9911796707
TMI Blog2015 (2) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,82,750/-. An order of assessment was made on 27.1.2003 under section 143 (3) of the Act by which the total income was determined at Rs. 2,56,02,060/- after making certain disallowances. One of the partial dis-allowances was a deduction under section 33AC of the Act which was claimed by the petitioner on the ground that the petitioner is engaged in the business of 'Operation of Ships.' On this count the petitioner had interalia claimed a deduction of Rs. 2,1594,598/- however the Assessing officer allowed the same to an extent of Rs. 1,82, 28,205/- only. 3. The Assessing Officer issued to the Petitioner a notice dated 15.3.2007 under section 148 of the Act seeking to re-open the assessment for A.Y.2000-01 on the ground that the income had escaped assessment within the meaning of section 147 of the Act. The notice recorded that it was issued after obtaining necessary satisfaction of the Commissioner of Income Tax. The petitioner by its letter dated 17.4.2007 informed the Assessing Officer that the return dated 30.11.2000 filed by the petitioner for A.Y.2000-01 be treated to be a return filed in response to the notice issued under section 148 of the Act. The petitioner also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for its assessment in the return of income for AY 2000-01." 5. The petitioner by its letter dated 16.10.2007 recorded their objections to the notice issued by the Assessing Officer under section 148 of the Act. The petitioner raised the following objections : (i) The return of income for A.Y.2000-01 was filed along with all supporting documents including those required for claiming under section 33AC of the Act; (ii) On the scrutiny and examination of the material documentary evidence placed before the Assessing Officer in the assessment proceedings, the assessment was completed by an order dated 27-1-2013, passed under section 143 (3) of the Act wherein deduction under section 33AC was allowed at Rs. 1,82,28,705/- against the petitioner claim of Rs. 2,15,94,598/-. (iii) In re-opening the assessment the conditions prescribed under section 147 conferring jurisdiction for re-opening the assessment are not satisfied before issuing of a notice under section 148 of the Act as there was no failure to disclose fully and truly all materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation was accepted in totality by the revenue. (iv) It can be seen from the reasons as furnished by the as Assessing Officer it cannot be said that the Assessing Officer had any reason to believe that the income had escaped assessment nor it could be said that the petitioner had failed to disclose fully and truly any material which would warrant reopening of the assessment as per the provisions of section 147 of the Act. (v) The impugned notice was issued on a mere change of opinion which can not be a ground to reopen the assessment. (vi) The impugned notice was issued without being any opinion formed by the Assessing Officer as the Assessing Officer was acting on the recommendation of the CIT (appeals). 8. Learned Counsel for the petitioner, in support of his submissions, has drawn our attention to the following documents as were available before the Assessing Officer in the assessment proceedings placed on record: (i) 47th Annual report of the petitioner for the year 1999- 00. depicting, the following:- &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... international lines calling on ports like Bedi, Sikka, Navlakhi, Okha, Magdalla, Dahanu, Dahej etc. These services includes handling of various cargo such as coal, cement, clinker, salt extraction etc. from ships to shore/ shore to ships and/or from clients' destination to the Mother vessels, Mother vessels to the client's destination." (III) Letter of the petitioner dated 17.1.2003 being petitioner's reply to the notice under Section 143(2) of the Act, in which the petitioner recorded that the petitioner had a fleet of barges and tugs operating at the minor ports on the Western port of India such as Bedi, Sikka, Navlakhi, Okha, Magdalla and Dahanu. (IV) Assessment order dated 27.1.2003 passed under Section 143(3) of the Act in which the Assessing Officer has recorded that the petitioner is engaged in the business of owning and operating ships and barges. The Assessment Order also takes into consideration the claim of the petitioner for deductions under Section 33AC which was partially disallowed. The claim of the petitioner for deduction under Section 33AC of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. These services include handling of various cargo such as coal, cement, clinker, salt, extraction etc. from ships to shore/shore to ships and client's destination to the mother vessel/mother vessel to the client destination. The company also owns barges, onshore equipments and dumpers for its business. The appellant either taps its own sources or appoints or looks for agents who can get business for it. The agents appointed by the appellant assist the appellant to achieve large revenue by increasing its turnover.........." A plain reading of section 33AC makes it abundantly clear that deduction u/s 33AC is available to an assessee which is a government company or a public company formed and registered in India with a main object of carrying on the business of operation of ship..... As can be seen from the appellant's submissions, the appellant is not engaged in the business of operating ships but only providing ancillary services. It is kindly requested that the AO (ACIT, CC-21) and Addl.CIT (Central Range-5) Mumbai) should be directed to not only consider the claim of the appellant in light of above mentioned proposition but also to consider the possibility of reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly all material particulars necessary for assessment in support of the return of income. In the case of the petitioner the Assessing officer had passed an order dated 27-01- 2003 under Section 143(3) of the Act by which the total income was determined at Rs. 2,56,02,060/- after making certain dis-allowances. One of the partial disallowances was a deduction under section 33AC of the Act which was claimed by the petitioner on the ground that the petitioner is engaged in the business of 'Operation of Ships.' On this count the petitioner had interalia claimed a deduction of Rs. 2,15,94,598/- however the Assessing officer allowed allowed the same to an extent of Rs. 1,82,28,205/-. It is an admitted position that the notice in question issued under section 148 of the Act is issued by the Assessing Officer after expiry of a period of four years from the end of the relevant assessment year. When an assessment is sought to be re-opened after expiry of four years from the end of the relevant assessment year, the proviso to section 147 of the Act stipulates a requirement that there must a failure on the part of the assessee to disclose fully and truly all material facts necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 142(1) of the Act which raised various queries in the course of assessment proceedings for the assessment year in question. In our opinion the assessing officers attempt to reopen the petitioner's assessment on the petitioner's own disclosure can in no manner be termed as an appropriate exercise of his jurisdiction and authority under Section 147 so to reopen the assessment beyond the period of four years as this can in no manner be said to be any failure on the part of the petitioner to disclose fully and truly all the facts necessary for assessment. 17. Thus the issue which goes to the root of the matter is the jurisdictional requirement the assessing officer was required to be satisfy before issuing the notice in question under section 148 to reopen an assessment after expiry of four years from the end of the relevant assessment year. The jurisdictional requirement would be whether the petitioner had failed to fully and truly disclose all material facts necessary for his assessment for the relevant assessment year. This would form the very foundation for the Assessing Officer to exercise jurisdiction so as to come to a definite conclusion that income has escaped asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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