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TMI Blog2014 (9) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order dated 25 October 2002 which could justify the issuing notice beyond the period of six years – relying upon ITO vs. Murlidhar B. Deo [1964 (1) TMI 5 - SUPREME Court]. The notice is not saved by Section 150 of the Act and is barred by limitation as having been issued beyond the prescribed period u/s 149 of the Act - Besides the notice having been issued almost 7 years after the end of the relevant assessment year does not indicate any failure on the part of the petitioner to disclose truly and fully all material facts necessary for assessment - the assessment order passed in the regular assessment proceedings u/s 143(3) of the Act passed on 3 March 1998 was passed by the AO subsequent to the block assessment order passed on 22 August 1997 and after considering all the facts had allowed the deduction u/s 80M of the Act - the grounds/reasons communicated to the assessee in support of the notice dated 23 March 2003 is a clear case of change of opinion and would thus be without jurisdiction – Decided in favour of assessee. - Writ Petition No. 3317 of 2004 - - - Dated:- 25-8-2014 - M. S. Sanklecha And N. M. Jamdar,JJ. For the Petitioner : Mr. P. J. Pardiwala, Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 20.50 lacs under Section 80M of the Act was allowable. The Tribunal took on board the order passed by the Assessing Officer under Section 143(3) of the Act in regular assessment proceedings allowing deduction of ₹ 20.50 lacs under Section 80M of the Act. The Tribunal held that the petitioner i.e. appellant before it had brought evidence on record to indicate that the dividend had been paid by the petitioner before 30 November 1995. In view of the above, addition of ₹ 20.50 lacs made by the Assessing Officer for the block period was deleted. 7. On 26 March 2003, the impugned notice was issued seeking to reopen the assessment for Assessment Year 199696. The reasons for reopening the assessment as furnished to the petitioner were as under: M/ S. SHREE KRISHNA SILK INDUSTRIES A.Y. 1995-96 A search seizure action u/s. 132 of the I. T. Act, 1961 was conducted on M/s. Shree Krishna Silk Industries Ltd. on 01.08.1996. The assessee had filed nil return for the block period in response to notice u/s.158BC. The block assessment in this case was completed on 30.09.1997 estimating the total undisclosed income of ₹ 20,50,000/- for the block period for A. Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Industries Ltd. on 01.08.1996. The assessee had filed nil return for the block period in response to notice u/s.158BC. The block assessment in this case was completed on 30.09.1997 estimating the total undisclosed income of ₹ 20,50,000/- for the block period for A. Y. 1995-96. In the assessment order, the A. O. disallowed the deduction claim of the assessee u/s. 80M on the ground that the same was distributed beyond the due date and also on the ground that the explanation of the assessee was not convincing and treated the same as undisclosed income of the assessee. Being aggrieved, the assessee went in first appeal before the Hon. ITAT against the above assessment order. The Hon. ITAT while giving relief to the assessee has stated that in view of these facts and for the detailed discussion in IT (SS) A.No.226/Mum/97, we are of opinion that the disallowances of deduction claimed u/s.80M was beyond the power of the AO under Chapter XIVB . Its order No.IT(SS)A. No.226/Mum/97, the Hon.ITAT has given relief to the assesee on various judicial pronouncements viz: 1. CIT v/s. Vinod D. Ghodawat (163 CTR 432) (Bom). 2. CIT v/s. Dr. M. K. E. Memon (112 Taxmen 96) (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reason that there is no finding given in the order of the Tribunal dated 25 October 2002 that deduction claimed on account of dividend of ₹ 20.50 lacs is not available under Section 80M of the Act. Further, it is submitted that the assessment order passed on 3 March 1998 in regular assessment under Section 143(3) of the Act had allowed the petitioner's claim for deduction under Section 80M of the Act to the extent of ₹ 20.50 lacs and the same was accepted by the Tribunal. Consequently the present impugned notice is mere change of opinion on the part of the Assessing Officer. Moreover, it is submitted that there is no allegation of any failure to disclose truly and fully all material facts necessary for assessment on the part of the petitioner. On all the aforesaid three grounds, it is submitted that the impugned notice needs to be quashed and set aside. 10. As against the above, Mr. Suresh Kumar learned Counsel appearing for the revenue repeats and reiterates the grounds in support of the impugned notice. 11. The normal period of limitation for issuing a notice for reopening an assessment is four years and is extended to six years in case the income cha ..... 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