9911796707
TMI Blog2012 (4) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the parties, we proceed to pronounce our decision. 5. The respondent assessee-Jagson International Limited is a public limited company. For the assessment year 2001-02, the respondent assessee filed its return of income on 29th October, 2001 declaring taxable income of Rs.48,61,651/-. Assessment order dated 24th March, 2003 under Section 143(3) of the Act was passed computing the total income at Rs.2,81,20,170/- as against the returned income mentioned above. The Assessing Officer recomputed the deduction under Section 33AC of the Act. The Assessing Officer also examined the deduction under Section 80 IA of the Act and the deduction was recomputed. 6. Subsequently, the Assessing Officer recorded "reasons to believe" dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astructure facilities. As per the provisions of section 80-IA(4), the deduction is admissible when an agreement is entered into with the port authorities and the new facilities starts operating on and after 1.4.1995. The perusal of record reveals that the assessee entered into an agreement with the trustees of New Mangalore Port on 9.2.1990. The deduction claimed on this account is not admissible in the case of the assessee. (d)The assessee had claimed depreciation amounting to Rs. 93,26,271/- @ 25% on addition of Rs. 3,69,87,480/- made to Plant & Machineinry during the year. From the perusal of record. ot is noticed that the said addition was made after Sept., 2000 on which depreciation @ 12.5% (50% of 25%) is admissible. Therefore, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing notice on the present appeal, vide order dated 22nd December, 2009 had held as under:- " Re-assessment proceedings were initiated by the Revenue, inter alia, stating that income had escaped assessment in respect of so many items. Additions were made on account of as many as six heads, which are taken note of by the Tribunal in the impugned order. Insofar as additions at (a) to (c) are concerned, on these very grounds the Revenue had earlier filed ITA Nos. 57 & 341/2009, which have since been dismissed. Qua additions at (e) are concerned, the Tribunal has stated that there is a subsequent amendment to Section 14A by the Finance Act, 2002 vide which proviso to the said section is added as per which the Assessing Officer is debarred fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue may be correct, but in view of the order dated 22nd December, 2009, we cannot and should not go into the said aspect. We may note that the Revenue has not preferred any application for review or filed any appeal against the order dated 22nd December, 2009. 13. In these circumstances, we are only examining ground (d) and whether the reopening on the said ground was justified. 14. The Assessing Officer with reference the ground (d) has made addition of Rs.46,23,435/- in the reassessment order dated 28th February, 2006. In the first appeal, the said addition was sustained with the CIT(Appeals) specifically recording as under:- "Ground No. 4: is raised against is raised against disallowance of Rs.46,23,435/- on account of excess claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has completed the assessment without providing any further opportunity. It would be seen that during the course of all these correspondence only legal issues regarding reopening to the assessment as well as claim of deduction have been discussed because reassessment itself was bad in law and reply to other reasons and filing explanation on merits would be frivolous and without any meaning. The assessing officer has not provided any opportunity to the assessee for furnishing any explanation towards this. The submission made by the ld. A.R. of the appellant has carefully been considered but I do not find any substantial support in his contention. The Assessing Officer had specially asked to submit the details and evidences for claiming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is cryptic and does not deal with the contentions and the issues raised with reference to the reopening under Section 147 of the Act. We have referred to and quoted the order of the CIT(A), to highlight the factual matrix and not for any other purpose. The "reasons to believe" have to be tested on the facts/material when the reasons are recorded. As noticed above, the tribunal has not examined and dealt with the said aspect as mandated and required. We accordingly accept the appeal by the Revenue and pass an order of remand directing the tribunal to decide the issue afresh. This is necessary as the respondent assessee has filed before us several documents, which it is stated, were also filed before the tribunal to show and justify that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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