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TMI Blog2016 (5) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking” under section 80IB. However, judgment (supra) is not applicable to the facts and circumstances of the case because when reopening u/s 147/148 under the given circumstances is itself not permissible, the AO is not empowered to review the applicability of section 10BA. So, in the given circumstances, we are of the considered view that reassessment in this case is not permissible under any circumstances. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ly worked out. 8. That the material available on record have not been properly considered and judicially interpreted and the same do not justify the addition made. 9. That the addition made is based on mere surmises and conjectures and the same cannot be justified by any material on record and the same are highly excessive. 10. The Appellant craves leave to add, amend, alter and/or delete any of the above grounds of appeal at or before the time of hearing." 2. Briefly stated the facts of the case are : assessment of the assessee qua the assessment year 2005-06 was completed u/s 143(3) of the Income-tax Act, 1961 (hereinafter 'the Act') at an income of ₹ 8,48,440/-. The assessee claimed an exemption of ₹ 16,74,971/- inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, this is a case of change of opinion on the part of the AO to invoke provisions u/s 148 of the Act which is not permissible under law and relied upon the judgment cited as CIT Vs Atul Kumar Swami, 362 ITR 693 passed by Hon'ble Jurisdictional High Court and CIT Vs Tupperware India Pvt. Ltd., I.T.A. No. 415/2015 (Del.) order dated 10.08.2015. However, on the other hand, ld. DR relied upon the order passed by the ld. CIT (A). 6. Now, adverting to the case had hand, a bare perusal of the assessment order under challenge goes to show that the assessment in this case has been reopened to review the applicability of section 10BA of the Act under which assessee had claimed exemption at the time of filing the original return of income qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orient Craft Ltd., the operative part of the judgment (supra) is reproduced as under :- "The argument of the revenue that an intimation cannot be equated to an assessment, relying upon certain observations of the Supreme Court in Rajesh Jhaveri (supra) would also appear to be selfdefeating, because if an "intimation" is not an "assessment" then it can never be subjected to Section 147 proceedings, for, that section covers only an "assessment" and we wonder if the revenue would be prepared to concede that position. It is nobody's case that an "intimation" cannot be subjected to Section 147 proceedings; all that is contended by the assessee, and quite rightly, is that if the revenue wants to invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cited as Liberty India (supra) with retrospective effect is also not permissible under law. 9. No doubt, Hon'ble Apex Court in judgment cited as Liberty India (supra) held that incentive profits are not profits derived from eligible business u/s 80IA/80IB, they belong to the category of ancillary profits of such undertaking. Profits derived by way of incentive, such as, DEPB/Duty drawback cannot be credited against the cost of manufacture of goods debited in the profit and loss account and they do not fall within the expression "profits derived from industrial undertaking" under section 80IB. However, judgment (supra) is not applicable to the facts and circumstances of the case because when reopening u/s 147/148 under the given circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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