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2017 (11) TMI 1080 - AT - Income TaxReopening of assessment - grant of deduction u/s 35E - Held that - A plain reading of the reasons recorded for re-opening takes us to a conclusion that the assessee has produced all evidences and filed all the details before the AO during the course of assessment proceedings and the AO had on considering the same granted deduction u/s 35E of the Act and thereafter rectified its claim u/s 154 of the Act vide order 20.12.2006. There is no new material which has come to the possession of the AO based on which the reopening has been made. In fact all the material facts required for grant of deduction u/s 35E are on record and the AO had examined the same. Merely mentioning that there is a failure on the part of the assessee in disclosing fully and truly all material facts in respect of this claim of the claim of deduction u/s 35E of the Act, as were necessary for assessment, in the reasons recorded, cannot per say fulfill the requirement of law when there is full disclosure of all the facts,. The requirement of the proviso to section 147 of the Act are not fulfilled in this case. - Decided in favour of assessee. Allowability of the claim of the assessee for development expenditure - Held that - The details of the expenditure are given at para 6.2. of the order of the ld. CIT(A). The assessee has filed an application for the admission of additional evidence on this issue. On a careful consideration of this application we are of the considered view that the assessee was prevented by sufficient cause from furnishing these evidences before the First Appellate Authority or AO. Hence we allow this application of the assessee and admit this additional evidence. The additional evidence is in the form of order of exemption passed by D.G.I.T. (Exemption), Kolkata. The claim of the assessee for deduction u/s 80G of the Act, for a sum of ₹ 1 crore paid to West Bengal Family Welfare Samity was disallowed, on the ground that there is no certificate of exemption from Directorate of Exemption, Kolkata. As this alternative claim of the assessee has to be considered by the AO in the light of this new order of Director of Income Tax (Exemption), Kolkata dated 08.05.2006 we set aside this ground to the file of the AO for fresh adjudication in accordance with law.
Issues Involved:
1. Validity of reopening of assessment under section 147. 2. Determination of deduction under section 35E of the Income Tax Act, 1961. 3. Allowability of development expenditure as business expenditure under sections 28/37 of the Income Tax Act, 1961. 4. Admission of additional evidence and alternative claim under section 80G of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Validity of Reopening of Assessment under Section 147: The reopening of the assessment for A.Y. 2002-03 was challenged on the grounds that it was beyond the period of four years from the end of the assessment year and the original assessment was completed under section 143(3). The Tribunal observed that the assessee had disclosed all material facts necessary for the assessment during the original proceedings. The Assessing Officer (AO) had considered these facts and granted deduction under section 35E, which was later rectified under section 154. The Tribunal held that there was no new material that came into the possession of the AO to justify the reopening, and the reopening was based on a change of opinion. Citing the Hon’ble Supreme Court and High Court judgments, the Tribunal concluded that the reopening was invalid as the proviso to section 147 was not fulfilled. Consequently, the reassessment order was quashed as bad in law. 2. Determination of Deduction under Section 35E: For A.Y. 2002-03, the Tribunal noted that the Commissioner of Income Tax (Appeals) [CIT(A)] had erred in determining the deduction under section 35E, as the figure determined in the first year of production (A.Y. 1998-99) had become final and could not be disturbed in subsequent years. The Tribunal allowed the appeal of the assessee, quashing the reassessment order. For A.Y. 2006-07, the Tribunal set aside the issue to the AO for fresh adjudication, as the reassessment order for A.Y. 2002-03 was quashed, and the findings of the CIT(A) for A.Y. 2002-03 did not survive. 3. Allowability of Development Expenditure as Business Expenditure: For A.Y. 2002-03, the Tribunal noted that the development expenditure was incurred necessarily and exclusively for business purposes and qualified for claim as revenue expenditure under sections 28/37. The CIT(A) had restricted the claim without any basis, and the Tribunal found no ground for such restriction. For A.Y. 2006-07, the Tribunal admitted additional evidence submitted by the assessee and set aside the issue to the AO for fresh adjudication in light of the new order from the Director of Income Tax (Exemption), Kolkata, which was not available earlier. 4. Admission of Additional Evidence and Alternative Claim under Section 80G: The Tribunal admitted the additional evidence submitted by the assessee for A.Y. 2006-07, which included an order of exemption from the Directorate of Exemption, Kolkata. The alternative claim of the assessee for deduction under section 80G, for a sum paid to West Bengal Family Welfare Samity, was disallowed by the AO due to the absence of an exemption certificate. The Tribunal set aside this ground to the AO for fresh adjudication in accordance with the new exemption order. Conclusion: The Tribunal allowed the appeal of the assessee for A.Y. 2002-03, quashing the reassessment order as invalid. For A.Y. 2006-07, the Tribunal set aside the issues related to deduction under section 35E and development expenditure to the AO for fresh adjudication, admitting additional evidence for consideration. The appeals were allowed for statistical purposes.
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