IN INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. Nos. 267 & 318/Ind/2015 Assessment Years:2010-11 and 2011-12 M/s.Shree Balaji Commissioner of Income- Neemuch Vs. tax, Ujjain Infraconstruction Private Limited, Limited, Neemuch PAN: AAGCS2263J Appellant Respondent Appellant by Shri S.S.Deshpande, C.A. Respondent by Shri Rajeev Varshaney, CIT DR Date of hearing 06.09.2016 Date of pronouncement 28.09.2016 ORDER PER O.P. MEENA, ACCOUTANT MEMEBR. These appeals are filed by assessee against orders passed u/s 263 of Income-tax Act, 1961, by ld. Commissioner of Income-tax, Ujjain [hereinafter referred to as I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 2 of 25 CIT] dated 31.03.2015 and 14.03.2016 pertain to assessment years 2010-11 and 2011-12. 2. Following common grounds have been taken by assessee in both appeals :- I.T.A.Nos. 267/Ind/2015 and 318/Ind/2016 A.Ys. 2010- 11 & 2011-12: 1. order passed by ld. CIT u/s 263 is illegal and bad in law and hence be set aside. 2. ld. CIT has erred in passing order u/s 263 on ground that order passed by ld. AO is erroneous and prejudicial to interests of revenue. 2.1 It was proved before ld. CIT that assessee has developed infrastructural facilities on basis of agreement with government and is not merely contractor. order of ld. CIT is based on conjectures and contrary to facts. 3. It was proved before ld. CIT that assessment was framed after due scrutiny of I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 3 of 25 facts and as such order passed is not erroneous and prejudicial and as such no action u/s 263 can be taken. 3. Facts in brief are that assessee is company engaged in Civil Contractors for Government Department (as MPRRDA). assessee has filed its returns of income for assessment years 2010-11 and 2011-12 declaring income at Rs. Nil and Rs. 1,28,910/- respectively after claiming deduction of Rs. 56,14,053/- & Rs. 14,18,660/- for assessment years 2010-11 and 2011-12 respectively u/s 80IA of Income-tax Act, 1961. assessments were made u/s 143(3) on 28.03.2013 & 29.10.2013 at income of Rs. 69,490/- and Rs. 2,70,820/- by allowing deduction u/s 80IA as claimed by assesses. ld. CIT called for assessment records and after examination found that assessee has claimed and was allowed deduction u/s 80IA(4) of Rs. 55,44,563/- and Rs. 14,18,660/- ( except Rs. 1,12,907/- due to claim of 80IA on interest income , which was not derived from business) without proper enquiry and investigation. As I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 4 of 25 per form 10CCB furnished alongwith returns, assessee has commenced operation on 30.07.2001 and has claimed deduction u/s 80IA for first time in assessment year 2002-03. However, for year under consideration, assessee has made claim u/s 80IA on basis of agreement dated 6.10.2008 with MPRRDA. perusal of work order no. 507 dated 6.10.2008 revealed that it was works contract executed by assessee. Therefore, such claim was prima facie disallowable as claim should have been with reference to work of development operation and maintenance of infrastructure facility done in initial year i.e. 2002-03. It was also seen that copy of tendered documents, which was available on record, does not give scope of work involved in development operation, maintenance of infrastructure facility. No other agreement has been placed on record. It was also seen that contract receipts include amount received from P.W.D. also. AO has failed to examine whether contract receipts from P.W.D. were also eligible for inclusion of claim of deduction u/s 80IA of Act. On reading of tendered I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 5 of 25 documents, it appeared that work executed was only contract for relaying of old rural roads and their upgradation. AO has also failed to examine whether new infrastructure facility have been developed. There was no capital out-lay by assessee, raised bills of civil construction work of rates from time to time and, thus, assessee had acted merely as contractor. Therefore, assessee s responsibility was limited to job assigned to him, which clearly does not satisfy conditions laid down under sec 80IA of Act. ld. CIT has also noticed that assessee had executed contract with MPRRDA for execution of work of construction/upgradation of rural roads under PMGSY Phase IX Package No. MP-27-12 Neemuch and routine maintenance work. Thus, assessee was executing only work contract awarded by State Government, payment for work done was being received step by step through running bills and no considerable amount was invested by assessee of its own and all work is being done as per specification of Government and assessee could not execute any work of his own. I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 6 of 25 4. ld. CIT further noted that for assessment year 2010-11 and 2011-12, assessee had made provisions for cost of maintenance and rectification. guarantee was for period of 5 years amounting to Rs. 71,28,907/- and same has been allowed as deduction, whereas it was evident from account that there was already huge credit of Rs. 2,08,34,122/- at beginning of year and for year there was debit of only Rs. 28.62 lakhs. additional credit to account of Rs. 71.28 lakhs and was, therefore, without any basis and should not have been allowed. Accordingly, ld. CIT has issued show cause notice, which was replied by assessee. ld. CIT had discussed reply of assessee. ld. CIT observed that agreement dated 6.10.2008 stipulates that assessee will construct road of 24.30 kms. clause no. (11) provides for maintenance of said road. ld. CIT noted that as per provisions of sec 80IA(4) deduction is allowable for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility. deduction is not allowable in case where developing and maintaining has I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 7 of 25 been undertaken. Thus, as per assessee s own admission it was not eligible for claim of deduction. assessee has claimed that Section does not require that new infrastructure facilities should be developed. However, this contention of assessee was found to be incorrect in light of provisions of section 80IA(4)(i)(b), where it states that agreements should be developing or operating and maintaining of or developing operating and maintaining new infrastructure facility. ld. CIT has also observed on basis of page 11 of instruction to builders para 2.1 & 2.2 that MPRRDA is employer and it has employees. assessee is contractor for construction and upgradation of selection of rural road under PMGSY. Therefore, role of assessee was not for making planning, designing and developing roads, because roads are already selected and existed, which were earmarked for upgradation, construction by MPRRDA. ld. CIT has also relied on decision in case of Sanee Infrastructure Private Limited vs. ACIT, I.T.A.T., Indore Bench, in support of his conclusion. ld. CIT further observed that chart of provisions made and I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 8 of 25 expenses incurred for financial year 2001-02 to 2009-10 does not show that maintenance expenditure was incurred for five years in respect of relevant project. Hence, it cannot be said that there was sufficient basis for allowing provisions for estimated amount. This examination was also not before AO and hence order so passed was rendered as erroneous and prejudicial to interests of revenue on this count. ld. CIT has also placed reliance on decision in case of CIT vs. Deepak Kumar Garg, 299 ITR 435 (MP), Smt. Zubi Kochar vs. ACIT, 112 TTJ 297 ( I.T.A.T., Delhi) and Malabar Industrial Company Limited vs. CIT, 243 ITR 3 (S.C.) and held that order of AO was erroneous as well as prejudicial to interests of revenue. Accordingly, assessment was set-aside with direction to AO to reframe assessment after examining said issue and affording proper opportunity to assessee. 5. Against this orders of ld. CIT passed u/s 263, assessee is in appeals before us. 6. Ld. Authorized Representative of assessee contended that while framing assessment, AO at page I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 9 of 25 2 in para 7 discussed claim of assessee u/s 80IA and made addition of Rs. 69,490/- and Rs. 1,12,907/- being interest received by assessee as not allowable u/s 80IA. assessee has furnished details of deduction claimed under Chapter VIA with supporting evidence. assessee has entered into agreement with State Government, which stipulates that Company will also at its own cost, would maintain road for three years. assessee company has carried out work for developing and maintaining road, which is one of infrastructures facility and eligible for deduction u/s 80IA(4). assessee is responsible to, carry out all necessary repairs and maintenance, rectification of work for same, Department withheld 10% of amount billed and passed and which is released only after furnishing bank guarantee of equal amount to Department. assessee has provided 7% of contract receipts towards estimated cost of maintenance, rectification and guarantee work, whereas Department has estimated and withheld 10% of contract receipt for repairs and maintenance, rectification and guarantee work for period of I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 10 of 25 six months. Therefore, Ld. Authorized Representative of assessee claimed that whole tender is for construction and maintenance of road. It is not mere contract as stipulated in sec 80IA(13). Therefore, provisions of sec 80IA is fully satisfied. Ld. Authorized Representative of assessee also invited our attention to audit report u/s 80IA and Form 10CCB and reply to questionnaire filed during assessment proceedings and contended that assessment has been made after due application and examination of applicability of sec 80IA(4). Therefore, action u/s 263 taken by CIT is bad in law and order deserves to be set-aside. For this purpose, Ld. Authorized Representative of assessee also placed reliance in case of CIT vs. Ratlam Coal Ash Company, 171 ITR 141 (MP), CIT vs. A.K. Timber, 177 ITR 486 ( P&H), CIT vs. Gabriel India Limited, 203 ITR 108 (Bom) and others as per written submissions. 7. On other hand, ld. CIT(DR) supported order of CIT passed u/s 263 and submitted that while framing assessment, AO has not applied his mind to claim I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 11 of 25 of deduction u/s 80IA, whether conditions laid down u/s 80IA(4) of Act are satisfied or not. AO has failed to examine whether assessee is works contractor or developing new infrastructure facility. Ld. CIT (DR) has also relied in case of M/s. Sanee Infrastructure Private Limited in I.T.A.No. 263/Ind/2015 dated 26.03.2012 (A.Y.2009-10), wherein it was held that where work contract awarded by Central/State Government for executing works contract will not be eligible for tax benefit u/s 80IA of Act. ld. CIT (DR) has also placed reliance in case of M/s. S.C.C. Projects Pvt.Ltd.vs. Addl. CIT, Range 3, Indore, in I.T.A.No. 67/Ind/2010 dated 26.03.2012 in support of his contention. Ld. CIT (DR) has also brought to our notice that Explanation to Section 80IA(4) does not apply to works contract. Ld. CIT (DR) has filed copy of clarificatory notes, in support of explanation added to Section 80IA(4) w.e.f. 01.04.2000 by Finance act No.2 of 2009, wherein it was provided that section 80IA(4) would not apply to works contract and explanation is clarificatory, hence, it is retrospective in nature and business which is handling I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 12 of 25 nature of works contract awarded by any other person and executed by undertaking or enterprises. 8. We have heard rival submissions and have perused material available on record. We have gone through all judgements cited by parties before us. First we take up legal issue with reference to jurisdiction of invoking provisions of section 263 of Act by learned CIT. scheme of IT Act is to levy and collect tax in accordance with provisions of Act and this task is entrusted to Revenue. If due to erroneous order of assessing officer, Revenue is losing tax lawfully payable by person, it will certainly be prejudicial to interest of revenue. As held in case of Malabar Industries Co. Ltd., Vs. CIT ( 243 ITR 83 (SC), Commissioner can exercise revision jurisdictional u/s 263 if he is satisfied that order of assessing officer sought to be revised is (i)erroneous; and also (ii) prejudicial to interests of revenue. word erroneous has not been defined in Income Tax Act. It has been however defined at page 562 in Black s Law Dictionary (seventh Edition) thus ; I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 13 of 25 erroneous, adj. Involving error, deviating from law . word error has been defined at same page in same dictionary thus: error No. 1 : psychological state that does not conform to Objective reality; brief that what is false is true or that what is true is false . At page 649/650 in P. Ramanatha Aiyer s Law Lexicon Reprint 2002, word error has been defined to mean- Error. mistaken judgement or deviation from truth in matters of fact, and from law in matters of judgement error is fault in judgement, or in process or proceeding to judgement or in execution upon same, in Court of Record; which in Civil Law is called Nullityie (termes de la ley) Something incorrectly done through ignorance or inadvertence S.99 CPC and S.215 Cr.PC. Error, Fault, Error respects act; fault respect agent, error may lay in judgement, or in conduct, but fault lies in will or intention. 9. Section 263 of Income-tax Act seeks to remove prejudice caused to revenue by erroneous order passed by Assessing Officer. It empowers Commissioner to initiate suo motu proceedings either where Assessing I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 14 of 25 Officer takes wrong decision without considering materials available on record or he takes decision without making enquiry into matters, where such inquiry was prima facie warranted. Commissioner will be well within his powers to regard order as erroneous on ground that in circumstances of case, Assessing Officer should have made further inquiries before accepting claim made by assessee in his return. reason is obvious. Unlike Civil Court which is neutral in giving decision on basis of evidence produced before it, role of Assessing Officer under Income-tax Act is not only that of adjudicator but also of investigator. He cannot remain passive in face of return, which is apparently in order but calls for further enquiry. He must discharge both roles effectively. In other words, he must carry out investigation where facts of case so require and also decide matter judiciously on basis of materials collected by him as also those produced by assessee before him. scheme of assessment has undergone radical changes in recent years. It deserves to be noted that present I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 15 of 25 assessment was made under Section 143(3) of Income-tax Act. In other words, Assessing Officer was statutorily required to make assessment under Section 143(3) after scrutiny and not in summary manner as contemplated by Sub-section (1) of Section 143. Bulk of returns filed by assessee`s across country is accepted by Department under Section 143(1) without any scrutiny. Only few cases are picked up for scrutiny. Assessing Officer is therefore, required to act fairly while accepting or rejecting claim of assessee in cases of scrutiny assessments. He should be fair not only to assessee but also to Public Exchequer. Assessing Officer has got to protect, on one hand, interest of assessee in sense that he is not subjected to any amount of tax in excess of what is legitimately due from him, and on other hand, he has duty to protect interests of revenue and to see that no one dodged revenue and escaped without paying legitimate tax. Assessing Officer is not expected to put blinkers on his eyes and mechanically accept what assessee claims before him. It is his duty to ascertain truth of facts stated and I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 16 of 25 genuineness of claims made in return when circumstances of case are such as to provoke inquiry. Arbitrariness in either accepting or rejecting claim has no place. order passed by Assessing Officer becomes erroneous because enquiry has not been made or genuineness of claim has not been examined where inquiries ought to have been made and genuineness of claim ought to have been examined and not because there is anything wrong with his order if all facts stated or claim made therein are assumed to be correct. Commissioner may consider order of Assessing Officer to be erroneous not only when it contains some apparent error of reasoning or of law or of fact on face of it but also when it is stereo- typed order which simply accepts what assessee has stated in his return and fails to make enquiries or examine genuineness of claim which are called for in circumstances of case. In taking aforesaid view, we are supported by decisions of Hon'ble Supreme Court in Rampyari Devi Saraogi v. CIT (67 ITR 84) (SC), Smt. Tara I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 17 of 25 Devi Aggarwal v. CIT (88 ITR 323) (SC), and Malabar Industrial Co. Ltd's case ( 243 ITR 83) (SC). 10. In order to ascertain whether order sought to be revised under Section 263 is erroneous, it should be seen whether it suffers from any of aforesaid forms of error. In our view, order sought to be revised under Section 263 would be erroneous and fall in aforesaid category of "errors" if it is, inter alia, based on incorrect assumption of facts or incorrect application of law or non-application of mind to something which was obvious and required application of mind or based on or insufficient materials so as to affect merits of case and thereby cause prejudice to interest of revenue. 11. view taken by Assessing Officer, therefore, need not only be possible view of matter but also view which is not unsustainable in law . view which is clearly unsustainable in law, in our humble understanding, will include view which is contrary to law laid down by Hon ble Supreme Court. Therefore, view taken by Assessing Officer, even though it may be possible view of I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 18 of 25 matter at point of time when assessment order was passed, cannot be said to be view which Commissioner cannot disturb in revision proceedings. 12. In view of foregoing, it can safely be said that order passed by Assessing Officer becomes erroneous and prejudicial to interests of Revenue under Section 263 in following cases: 1. order sought to be revised contains error of reasoning or of law or of fact on face of it. 2. order sought to be revised proceeds on incorrect assumption of facts or incorrect application of law. In same category fall orders passed without applying principles of natural justice or without application of mind. 3. order passed by Assessing Officer is stereotype order which simply accepts what assessee has stated in his return or where he fails to make requisite enquiries or examine I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 19 of 25 genuineness of claim which is called for in circumstances of case. 13. We shall now turn to facts of case to see whether case before us is covered by aforesaid principles. Perusal of assessment order passed by Assessing Officer does not show any application of mind on his part. He simply accepted claim made u/s 80IA by making obvious and semblance disallowance and interest of Rs. 69,490/- for assessment year 2010-11 and Rs. 1,12,907/- pertaining to income for assessment year 2011-12 from other sources. This is case where Assessing Officer mechanically accepted what assessee wanted him to accept without any application of mind or enquiry. evidence available on record is not enough to hold that claim made by assessee was objectively examined or considered by Assessing Officer. It is because of such non-consideration of issues on part of Assessing Officer that claim by assessee stood automatically I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 20 of 25 accepted without any scrutiny. assessment order placed before us is clearly erroneous as it was passed without proper examination or enquiry or verification or objective consideration of claim made by assessee. In our view, it was fit case for learned Commissioner to exercise his revisional jurisdiction under section 263 which he rightly exercised by setting aside assessment order and directing Assessing Officer to pass fresh order, in light of observations made and after ascertaining facts and affording opportunity to assessee. 14. Reverting to facts of present case, we find from assessment order that AO has simply discussed disallowance amounting to Rs. 69,490/- for assessment year 2010-11 and Rs. 1,12,907/- for assessment year 2011-12 being interest from others for making disallowance out of claim of deduction u/s 80IA of Income-tax Act, 1961. No other aspects have been examined with regard to nature of contract work performed by assessee and how conditions laid down u/s 80IA(4) of Income-tax Act, 1961, are satisfied. We also find that AO has failed to examine I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 21 of 25 whether contract receipts from P.W.D. were also eligible for inclusion in claim of deduction u/s 80IA of Act. perusal of agreement dated 06.10.2008 that MPRRDA reveals that it was work order bearing No.507 executed by assessee. Therefore, such claim of assessee was prima facie inadmissible as claim should have been with reference to work of development operation and maintenance of infrastructure facility. Thus, AO has failed to cause necessary enquiry and investigation as required to allow claim of deduction u/s 80IA. Therefore, order passed by AO becomes erroneous as well as prejudicial to interests of revenue. Therefore, we are of considered opinion that ld. Commissioner has rightly invoked provisions of Section 263 of Act on this issue. We further find that assessee has made provisions for cost of maintenance and rectification. guarantee was made for period of 5 years. However, same stands allowed as deduction without examining that there was already huge credit of Rs. 2.08 crores at beginning of assessment year 2010-11 and there was debit of only Rs. 28.6 lakhs. I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 22 of 25 Therefore, additional credit to tune of Rs. 71.28 lakhs allowed as deduction are without any basis. Therefore, order so passed was without application of mind or investigation. Hence, order is erroneous inasmuch as prejudicial to interests of revenue. We also note that ld. Commissioner has observed on basis of instructions to builders at para 2.1 & 2.2 that MPRRDA is employer and it has got employees, whereas assessee is contractor for construction and upgradation on selected rural road under PMGSY. ld. CIT has also relied on case of CIT vs. Deepak Kumar Garg, (2008) 299 ITR 435 (MP), wherein it was observed that where AO has done only semblance enquiry and that too in very slipshod manner and AO had accepted version of assessee without proper enquiry, as result of which substantial amount of taxable income was not brought to tax, ld. Commissioner rightly held assessment order as erroneous and prejudicial to interests of revenue. Since facts of present case are similar, therefore, above case law is squarely applicable to facts of this case. We also find that ld. CIT has also placed reliance on I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 23 of 25 various case laws as discussed in aforesaid paras, therefore, respectfully following same, we are of opinion that order passed by AO was erroneous as well as prejudicial to interests of revenue. Therefore, ld. CIT has rightly assumed jurisdiction u/s 263 of Act. Our findings that assessee was not entitled to deduction u/s 80IA of Act are so supported by decision of Coordinated Bench in case of M/s. Sanee Infrastructures Private Limited in I.T.A.No. 263/Ind/2015 dated 26.03.2012, wherein it was held that where works contract are awarded by Central/State Government for executing Works Contract will not be eligible for tax benefit u/s 80IA of Income-tax Act, 1961. This view also find supports from decision of Coordinated Bench in case of M/s. S.C.C. Projects Pvt.Ltd. vs. Addl. CIT (supra). 15. We also find support from decision of Hon'ble Gujarat High Court in case of Kataria Construction limited vs. Union of India, 31 taxmann.com 250, wherein scope of Explanation substituted by Finance Act, 2009, with retrospective effect from 01.04.2000 was discussed, wherein it I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 24 of 25 was held that where person who enters into contract with another person i.e. with some Enterprises referred to in Section 80IA for executing works contract will not be eligible for tax benefit u/s 80IA of Act. Therefore, in present case, assessee was not eligible for deduction u/s 80IA of Act. Hence, deduction allowed by AO renders order as erroneous and prejudicial to interests of revenue. 16. In light of above discussion, we find that relevant part of AO in not examining matter carefully would render his order as erroneous as well as prejudicial to interests of revenue. Therefore, in view of foregoing paras of this order, we find that assessment order passed by AO lacks judicial strength to stand. Therefore, we are of considered opinion that ld. Commissioner of Income Tax has correctly exercised his revisional jurisdictional u/s 263 of Income-tax Act, 1961. Therefore, all grounds of assessee for both assessment years under consideration are rejected. I.T.A.Nos. 267/I/15 & 318/I/2016 AY :10-11 & 11-12 SHREE BALAJI NEEMUCH INFRACONSTRUCTION P.LTD. Page 25 of 25 17. In result, appeals of assessee are dismissed. order has been pronounced in open court on 28th September, 2016. Sd/- Sd/- (D.T.GARASIA) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 28th September,2016. CPU* M/s.Shree Balaji Neemuch Infraconstruction Private Limited v. Commissioner of Income tax, Ujjain