9911796707
TMI Blog2013 (4) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... , the taxpayer cannot be blamed after expiry of four years from the end of the relevant assessment year. Thus, the reopening is invalid. Rectification made by the A.O. on the basis of the Proviso to section 80HHC which was inserted by Taxation Laws (Amendment) Act, 2005. – Held that - The A.O. made an attempt to rectify the original assessment order dated 05-02-2001 on the basis of the retrospective amendment brought in section 80HHC of the Act. On the date of filing of the return, the taxpayer has made the claim on the basis of the law as it stood on the first day of April of the assessment year. Therefore, the amendment made in section 80HHC by Taxation Laws (Amendment) Act, 2005 cannot be a ground to extend the period of limitation for rectifying the original order. - ITA No.344/Coch/2009, ITA No.338/Coch/2011 - - - Dated:- 12-4-2013 - Shri N. R. S. Ganesan And Shri B. R. Baskaran,JJ. For the Appellant : Shri R Krishnan For the Respondent : Shri M Anil Kumar, C.I.T. Smt. S Vijayaprabha ORDER Per N.R.S. Ganesan (JM) Both the appeals of the taxpayer are directed against two independent orders of C.I.T.(A) for the assessment years 1998-99 2001-02. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for deduction u/s 80HHC of the Act. Therefore, according to the ld.DR, the assessment was rightly reopened. 5. We have considered the rival submissions on either side and also perused the material available on record. Admittedly, the assessment was reopened after expiry of four years from the end of the relevant assessment year. The question arises for consideration is whether there was negligence on the part of the taxpayer in furnishing fully and truly all the material facts necessary assessment. As rightly submitted by the ld.representative for the taxpayer, no one could anticipate an amendment which would be brought into the statute book after lapse of 5-6 yearsretrospectively. Therefore, the taxpayer cannot be blamed for not anticipating a law which came subsequently into existence by Taxation Laws (Amendment) Act, 2005 at the time of filing return of income for assessment year 2001-02. It is well settled principles of law that the law applicable for the assessment year is the first day of April of the relevant assessment year. Therefore, the taxpayer is not expected to anticipate the Taxation Laws (Amendment) Act, 2005 which was brought into the statute by retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction u/s 80HHC beyond the period of four years from the date of original assessment is not permissible. According to the ld.representative, the original assessment order was passed on 05-02-2001 in which the deduction u/s 80HHC was allowed. Therefore, after expiry of four years from the date of the assessment order, the assessing officer has no jurisdiction to rectify the order u/s 154 of the Act. 9. On the contrary, Smt. Vijayaprabha, the ld.DR submitted that though the original assessment was made on 05-02-2001, the same was rectified by an order dated 05-12-2005. Therefore, the four years' period has to be calculated from the latest order passed u/s 154 i.e. 05-12-2005. Therefore, the order passed by the assessing officer is within the period of limitation. On a query from the bench, whether rectification can be made on the basis of the retrospective amendment, the ld.representative submitted that the assessment order can be rectified on the basis of retrospective amendment brought in the statute book. The ld.DR has also placed reliance on the judgment of the Apex Court in the case of Hind Wire Industries Ltd vs CIT (1995) 212 ITR 639 (SC) and the judgment of the Madras H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority. Therefore, the income-tax authority was trying to nullify the order of rectification which was passed on 16-09-1968. The Apex Court further found that the Income- tax Officer by the second order of rectification was not trying to rectify the original order of assessment but seeking to rectify an error in the amended order passed on 16-09-1968. Accordingly, the Apex Court found that the order of Income-tax Officer is within the period of four years. 12. In the case before us, it is nobody's case that the assessing officer seeking to rectify the amended order passed on 05-12-2005. Though notice was issued u/s 154 / 155 on the ground that there is an error in the order dated 05-12-2005, in effect, the assessing officer rectified the assessment order passed on 05-02-2001. The relief granted u/s 80HHC attained finality in the assessment order dated 05-02-2001. The relief u/s 80HHC was not subject matter of appeal before any of the appellate authority or the revisional authority. Therefore, there is no question of rectifying the original assessment order dated 05-02-2001 after expiry of four years. The judgment of the Apex Court in the case of Waldies Ltd (su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
