9911796707
TMI Blog2014 (12) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be on a mere change of opinion - the basis of reopening of the assessment was the payment of dividend u/s 115 O - Section 80M as it stood during the AY 2003-04 allowed an assessee to claim deduction u/s 80 M of the Act so long as the amount of dividend received is less than the amount of dividend distributed before the due date of filing the return of income - the AO seeking to deny the benefit of tax u/s 80 M on account of Section 115O, has proceeded on an extraneous ground - Section 115O of the Act could not have been invoked to disallow the deduction available u/s 80 M of the Act in the AY 2003-04. The date of filing of return was 31st October, 2003 and the assessee had distributed the dividend on 6th October, 2003 - all cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1.21 Crores and claimed deduction of the same under Section 80M of the Act. This claim for deduction satisfied the condition therein that it shall not be more than the amount of dividend distributed by the Petitioner to its share holders before the due date of filing of return of income for the Assessment Year 2003-04 i.e. 31st October, 2003. In this case, the Petitioner had on 6th October, 2003 declared dividend of ₹ 1.22 Crores. Thus the Assessing Officer accepted the claim for deduction under Section 80M of the Act in his order dated 27th March, 2006 passed under Section 143(3) of the Act in the regular assessment proceeding. 3. On 27th December, 2006, the Assessing Officer issued the impugned notice seeking to reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15th January, 2007 objected to the reasons recorded in support of the impugned notice. The Petitioner pointed that deduction under Section 80 M of the Act was correctly taken in accordance with law for Assessment Year 2003-04. It was pointed out that Section 115 O of the Act came into force w.e.f. 1st April, 2003 and therefore was applicable only on and from Assessment Year 2004-05. By an order dated 29th January, 2007, the Assessing Officer rejected the Petitioner's objection that in view of Section 115 O (5) of the Act, the Petitioner has forfeited its claim for deduction under Section 80 M of the Act. 5. Mr. Jasani, learned Counsel appearing for the Petitioner states that the issue raised in the present Petition is no longer res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of dividend distributed by the first mentioned domestic company on or before the due date. (2) Where any deduction in respect of the amount of dividend distributed by the domestic company, has been allowed under subsection (1) in any previous year, no deduction shall be allowed in respect of such amount in any other previous year. Explanation:- For the purposes of this section, the expression due date means the date for furnishing the return of income under subsection (1) of section 139. 115 O (1):- Notwithstanding anything contained in any other provision of this Act and subject to the provisions of this section, in addition to the income tax chargeable in respect of the total income of a domestic company for any assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment was being sought to be reopened for Assessment Year 2003-04 as in this case on similar grounds. This Court in Godrej Agrovet (supra) inter alia held that under Section 147 of the Act, the Assessing Officer has a power to reopen the assessment by issuing a notice for the same provided that he has reason to believe that income escaped assessment. The reopening of an assessment cannot be on a mere change of opinion. The Court further held that the basis of reopening of the assessment was the payment of dividend under Section 115 O of the Act. The Court held that Section 80M of the Act as it stood during the Assessment Year 2003-04 allowed an assessee to claim deduction under Section 80 M of the Act so long as the amount of dividend rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Revenue is that Section 115 O of the Act is year neutral. Therefore, it is submitted that the deduction under Section 80M of the Act will not be available even it is for an earlier Assessment Year as it does not refer to any particular assessment year. This submission over looks the fact that Section 115 O (5) of the Act only prohibits an assessee from availing of deduction in respect of an amount which has been charged to tax under subsection (1) of the Section 115 O of the Act. What has been charged to tax under Section 115 O (1) of the Act is the dividend distributed by the Petitioner amongst its share holders. The deduction being claimed by the Petitioner under Section 80 M of the Act is not on the amounts which have been distr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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