The assessee company, was set up with the primary objective of undertaking upgradation, modernization, financing, operation, maintenance and management of Cargo Terminal. The assessee entered into Concessionaire Agreement with Delhi International Airport Private Limited (DIAL) which gave right to operate, maintain, develop, modernize and manage the cargo terminal for the period till March 2034. The assessee filed return for relevant AY, claiming deduction u/s 80IA. However, tax was paid on book profits. Thereafter, the case was selected for scrutiny and assessment order was framed u/s 143(3) of the Act. Subsequently, the assessee received a notice for revisionary proceedings to be initiated u/s 263 of the Act by the PCIT. The assessee filed a detailed reply. However, PCIT was not convinced with the reply of the assessee and held that the assessment order was erroneous in so far as it was prejudicial to the interest of the Revenue. The PCIT set aside the assessment order.
Tribunal held that,
++ it can be seen that not once, but three notices were issued by the Assessing Officer and in all the three replies, the assessee has furnished complete detail on the claim of deduction u/s 80IA of the Act alongwith detailed report in Form No. 10CCB. The Revenue alleges that the assessment order is cryptic as the Assessing Officer has not given any clear finding on the claim of deduction u/s 80IA of the Act and, therefore, assessment order is erroneous and in so far as it is prejudicial to the interest of the Revenue;
++ the Assessing Officer did raise queries which were complied by the assessee. It is a settled position of law that powers u/s 263 of the Act can be exercised by the Commissioner on satisfaction of twin conditions, i.e., the assessment order should be erroneous and prejudicial to the interest of the Revenue. By 'erroneous' is meant contrary to law. Thus, this power cannot be exercised unless the Commissioner is able to establish that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. Thus, where there are two possible views and the Assessing Officer has taken one of the possible views, no action to exercise powers of revision can arise, nor can revisional power be exercised for directing a fuller enquiry to find out if the view taken is erroneous. This power of revision can be exercised only where no enquiry, as required under the law, is done. It is not open to enquire in case of inadequate inquiry. This view is fortified by the decision of High Court of Bombay in the case of CIT vs. Nirav Modi. Thus it was decided to set aside the order of the PCIT and restore that of the Assessing Officer dated 14.03.2104 framed u/s 143(3) of the Act;
++ PCIT issued a similar notice u/s 263 of the Act as he found that the assessment order framed u/s 143(3) of the Act dated 14.03.2014 was erroneous, in as much as it was prejudicial to the interest of the revenue for at 2011-12. The Tribunal considered the issue in ITA No. 3182/DEL/2016 - 2018-TIOL-2147-ITAT-DEL and set aside the order of the ld. PCIT and restored that of the Assessing Officer. It was found that the facts of assessment year 2011-12 are same as the facts of the year under consideration except the claim of deduction under Chapter VI is different in value. Since the Tribunal has quashed the order framed u/s 263 of the Act, it was held that the claim of deduction in the initial assessment year i.e. 2011-12 was justified and, therefore, the same cannot be disturbed in the subsequent assessment year when the facts are identical and law has not changed. The Assessing Officer had made ample enquiries before framing the order u/s 143(3) of the Act. In the result, the appeal of the assessee in ITA No. 3376/DEL/2017 is allowed.
(See 2019-TIOL-544-ITAT-DEL)
