9911796707
TMI Blog2014 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (a) On 5 October 2005 the petitioner filed its return of income for the Assessment Year 2005-06 declaring its total income at Nil. The petitioner had arrived at Nil income by having claimed deduction of Rs.307.93 Crores under Section 80IB of the Act from its total income. However, the Assessing Officer by an order dated 3 September 2007 passed under Section 143(3) of the Act while accepting the claim for deduction under Section 80IB of the Act, determined the book profits of the petitioner at Rs.348.58Crores as against Rs.317.78 Crores declared by the petitioner for the purposes of Minimum Alternate Tax; (b) On 11 November 2009, the Commissioner of Income Tax issued a notice to the petitioner in exercise of its power of revision under Section 263 of the Act contending that the Assessment Order dated 3 September 2007 of the Assessing Officer was erroneous and prejudicial to the interest of revenue to the extent it allowed deduction to the petitioner under Section 80IA of the Act. After hearing the petitioner, the Commissioner of Income Tax in exercise of its power under Section 263 of the Act passed an order dated 30 March 2010 denying the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of assessment of the Assessing Officer for the Assessment year 2006-2007. In view of the above, the Tribunal set aside the order dated 30 December 2010 of the Assessing Officer holding that it is entirely based on the finding of the Commissioner of Income Tax under Section 263 of the Act and on the finding recorded in respect of the order of assessment relating to the Assessment Year 2006-07. Thus, the Assessment Order was held to be contradictory to the directions of the Tribunal's order dated 18 September 2012. Accordingly, the order of the Assessing Officer was set aside and the matter restored to the Assessing Officer for de-novo adjudication for the Assessment Year 2005-06 after following the principal of natural justice; (f) Consequent to the above, the Assessing Officer issued a notice dated 7 August 2013 calling upon the petitioner to submit necessary evidence in support of its claim for deduction under Section 80IA of the Act. In response, the petitioner filed various replies, wherein they submitted their claim for deduction under Section 80IA of the Act, both on factual as well as legal grounds; (g) Apparently no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts:- (a) In case the petitioner is aggrieved by the impugned order dated 29 November 2013 of the Assessing Officer, it has an alternative remedy of appeal provided under the Act to the Commissioner of income Tax(Appeals). In view of the above, this petition should not be entertained and the petitioner be directed to avail of the statutory remedy of appeal; (b) There has been no breach of natural justice inasmuch as the notice dated 27 November 2013, calling upon the petitioner to show cause why their claim for deduction under Section 80IA of the Act should not be disallowed itself refers to the fact that the petitioner had been afforded sufficient opportunities to present its case over a longer period including the grant of personal hearing, yet nothing was brought on record to by the petitioner to support its claim for deduction under Section 80IA of the Act. In that view of the matter, there has been no breach of natural justice as sufficient opportunity to present its claim had been granted to the petitioner; and (c) The alleged grievance of the petitioner that the impugned Assessment Order dated 29 No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appropriate evidence then there was no occasion for the Assessing officer to have issued the Show cause notice dated 28 November 2013 calling upon the petitioner to show cause why its claim for deduction under Section 80IA should not be disallowed. In fact the issue of show cause notice on 27 November 2013 is itself an admission of the fact that up to the date of the issue of the notice the Assessing Officer was not certain about disallowing or allowing the claim of the petitioner for deduction under Section 80IA of the Act. We find that once the Assessing Officer has called upon the petitioner to show cause why its claim for deduction under Section 80IA of the Act should not be disallowed, then a reasonable opportunity of filing its reply should be made available to the noticee of the show cause notice i.e. petitioner. In this case, less then 24 hours period is granted to the petitioner to respond to the notice, particularly when there is no fear of the assessment getting time barred in the near future. In such circumstances, it is incumbent upon the notice issuing authority to grant reasonable opportunity to the petitioner to respond to the notice. In fact, granting of an oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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