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TMI Blog2012 (9) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sections 80HHC and 80-IB of the Act Rs. 45,59,465/- and Rs. 27,35,679/- respectively. Thereafter, assessment was reopened under Section 147 of the Act for a reason that deduction under Section 80HHC of the Act was given without invoking Section 80-IB(13) read with Section 80-IA(9) of the Act. The reopened assessment was completed on 12.3.2007 wherein the deduction under Section 80HHC was restricted to Rs. 31,91,630/- , i.e. only on the balance profits meant after the claim of deduction under Section 80-IB of the Act. Against such order, assessee moved in appeal before CIT(Appeals) who held against the assessee on merits, but in its favour on jurisdiction. Revenue came in appeal before this Tribunal and assessee also moved with cross-objection. The Tribunal, by its order dated 16.1.2009 in I.T.A. No. 127/Mds/2008 upheld the reopening done under Section 147 of the Act, but, nevertheless, allowed the cross-objection of the assessee on merits. It seems assessee has filed further appeal before Hon'ble jurisdictional High Court and such appeal is pending. 3. Meanwhile, there was another reopening attempted by issue of notice under Section 148 of the Act on 29.3.2010. Reason for iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four years from the end of the relevant assessment year. There is no case for the Revenue that there was any failure on the part of the assessee to disclose fully and truly material facts necessary for its assessment, or there was a failure to file return of income. Unless the conditions specified in proviso to Section 147 was satisfied, reopening could not have been done merely relying on subsequent decision of Hon'ble Apex Court. Reliance was placed on the decision of Hon'ble Rajasthan High Court in the case of Raj Kumar Bapna v. Union of India (251 ITR 802) and that of Hon'ble Calcutta High Court in the case of Tantia Construction Company Ltd. v. DCIT (257 ITR 84). 6. Per contra, learned D.R. supported the orders of authorities below. According to him, Hon'ble Rajasthan High Court in the case of Chandiram (supra) had held that reopening could be done based on judicial decision even if pronounced later to the original assessment. As per learned D.R., exposition of law by Hon'ble Apex Court would amount to information and reopening was justified for that reason. 7. We have perused the orders and heard the rival submissions. There is no dispute that this was a second reopening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year unless there was certain types of failures on the part of the assessee. The failures listed are failure to file return of income under Section 139 of the Act, failure to respond to a notice issued under Section 142(1), failure to respond to a notice issued under Section 148 and failure to disclose fully and truly material facts necessary for the assessment. The question is whether the assessee here had failed on any of the above. Assessee had filed return originally under Section 139 of the Act. There is no case for the Revenue that it had not responded to notice under Section 142(1) of the Act. There is no case for the Revenue that assessee had not responded to notice issued under Section 148 of the Act, since already one re-assessment has been done. There is no case that assessee did not disclose fully and truly all material facts necessary to its assessment. The claim of the assessee under Section 80HHC was originally allowed after considering all the aspects of the case. Without any failure on the part of the assessee, by citing a decision of Hon'ble Apex Court, in our opinion, reopening could not have been resorted to. It was held by Hon'ble Calcutta High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Income-tax Appellate Tribunal has wrongly come to the conclusion that the reassessment proceedings were rightly initiated, whereas, the Revenue has not discharged the onus for bringing on record the material to show that disclosure was not made fully and truly. After hearing learned counsel for the appellant-assessee and going through the order passed by the Income-tax Appellate Tribunal, we do not find any ground to interfere in this appeal, as in our opinion no substantial question of law is arising in this appeal, because a pure finding of Act has been recorded to the effect that the reassessment proceedings have rightly been initiated after framing the opinion that some income chargeable to tax has escaped assessment. Under Section 147 of the Act, after its amendment with effect from April 1, 1989 wide power has been given to the Assessing Officer even to cover cases where the assessee had fully disclosed the material facts. The only condition for action is that the Assessing Officer should have reason to believe that income chargeable to tax had escaped assessment. Such belief can be reached in any manner, and is not qualified by a pre-condition of full and true disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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