1 itxa462-13 sas IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.462 OF 2013 Commissioner of Income Tax II, Pune Appellant. V/s. M/s. Baba Promoters & Developers Respondent. Mr.Vimal Gupta, Senior Advocate with Mr.Sham Walve i/b. Mr.Vipal A. Bajpayee for appellant. Mr.Mihir Naniwadekar for respondent. CORAM : S.C.DHARMADHIKARI AND A.K. MENON, JJ. DATED : 17TH MARCH, 2015 P.C. :- 1. This appeal of revenue challenges order passed by Income Tax Appellate Tribunal Bench at Pune dated 29th February, 2012 (Annexure-E). 2. assessment year in question is 2004-05. assessee, partnership firm working as developer filed return of income on 31st October, 2004 declaring Nil income. assessee had undertaken development and construction of residential project at Pune. assessment was completed under section 143(3) of Income Tax Act, 1961 on 14 th November, 2006, after allowing deduction claimed under section 80IB(10) of I.T. Act of `47,95,506/-. Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 2 itxa462-13 3. Commissioner of Income Tax-II, Pune, upon perusal of this order was of view that same is erroneous and prejudicial to interest of revenue. He, therefore, passed order under section 263 of I.T. Act on 27th February, 2009. assessing officer gave effect to directions of Commissioner and disallowed deduction under section 80IB(10) of Act to extent of `47,95,506/-. That order of assessing officer is dated 29 th December, 2009. 4. Thus, aggrieved by aforesaid order, appeal was preferred by assessee which came to be allowed. 5. Mr.Vimal Gupta, learned senior counsel appearing for revenue in support of appeal submits that Tribunal's order in setting aside order of Commissioner is erroneous. Commissioner was properly satisfied that order passed by assessing officer is erroneous and prejudicial to interest of revenue. Commissioner has elaborated as to how assessing officer has not applied his mind to very crucial issue. In that regard, our attention is invited to para 1.2 of Commissioner's order. Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 3 itxa462-13 Commissioner found that it was urged before assessing officer that though area of plot was shown at 3995.34 sq. mtrs., area of internal approach road was not included. separate agreement dated 20 th February, 2004 was made with same landlords for area of 5 Are so as to have right of approach road for project. This right was given to assessee without any consideration and same was also not registered. Even location of 5 Are of land is not identified in said agreement. In such circumstances. He rightly concluded that assessing officer was in complete error in relying upon this agreement. If agreement is kept out of consideration, then, all requirements of section and particularly deduction or claim is not satisfied. Thus, it was case of incorrect application of law by assessing officer and that is how Commissioner proceeded to exercise his powers. Mr.Gupta also invited our attention to findings recorded by Commissioner particularly in paragraphs 5.1, 5.2 and 6. He, therefore, submits that law laid down in case of Malabar Industrial Co. Ltd. V/s. Commissioner of Income Tax reported in (2000) 243 ITR 83, does not apply. 6. On other hand, Mr.Naniwadekar in support of Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 4 itxa462-13 order of Tribunal submits that in subsequent decision of Hon'ble Supreme Court in case of Commissioner of Income Tax V/s. Max India Ltd. reported in [2007] 295 ITR (SC) 282 wherein it has been clarified how if two views are possible, order under section 263 of I.T. Act cannot be sustained. Mr.Naniwadekar relied upon paragraphs 11 and 12 of order of Tribunal in this regard. Mr.Naniwadekar, therefore, submits that appeal does not raise any substantial question of law and it should be dismissed. 7. With assistance of Mr.Gupta and Mr.Naniwadekar, we have perused relevant part of order of Commissioner and Tribunal. We have also perused both judgments of Hon'ble Supreme Court. We have also perused section 263 of I.T. Act. 8. Tribunal has concluded that assessing officer before final assessment and allowing deductions had verified correctness of claim of assessee, which also included his personal visit to site. Commissioner could not have termed this order as erroneous and prejudicial to interest of revenue. It is Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 5 itxa462-13 not case of mis-application of law or non application of mind. Tribunal has concluded that assessee had offered explanation that plan was approved by Pune Municipal Corporation on condition of making available approach road. There was separate agreement dated 20 th March, 2004 under which 5 Are of land was acquired for road and it is only road available for ingress and outgress to land. In circumstances and with this stand that assessee was supported by Tribunal's order, then, we do not see as to how Commissioner could have exercised powers under section 263 of I.T. Act. It was not open to Commissioner then to have taken into consideration same documents and to arrive at different conclusion. Tribunal has explained in paragraphs 11 & 12 of impugned order that view of Tribunal in case of Radhe Developers & Ors V/s. ITO (Ahmedabad Bench) and that of Chennai Bench would denote as to how issue raised before Commissioner and prior thereto before assessing officer is debatable. If there was view on issue taken by Tribunal itself, then, Commissioner cannot invoke powers under section 263 of I.T. Act only to record different view. Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 6 itxa462-13 9. We are of opinion that such finding of Tribunal and being consistent is not required to be gone into under section 260A of I.T. Act as it is clear that orders of assessing officer and Commissioner, do not raise any substantial question of law. Tribunal had before it view and opinion of assessing officer and that of Commissioner. Tribunal has applied its mind to entire issue and found that assessee had placed necessary and requisite material before assessing officer. assessing officer took view on basis of these materials and that view cannot be questioned in exercise under section 263 of I.T. Act only because Commissioner does not agree with same. We are of opinion that neither is there any perversity in order of Tribunal on this issue nor its conclusion can said to be vitiated by any error of law apparent on face of record. In circumstances and by applying ratio of different decisions of Supreme Court, we proceed to dismiss this appeal. There will be no order as to costs. (A.K. MENON, J.) (S.C.DHARMADHIKARI, J.) Uploaded on - 27/03/2015 Downloaded on - 18/04/2020 17:21:12 Commissioner of Income-tax-II, Pune v. Baba Promoters & Developer