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TMI Blog2013 (1) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a period of four years from the end of relevant assessment year. For issuing such notice, the Assessing Officer had recorded his reasons which were supplied to the petitioner under communication dated 26-4-2011. We will refer to such reasons in detail at a later stage. Suffice it to notice that the petitioner raised several objections to such process of reopening under communication dated 4-7-2011. The Assessing Officer, however, rejected such objections vide his order dated 27-12- 2011. Assessee has, therefore, preferred this petition challenging the very notice for reopening of the assessment. 2. Having heard learned counsel for the parties, we may peruse the reasons recorded by the Assessing Officer for reopening the assessment. Rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in clauses (iiia) (iiib) and (iiic) of the section 28 in the ratio of the export turnover to the total turnover of the business. As per, the details furnished by the Assessee, vide written submissions dtd.2/11/2006, export incentives included the following : DEPB Income Rs. 16,19,01,763 Loss of sale of DEPB Rs. 68,43,896 Loss on valuation of Licenses at hand (at the year end) Rs. 2,27,16,467 Total Rs. 1,33,41,400 From the above, it will be seen that the export incentives/benefits comprised entirely of DEPB, which is covered under clause (iiid) of section 28. This means that under the first proviso, the DEPB was not to be included while adding back 90% of the export incentives in the ratio of the export turnove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 763/-, and 'Loss on sale of DEPB' of Rs.68,43,896/-, which was adjusted against the DEPB income. Firstly, no details were furnished by the Assessee to show how the income was earned or the loss incurred. Such income and loss could have been booked only if the Assessee had purchased and sold such credits, but, if the Assessee had only sold the credits that it earned against exports then there could not have been any cost to the assessee. This, in turn, means that the entire sales proceeds of such DEPB credits would have to be treated as the profit from the transfer of DEPB. In other words, the DEPB income could have been at a much higher figure than the sum of Rs.16,19,01,763/- disclosed by the assessee. On the other hand, the loss of Rs.68, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of four years. In that view of the matter, it was necessary that the income chargeable to tax has escaped assessment for the reason of the assessee failing to disclose fully and truly all material facts for the purpose of the assessment. In the present case, there is not an iota of such allegation either in the reasons recorded or anywhere else. In fact, in the reasons recorded, the Assessing Officer observes that, thus, a mistake has been committed by the Assessing Officer. A mistake on the part of the Assessing Officer surely would not be a ground to reopen an assessment previously framed after scrutiny beyond a period of four years. Besides such observation which is damaging to the revenue also, there are other sufficient indicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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