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TMI Blog2013 (1) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked by the revenue inasmuch as the Assessing Officer is seeking to merely change his opinion which is not permissible in law. In order to examine this plea of the learned counsel for the petitioner, it would be necessary to refer to some facts. 3. The petitioner had filed its return of income for the relevant assessment year on 29.10.2005. In the said return under Schedule K, the petitioner claimed a sum of Rs. 2,61,41,144/- as being exempted under Section 10B of the said Act. The nature of income was described as a business income of a 100% export oriented unit. Alongwith the income tax return, the petitioner had given a break-up of the export turnover and the local turnover. The calculations for deduction under Section 10B for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 in respect of the said assessment year 2005- 06. Question No.11(b) of the questionnaire reads as under :- "11(b). Please give a note on DTA supply and why it has been included in export turnover." In response, the petitioner submitted a reply on 13.09.2007. As regards question No. 11(b), the reply given by the petitioner was as under:- "11.(b) The summary of sales is as follows. 1. Physical Export as per chart enclosed 90030302 2. Constructive Export 94274982 3. Typesetting & scanning 3126464 4. Exchange Fluctuation Gain 842763 (A) Export Turnover 188274511 5. Domestic Sales 30529807 6. Wastage Sales 2002090 (B) Local Turnover 32531897 (A) Export Turnover 188274511 (B) Local Turnover 32531897 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out that the summary of sales given in the aforesaid reply referred to two different types of exports. The first kind was the physical export and the second was the constructive export. The brief note, which has been reproduced above, explains as to what is meant by constructive exports. These are those supplies in the domestic tariff area which have been made on the instructions of the publishers abroad and for which the petitioner has received payment in convertible foreign exchange through normal banking channels. 6. After having received the reply from the petitioner to the detailed questionnaire and in particular to question No. 11(b), the Assessing Officer framed the assessment under Section 143(3) of the said Act on 04.10.2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded from total export turnover shown at Rs.18,82,74,51 II- as per report in Form 56G. So the revised total export turnover would be Rs.18,80,72,879/- which is worked out as under: FOB value of exports including DTA (domestic tariff area) supply Rs.184305284/- Add: Income from typesetting & scanning Rs. 3126464/ Add: Exchange fluctuation gain Rs. 842763/- Less: Telecommunication charges paid to BSNL Rs. 201632/- Export Turnover Rs.188072879/-" Along with the assessment order, was appended the calculation sheet which also had reference to the export turnover which reads as under:- "Annexure-A Calculation of deduction u/s 10B for the AY 2005-06 Export turnover Rs.188072879/- Local turnover Rs.32531897/- Total turnover Rs.22060477 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [59 ITD 268], ITAT Delhi bench had rejected the claim of assessee for considering such domestic sales as export. Thus, the allowance of deduction under section 106 for DTA sales resulted in excess allowance of the deduction by Rs.1,31,65,878/-. On the facts and in the circumstances of the case as discussed above & for the reason of failure on the part of the assessee to disclose fully & truly all material facts necessary for assessment and in view of sub-clause (c) of Expl.2 below section 147, I have reason to believe that income of Rs.1,31,65,878/- chargeable to tax in A.Y.2005-06 has escaped assessment." 8. On going through the purported reasons, it is apparent that the assessment is being re-opened on the ground that the supply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Assessing Officer, after considering the reply furnished by the assessee, framed the assessment order in which, as we have pointed out above, he made specific references to exports in the domestic tariff area and / or constructive exports. While computing the claim for exemption under Section 10B, the Assessing Officer has included the supply made in the domestic tariff area, both in the main body of the assessment order as also in Annexure-A thereto, which was the calculation of the deductions. Therefore, it is absolutely clear that the Assessing Officer had applied his mind to the very issue which is now sought to be raised under Section 147 of the said Act. That would mean that the present venture of invoking Section 147 is nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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