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TMI Blog2016 (1) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... ll it was an error on the part of the Assessing Officer to grant larger relief than what was justified under the legal provisions. At any rate, this would not be a ground for reopening an assessment beyond four years. There were multiple other remedies available to the revenue to exercise within the time frame provided under the statute, but to reopen an assessment beyond the period of four years of the assessment order was simply not one of them since the requirement of such income chargeable to tax having escaped assessment must be relateable to the failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment.- Decided in favour of assessee. Disallowance of expenditures in the form of tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer to re-examine the question would be allowing him to change the opinion originally framed. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 14571 of 2015 - - - Dated:- 11-1-2016 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITIONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has challenged the notice dated 18.11.2014 as at Annexure-A to the petition issued by the respondent-Assessing Officer seeking to reopen the assessment of the petitioner for the Assessment Year 2008-09. Brief facts are as under: 2. The petitioner is a Company registered under the Companies Act. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h price is determined by the A.O. u/s 92C(3), no deduction shall be allowed u/s.10A or section 10AA or section 10B. It is also noticed in the assessment order that, the assessee was allowed exemption u/s.10A of the Act amounting to ₹ 92,48,60,352/- in respect of 100% E.O.U.units: at Pune (Rs.3,84,40,044/-) and Mahape (Rs.92,64,20,308/-). As seen from the P L account for the year ending on 31.03.2008 that the assessee has incurred an amount of ₹ 474.41 lakh towards communication charges and ₹ 64.67 lakh towards 'insurance' aggregating to ₹ 539.08 lakh. No details of 'freight charges' incurred are available from records. Unit-wise breakup of these expenses is also not available. However, based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to the A.Y.2008-09 and no opinion was formed in the original assessment. In view of the above, I am of the opinion that this is a fit case for reassessment by invoking the provisions of section 147 of the Income tax Act, 1961. 3. The petitioner raised objections to the notice for reopening, which objections came to be dismissed by the Assessing Officer by order dated 27.07.2015. 4. It can be seen from the record that the Assessing Officer had two reasons for holding the belief that income chargeable to tax had escaped assessment. The first reason was that addition of ₹ 3.76 crore (rounded off) was made to the business income of the assessee applying arm's length pricing under section 92-C of the Act. In terms of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner and re-examination of the issue would only be in the nature of change of opinion. 7. On the other hand, learned counsel Ms.Bhatt opposed the petition contending that the Assessing Officer had recorded valid reasons. The assessee had not given break-ups of various expenditures and had thus not disclosed truly and fully all material facts. 8. With respect to the first reason, as noted, the Assessing Officer was of the opinion that the additions made during the course of the original assessment by applying arm's length price u/s.92-C of the Act would not qualify for deduction under section 10-A of the Act. Even if that be so, nowhere the Assessing Officer had recorded that excess deduction was granted to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record from the angle of failure on the part of the assessee to disclose truly and fully all material facts. In this context, our attention was drawn by counsel Mr.Soparkar for the petitioner to the return file by the assessee which contained detailed computation of exemption under section 10-A of the Act. It refers to the formula of exemption being equal to profit of business multiplied by export turn over divided by total turn over. A note to this computation contained the following disclosure: Note 1) For the purpose of computing export turnover, telecommunication charges for export of computer software have not been considered as telecommunication charges. The same are fixed in nature and not incurred specifically for export of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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