTION OF ASSESSING OFFICER, AS PER THE COMMISSIONER WAS NOT IN ACCORDANCE WITH LAW AND WAS ERRONEOUS AND IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. THE COMMISSIONER THUS, SHOW CAUSED THE ASSESSEE TO EXPLAIN AS TO WHY SAID ORDER BE NOT MODIFIED. THE ASSESSEE PARTICIPATED IN THE PROCEEDINGS BEFORE THE COMMISSIONER AND SUBMITTED ITS SUBMISSIONS IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 263 OF THE ACT. THE COMMISSIONER WAS OF THE VIEW THAT IN THE SAID CASE, THE ASSESSMENT ORDER NEEDED TO BE SET ASIDE , TO BE MADE DE NOVO WITH FOLLOWING DIRECTIONS: - 8.. ( I ) THE A.O. IS DIRECTED TO V ERIFY THE DOCUMENTS RELATING TO THE CONTRACT INCLUDING THE ORIGINAL CONTRACT, THE TRIPARTITE AGREEMENT AND ANY OTHER DOCUMENT AND GIVE SPECIFIC FINDING WHETHER THE ASSESSEE CAN BE TREATED AS THE AWARDEE OF THE CONTRACT FOR THE INFRASTRUCTURE PROJECT AND PA SS A SPEAKING ORDER. ( II ) VERIFY THE CONTENTION OF THE ASSESSEE WITH RESPECT TO THE NATURE OF THE ACCOUNT, BANK STATEMENTS ETC. 7. THE COMMISSIONER FURTHER HELD AS UNDER: - 9. THE ASSESSEE HAS OBJECTED TO THE VALIDITY OF THE NOTICE U/S 263 STATING THAT THE A.O. HAD CONSIDERED THE ABOVE ISSUE IN DETAIL AND TAKEN A VIEW. THE A.O. IN THE INSTANT CASE HAD DROPPED PROCEEDINGS U/S. 148 AGREEING WITH THE ASSESSEE THAT THE DEDUCTION CAN BE CLAIMED BY THE SPV SIMPLY BECAUSE ONE OF THE PARTNERS OF THE SPV WAS THE AWARDEE OF THE CONTRACT. THE AO'S VIEW IS 5 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE ERRONEOUS IN AS MUCH AS THE LAW DOES NOT ALLOW DEDUCTION TO ANYONE ELSE BUT TO A PE RSON WHO HAS ENTERED INTO A CONTRACT WITH THE GOVERNMENT. THERE IS NO DOUBT THAT THE ASSESSEE IS NOT THAT PERSON. WHERE THE LAW IS CLEAR, THERE CAN BE NO TWO INTERPRETATIONS. 8. THE ASSESSEE IS AGGRIEVED BY THE EXERCISE OF JURISDICTION BY THE COMMISSI ONER UNDER SECTION 263 OF THE ACT AND HENCE, THE PRESENT APPEAL. 9. BEFORE PROCEEDING FURTHER, IT MAY BE POINTED OUT THAT IN ASSESSMENT YEAR 2010 - 11, ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT, WHEREAS IN ASSESSMENT YEAR 2011 - 12, RE TURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. HOWEVER, IN RESPONSE TO THE REASONS RECORDED FOR REOPENING THE ASSESSMENT UNDER SECTION 148(2) OF THE ACT, THE FACTS AND ISSUES WERE EXPLAINED AND PROCEEDINGS INITIATED UN DER SECTION 148 OF THE ACT WERE DROPPED BY THE ASSESSING OFFICER BY PASSING ORDER UNDER SECTION 143(3) R.W.S. 148 OF THE ACT. 10. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE CASE OF ASSESSEE FOR ASSESSMENT YEAR 2010 - 11 WA S SELECTED UNDER CASS FOR VERIFYING THE DEDUCTION CLAIMED UNDER SECTION 80IA(4) OF THE ACT. HE FURTHER POINTED OUT THAT EVEN FOR ASSESSMENT YEAR 2009 - 10, THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY FOR VERIFYING THE DEDUCTION CLAIMED UNDER SECTION 80IA (4) OF THE ACT AND ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT, WHICH HAS NOT BEEN DISTURBED. HE THEN REFERRED TO REASONS RECORDED TO VERIFY THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT, WHICH ARE PLACED AT PAGE 8 OF PAPER BOOK AND REPLY OF ASSESSEE WHICH WAS EXTENSIVELY VERIFIED AND THE ASSESSING OFFICER DROPPED PROCEEDINGS INITIATED UNDER SECTION 14 8 OF THE ACT BY PASSING ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. THE LEARNED AUTHORIZED 6 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE REPRESENTATIVE FOR THE ASSESSEE P OINTED OUT THAT AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT, DATED 01.06.2012, NOTICE UNDER SECTION 263 OF THE ACT COULD BE ISSUED BY COMMISSIONER UPTO MARCH, 2015. HOWEVER, NOTICE UNDER SECTION 263 OF THE ACT WAS ISSUED BY COMMISS IONER ON 08.01.2016, SO IT CANNOT BE AGAINST ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT BUT ISSUED AGAINST ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER PO INTED OUT THAT ASSESSMENT WAS REOPENED FOR THE SOLE REASON THAT THE ASSESSEE WAS NOT A COMPANY. HE REFERRED TO THE PROVISIONS OF SECTION 80IA(4) OF THE ACT AND POINTED OUT THAT THE SAID DEDUCTION WAS ALLOWABLE TO AN ENTERPRISE WHICH WAS OWNED BY A COMPANY . HE THEN REFERRED TO THE ORIGINAL ASSESSMENT PROCEEDINGS, WHEREIN EXPLANATION LETTER WAS FILED, WHICH IS PLACED AT PAGE 3 OF PAPER BOOK. HE FURTHER POINTED OUT THAT DURING 148 PROCEEDINGS, THIS FACT WAS POINTED OUT TO ASSESSING OFFICER AND SINCE THERE W AS NO CHANGE IN FACTS, PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT WERE DROPPED VIDE SPEAKING ORDER. HE THEN, REFERRED TO THE ORDER OF COMMISSIONER UNDER SECTION 263 OF THE ACT WITH SPECIAL REFERENCE TO PARAS 8 AND 9 AND POINTED OUT THAT THE COMMIS SIONER HAS SET ASIDE THE MATTER FOR ASSESSMENT TO BE MADE DE NOVO . HE THEN REFERRED TO ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT RELATING TO ASSESSMENT YEAR 2009 - 10, WHICH IS PLACED AT PAGE 53 OF PAPER BOOK AND POINTED OUT THAT THE SAID POSI TION HAS NOT BEEN DISTURBED. HE ALSO REFERRED TO PROCEEDINGS UNDER SECTION 148 OF THE ACT RELATING TO ASSESSMENT YEAR 2011 - 12, WHEREIN THEY WERE INITIATED FOR THE SAME REASON AND AFTER CONSIDERING THE REPLY OF ASSESSEE, PROCEEDINGS UNDER SECTION 148 OF TH E ACT WERE DROPPED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE SAME PROJECT WAS BEING CARRIED OUT, ON WHICH THE ASSESSEE HAD CLAIMED THE DEDUCTION UNDER SECTION 7 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE 80IA(4) OF THE ACT, WHEREIN THE ASSESSEE FULFILLS ALL CONDITIONS AND THE DEDUCTION WAS ALLOWED TO THE ASSESSEE IN ASSESSMENT YEAR 2009 - 10. HE FURTHER POINTED OUT THAT EVEN THE TOLL INCOME WAS SHOWN IN ASSESSEES HANDS IN SUBSEQUENT YEARS, WHICH HAS BEEN ACCEPTED AS SUCH. HOWEVER, THE COMMISSIONER WANTS REVISION OF IS SUE WHICH HAS BEEN DULY CONSIDERED IN EARLIER YEARS AND THIS YEAR VIDE ORDER PASSED UNDER SECTION 143(3) OF THE ACT AND ALSO IN 148 PROCEEDINGS, SUCH RE - CONSIDERATION OF THE ISSUE UNDER SECTION 263 OF THE ACT, AS PER LEARNED AUTHORIZED REPRESENTATIVE FOR T HE ASSESSEE WAS NOT PERMISSIBLE. 11. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDER OF COMMISSIONER WITH SPECIAL REFERENCE TO PARAS 4 AND 5. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UNDER THE PROVISIONS OF SECTION 263 OF THE ACT , THE COMMISSIONER IS EMPOWERED TO EXERCISE HIS JURISDICTION WHERE THE ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN CASE BOTH THE CONDITIONS OF SECTION 263 OF THE ACT ARE SATISFIED I.E. ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE, THEN THE COMMISSIONER IS EMPOWERED TO EXERCISE HIS JURISDICTION UNDER SECTION 263 OF THE ACT. HOWEVER, WHERE THE ASSESSING OFFICER HAS CONSIDERED THE ISSUE A ND HAS TAKEN A VIEW ON THE ISSUE, MERELY BECAUSE THE COMMISSIONER DOES NOT AGREE WITH THE VIEW TAKEN BY ASSESSING OFFICER WOULD NOT ENTITLE THE COMMISSIONER TO EXERCISE HIS JURISDICTION OF REVISION UNDER SECTION 263 OF THE ACT. SUCH IS THE PROPOSITION LAI D DOWN BY THE HON'BLE SUPREME COURT AND VARIOUS OTHER COURTS. 8 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE 13. NOW, COMING TO THE FACTS OF PRESENT CASE, THE ASSESSEE HAS BEEN CLAIMING AFORESAID DEDUCTION UNDER SECTION 80IA(4) OF THE ACT IN THE PRECEDING YEARS AND EVEN IN SUCCEEDING YEARS. THE CLAIM OF ASSESSEE WAS DULY VERIFIED BY THE ASSESSING OFFICER IN PRECEDING YEAR I.E. ASSESSMENT YEAR 2009 - 10 AND BY SPEAKING ORDER PASSED UNDER SECTION 143(3) OF THE ACT , THE SAID CLAIM OF ASSESSEE WAS ALLOWED. THE STATUS OF ASSESSEE REMAINS THE SAME AS IN EARL IER YEARS EVEN FOR THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER HAS ACCEPTED THE STATUS OF ASSESSEE AND ALLOWED DEDUCTION CLAIMED UNDER SECTION 80IA(4) OF THE ACT BY PASSING SPEAKING ORDER UNDER SECTION 143(3) OF THE ACT. THE ASSESSMENT PROCEEDING S IN THE HANDS OF ASSESSEE WERE INITIATED UNDER CASS SOLELY FOR THE PURPOSE OF VERIFYING THE CLAIM OF ASSESSEE UNDER SECTION 80IA(4) OF THE ACT. THE ASSESSEE HAS ALSO FILED ON RECORD THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER JUSTIFYING ITS CLAIM O F DEDUCTION UNDER SECTION 80IA(4) OF THE ACT, WHICH HAS BEEN VERIFIED BY ASSESSING OFFICER AND SPECIFIC COMMENTS TO THE SAME HAS BEEN MADE. IT IS UNDISPUTED THAT THE ASSESSEE WAS PARTNERSHIP CONCERN AND HAD CLAIMED THE AFORESAID DEDUCTION BEING INCOME FRO M ELIGIBLE BUSINESS OF DEVELOPMENT, OPERATION AND MAINTENANCE OF INFRASTRUCTURAL FACILITIES. VIDE PARA 6.1 (WRONGLY NUMBERED), THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 01.06.2012 GIVES HIS CLEAR FINDING THAT FURTHER THE PARTNERSHIP FIRM FULFILLS AL L THESE CRITERIAS PROVIDED U/S. 80IA(4)(I)(A)&(B) OF THE ACT, AND THEREFORE THE SAID PROJECT IS ELIGIBLE FOR GETTING THE BENEFITS OF THE PROVISIONS OF THE SAID SECTION . ONCE THE CRITERIA OF SECTION HAS BEEN VERIFIED AND THE ASSESSEE HAS BEEN FOUND TO HAVE FULFILLED THE SAME AND THE ASSESSING OFFICER HAS THUS, ACCORDED THE BENEFITS OF SAID SECTION TO THE ASSESSEE, THEN SUCH A VIEW IS NOT OPEN FOR ANY REVISION BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT. HERE, IT MAY BE POINTED OU T THAT THE SAID ORDER WAS PASSED ON 01.06.2012 9 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE AND HAD BECOME FINAL. THE COMMISSIONER HAS INITIATED PROCEEDINGS UNDER SECTION 263 OF THE ACT BY ISSUE OF SHOW CAUSE NOTICE, WHICH IS DATED 08.01.2016. IN CASE THE COMMISSIONER HAD TO EXERCISE ITS JURISDICTI ON OF REVISION OF ASSESSMENT ORDER PASSED ON 01.06.2012, THEN SHOW CAUSE NOTICE UNDER SECTION 263 OF THE ACT COULD BE ISSUED ONLY UPTO MARCH, 2015, WHICH IS NOT SO. HENCE, THE ASSESSMENT ORDER BECOMES FINAL. 14. NOW, COMING TO SECOND STAGE OF PROCEEDIN GS IN THE CASE OF ASSESSEE, WHERE AFTER PASSING OF SAID ASSESSMENT ORDER, THE ASSESSING OFFICER HAD RECORDED REASONS FOR REOPENING THE ASSESSMENT PROCEEDINGS, WHEREIN THE SOLE REASON FOR REOPENING THE ASSESSMENT WAS AS UNDER: - ON VERIFICATION OF E - RETURN OF INCOME FOR A.Y. 2010 - 11 FILED BY THE ASSESSEE FIRM, IT IS SEEN THAT IT HAS CLAIMED DEDUCTION OF 1,42,40,062/ - UNDER SECTION 80 - IA OF THE ACT. THE DEDUCTION U/S 80 - IA OF THE ACT IS ALLOWABLE IN THE CASE OF COMPANY ONLY AND NOT TO ANY OTHER PERSON LIKE INDIVIDUAL, HUF, FIRM, ETC. NEEDS TO BE VERIFIED. 15. THE BASIS FOR REASONS RECORDED FOR REOPENING THE ASSESSMENT UNDER SECTION 148(2) OF THE ACT WAS DEDUCTION CLAIMED UNDER SECTION 80IA(4) OF THE ACT, WHEREIN THE ASSESSING OFFICER OBSERVED THAT IT WAS ALLOWABLE IN THE CASE OF COMPANY ONLY AND NOT TO ANY OTHE R PERSON I.E. INDIVIDUAL, HUF, FIRM, ETC. AND HENCE, IT NEEDED VERIFICATION. SIMILAR REASONS HAVE ALSO BEEN RECORDED FOR ASSESSMENT YEAR 2011 - 12, WHEREIN ADMITTEDLY, ORIGINAL RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND NO ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT. IN RESPONSE TO THE AFORESAID REOPENING OF ASSESSMENT IN THE CASE OF ASSESSEE, THE ASSESSEE RAISED OBJECTIONS TO NOTICE ISSUED UNDER SECTION 148(2) OF THE ACT AND POINTED OUT THAT THE SAID ISSUE OF ALLOWAB ILITY OF DEDUCTION TO A PERSON OTHER THAN COMPANY WAS DISCUSSED DURING ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER HAD GRANTED DEDUCTION AFTER 10 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE BEING SATISFIED WITH EXPLANATION GIVEN ON BEHALF OF ASSESSEE. THE ASSESSEE ALLEGED THAT THERE WAS NO NEW MA TERIAL COMING TO LIGHT FOR INITIATION OF ACTION UNDER SECTION 147 / 148 OF THE ACT AND MERE CHANGE OF OPINION COULD NOT CONSTITUTE REASON TO BELIEVE. HENCE, REQUEST WAS MADE FOR DROPPING PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER VIDE ORDER PASSED UNDER SECTION 143(3) R.W.S. 14 7 OF THE ACT, DATED 31.01.2014 FOR ASSESSMENT YEAR 2010 - 11 AND EVEN FOR ASSESSMENT YEAR 2011 - 12, EVEN DATED HELD THAT THE ASSESSMENT PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 INITIATED BY ISSUING THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 ON 17.10.2012, IS HEREBY DROPPED. HENCE, A PROPER ASSESSMENT ORDER WAS PASSED BY ASSESSING OFFICER DROPPING INITIATED PROCEEDINGS UNDER SECTION 148 OF THE ACT. 16. THE COMMISSIONER IN SHOW CAUSE NOTI CE UNDER SECTION 263 OF THE ACT REFERS TO REOPENED PROCEEDINGS IN THE CASE OF ASSESSEE BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AND HOLDS THAT ACTION OF ASSESSING OFFICER IN DROPPING PROCEEDINGS WAS NOT IN ACCORDANCE WITH LAW AND HENCE, WAS ERRONEOU S IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE . THE ALLEGATION OF COMMISSIONER WAS THAT THE ASSESSEE FIRM WAS NOT ELIGIBLE FOR CLAIMING THE DEDUCTION UNDER SECTION 80IA(4) OF THE ACT, WHERE THE AGREEMENT WAS BETWEEN SUYOJIT INFRASTRUCTURE LTD . AND GOVERNMENT OF MAHARASHTRA AND NOT WITH THE FIRM M/S. SUYOJIT INFRASTRUCTURE. ANOTHER REASON FOR WHICH SHOW CAUSE NOTICE WAS ISSUED, WAS THE BALANCE SHOWN IN BANK AS PER BALANCE SHEET AT ABOUT 3.21 CRORES, WHEREAS THE FIRM M/S. SUYOJIT INFRASTRUCTU RE HAD NOT SHOWN ANY INTEREST CREDITED TO THE PROFIT AND LOSS ACCOUNT FOR THE YEAR AND THE ASSESSING OFFICER HAD NOT CONDUCTED ANY ENQUIRIES IN THIS REGARD. AT THE OUTSET, IT MAY BE POINTED OUT THAT WHERE THE COMMISSIONER HAS EXERCISED HIS JURISDICTION AG AINST REOPENED 11 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE ASSESSMENT UNDER SECTION 147 / 148 OF THE ACT , THEN HE HAS TO CONSIDER ONLY THE SAID ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. AS POINTED OUT BY US IN THE PARAS HEREINABOVE, RE - ASSESSMENT PROCEEDINGS WERE INITIATED FOR THE SO LE PURPOSE OF VERIFYING THE CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. UNDOUBTEDLY, THE SAID PROCEEDINGS WERE DROPPED BY PASSING SPEAKING ORDER. IN OTHER WORDS, ALLOWABILITY OF DEDUCTION WHICH WAS BY EARLIER ORDER PASSED UNDER SECTION 143(3) OF THE ACT, DATED 01.06.2012 WAS NOT DISTURBED. ONCE THE SAID ASSESSMENT ORDER HAS BECOME FINAL, THEN SECOND ORDER PASSED BY ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT MERELY DROPPING RE - ASSESSMENT PROCEEDINGS CANNOT BE HELD TO HAVE DECIDE D THE ISSUE OF ELIGIBILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. THE SAID ISSUE STANDS SETTLED IN FAVOUR OF ASSESSEE BY EARLIER ORDER DATED 01.06.2012, WHICH HAS NOT BEEN DISTURBED BY ANY OF THE AUTHORITIES. THE EXE R CISE OF JURISDICTION BY COMMISSIONER IN SUCH CIRCUMSTANCES BY ISSUING SHOW CAUSE NOTICE AND HOLDING THE ASSESSEE TO BE NOT ELIGIBLE FOR CLAIMING THE DEDUCTION UNDER SECTION 80IA(4) OF THE ACT DOES NOT STAND. WHERE THE COMMISSIONER HAD EXERCISED JURISDICTION AGAINST SECOND AS SESSMENT ORDER PASSED I.E. DROPPING 147/148 PROCEEDINGS, THEN THE STAND OF COMMISSIONER IN HOLDING THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM THE AFORESAID DEDUCTION , CANNOT STAND IN THE EYES OF LAW BECAUSE THE SAID ORDER DOES NOT DECIDE THE SAID ISSUE. 17. ANOTHER POINT, WHICH MAY BE POINTED OUT HEREIN IS THAT ORIGINAL ASSESSMENT ORDER WAS CONSEQUENT TO PICKING UP THE ISSUE DURING CASS OF CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT AND EVEN RE - ASSESSMENT PROCEEDINGS WERE VIS - - VIS AFORESAID DEDUCTION BY ASSESSEE, WHO WAS THE PARTNERSHIP CONCERN. THE ASSESSING OFFICER HAS ALREADY TAKEN A VIEW IN THIS REGARD AND THE SAME CANNOT 12 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE BE DISTURBED BY COMMISSIONER ON THE SAME GROUNDS AS THAT WOULD AMOUNT TO CHANGE OF OPINION. FURT HER, IN ANY CASE, UNDER THE PROVISIONS OF SECTION 80IA(4) OF THE ACT, AN ENTERPRISE IS ENTITLED TO CLAIM THE AFORESAID DEDUCTION AND THE COMMISSIONER IS WRONG IN PROPOSING THAT THE COMPANY IS ENTITLED TO CLAIM THE AFORESAID DEDUCTION . EVEN ON THIS GROUND, THE ORDER OF COMMISSIONER UNDER SECTION 263 OF THE ACT, FAILS. HENCE, WE HOLD THAT EXERCISE OF JURISDICTION BY COMMISSIONER UNDER SECTION 263 OF THE ACT IS BOTH INVALID AND BAD IN LAW. 18. NOW, COMING TO SECOND ISSUE RAISED IN THE SHOW CAUSE NOTICE I.E. IN RESPECT OF BALANCE SHOWN IN THE BALANCE SHEET AND CORRESPONDING INTEREST, NO SUCH ISSUE WAS DECIDED IN 148 PROCEEDINGS NEITHER IN REASONS RECORDED FOR REOPENING NOR IN THE FINAL ASSESSMENT ORDER DROPPING THE SAID PROCEEDINGS. HENCE, THE COMMISSIONER H AS EXCEEDED THE JURISDICTION VESTED UNDER SECTION 263 OF THE ACT AND THE SAID ISSUE COULD NOT FORM THE BASIS FOR INITIATING 263 PROCEEDINGS AGAINST THE ASSESSEE. ACCORDINGLY, EVEN FOR THE SECOND ISSUE, ORDER OF COMMISSIONER IS BOTH INVALID AND BAD IN LAW. WE HOLD SO. 19. SIMILARLY, FOR ASSESSMENT YEAR 2011 - 12, FACTS ARE SIMILAR EXCEPT TO THE EXTENT THAT ORIGINAL ASSESSMENT IN THE CASE WAS COMPLETED UNDER SECTION 143(1) OF THE ACT. IT MAY BE POINTED OUT THAT ONCE THE CLAIM HAS BEEN ALLOWED TO ASSESSEE FOR THE PRECEDING YEAR S AND THERE WA S NO CHANGE IN FACTUAL ASPECTS, THEN THERE WA S NO NEED TO DISTURB THE POSITION, SINCE RULE OF CONSISTENCY IS TO BE APPLIED. APPLYING THE SAME, WHERE THE ASSESSING OFFICER HA D ALLOWED DEDUCTION CLAIMED UNDER SECTION 80IA (4) OF THE ACT TO THE ASSESSEE, THEN EVEN WHILE PROCESSING RETURN OF INCOME UNDER SECTION 143(1) OF THE ACT, SUCH A STAND CANNOT BE SAID TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. HENCE, THERE IS 13 ITA NO S . 850 & 851 /PUN/20 16 M/S. SUYOJIT INFRASTRUCTURE NO MERIT IN THE ORDER PASSED BY COMMISSIONE R UNDER SECTION 263 OF THE ACT. THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE THUS, ALLOWED. 20 . IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 6 T H DAY OF NOVEM BER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 6 T H NOVE MBER , 201 8 . G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3 . , , / DR B , ITAT, PUNE; 4 . / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE