9911796707
TMI Blog2013 (8) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the assessment u/s 147 of the I.T. Act, 1961 (hereinafter referred to as the "Act") has been challenged. 4. The facts of the case, in brief, are that the assessee filed the return of income on 27/10/2003 declaring total income at Rs.22,17,753/-. However, the assessment was framed vide order dated 30/01/2006 at a total income of Rs.23,36,383/- u/s 143(3) of the Act. Thereafter, the Assessing Officer issued the notice u/s 148 of the Act on 26/03/2010 by recording the following reasons: "(i) In view of decision of Hon'ble Supreme Court in the case Liberty India recorded in 28 DTR 73, the Assessing Officer has reason to believe that DDB & DEPB amounting to Rs.1,63,623/- was wrongly allowed. (ii) The assessee was allowed excess deduction u/s 80HHC to the extent of Rs.8,89,400/-." The assessee objected before the Assessing Officer regarding initiation of proceedings on the issue of DDB and DEPB. It was also stressed upon the fact that section 80HHC itself provides deduction with specific calculation for the incentives referred in section 28(iiic) and section 28(iiid) i.e. Duty Draw Back and DEPB respectively, so there was no case of any escapement. However, the contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision of the Hon'ble Supreme Court in the case of Liberty India (supra), I find that there is clear escapement of assessment because the appellant has claimed deduction on DDB receipt which is taxable in view of Hon'ble Supreme Court judgment in case of Liberty India Ltd. reported in 317 ITR 218 SC. So, the decision of the Hon'ble Supreme Court in the case of Liberty India is clearly applicable in the case of the present appellant assessee. The Assessing Officer reason to believe that income has been escaped within the meaning of sec. 147 of the I.T. Act, 1961. So, the appellant's contention is rejected. Therefore, on this ground, the plea of the appellant is rejected and reopening of the assessment is hold valid. 3.3.2 The provision of sec. 147 provides that if the Assessing Officer has reason to believe that any income chargeable to tax had escaped assessment, he may subject to the provision of sec. 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings. The provision of sec. 148(2) provides that the Assessing Officer shall before issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is noticed that Assessing Officer framed the original assessment u/s 143(3) of the Act on 30.3.2005. the Assessing Officer in the ' opening para of the said assessment order clearly stated that the assessee filed the return of income on 11.11.2003 along with Audited report in form No. 3CB, 3CD, 10CCB 10CCAC and claimed deduction u/s 80HHC, 80IB and 80G of the Income Tax Act. He also mentioned that the assessee had furnished the requisite details, produced cash book, ledger, journal, sales book, purchase book, salary & wages payment register, bank pass book, purchases, sales & expenses bills / vouchers, export invoices, packing lists, bills of lading, shipping bills, advices of bank realization for export sale proceeds and the same had been examined on test check basis. He also mentioned in page 2 of the assessment order that the assessee was manufacturing and exported handicraft articles and had fulfilled all the conditions required for allowability of deduction u/s 80IB of the Act. The Assessing Officer discussed the admissibility of deduction u/s 80HHC and 80IB in para 5 and 5.3 of the assessment order dated 30.3.2005. The Assessing Officer raised specific query regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar view has been taken by the Hon'ble Bombay High Court in the case of Prashant Projects Ltd. (supra), wherein it has been held as under:- "In the original assessment order the Assessing Officer had specifically held that the assessee was carrying on manufacturing activity and having exported manufactured goods could claim a deduction under section 80HHC only as a manufacturer. During the course of the appellate proceedings before the Commissioner (Appeals), a remand report was called for and the Assessing Officer, after considering the material which was produced by the assessee, concluded that goods had been purchased by the assessee which were then exported and that the case of the assessee fall within the purview of sub-section (3)(b) of section 80HHC. The Commissioner (Appeals) accepted the contention of the assessee. This showed that there was a full and true disclosure of the facts by the assessee; and that there was a due application of mind by the Assessing Officer. The second proviso to section 147 provides that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject-matter of any appeal, reference or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable and therefore, the reassessment framed by the Assessing Officer u/s 147 of by issuing notice u/s 148 of the Act after completing the assessment u/s 143(3) of the Act by taking a view which was in consonance with the judgment of the Hon'ble jurisdictional High Court was not valid. 17. Since we have held that re-assessment u/s 147 of the Act as invalid, no finding has been given on other issues raised by the assessee in this appeal." 8.1 In the present case also the original assessment was framed by the Assessing Officer on 30/01/2006 for the assessment year 2003-2004 and the reopening u/s 147 of the Act could have been done upto 31/01/2008. However, the notice u/s 148 of the Act was issued on 26/03/2010 i.e. after the permissible time only on the basis of subsequent judgment of Hon'ble Supreme Court which was not available to the Assessing Officer at the time of framing the assessment on 30/01/2006, u/s 143(3) of the Act after making deep scrutiny. So respectfully following the aforesaid referred to order of this Bench of the Tribunal in the case of Bothra International (supra), the reopening by issuing the notice u/s 148 of the Act on 26/03/2010 is held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the assessee was not controverted by the learned D.R. 13. After considering the submissions of both the parties and perusing the material on record it is noticed that this issue has been decided by learned CIT(A) by observing in pages 4 to 6 of the impugned order as under: "I have considered the facts of the case and the submissions made. I find the issue involved in this ground is that the income from DEPB and DDB are not allowable deduction U/s 10BA in view of the Hon'ble Supreme Court decision in the case of Liberty India Pvt. Ltd. However, the appellant has submitted that the Hon'ble ITAT, Jodhpur Bench has recently decided the issue in various cases that DDB and DEPB claim is allowable u/s 10BA. I have gone through the order dated 31.01.2013 of the Hon'ble ITAT, Jodhpur Bench. The Hon'ble Bench observed as under :- "We have cogitated rival arguments vis-a-vis evidence on record. We have examined the decisions on which parties have placed their respective reliance. We have found that the ratio of the decision of Hon'ble Apex Court rendered in the case of Liberty India V/s CIT reported 225 CTR 233 (Hon'ble Supreme Court) is not applicable to the facts of this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
