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TMI Blog2016 (8) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Tribunal is just and proper and does not call for any interference by this Court. Even otherwise, the fact that no appeal has been preferred by the assessee against the order of CIT(A) nor any cross objection has been filed in one of the appeals will be covered by the decision of this Court in the case of Dahod Sahakari Kharid Vechan Sangh Ltd. (2005 (7) TMI 45 - GUJARAT High Court ). In that view of the matter, we are of the view that the Tribunal is justified in holding that the Assessing Officer had no jurisdiction to initiate proceedings against the CIT(A)’s order upholding the jurisdiction of the Assessing Officer to initiate reopening proceedings. Accordingly, the said question is answered in favour of assessee. Deduction u/s 80HH on income not derived from industrial undertaking is not being decided in view of the fact that we have already answered the question with regard to section 147 proceedings in favour of the assessee. So far as questions with regard to penalty proceedings are concerned, we are of the opinion that the same shall not survive in view of the fact that the substantial question has already been decided in favour of the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... bad in law and thereby deleting the addition made?" TAX APPEAL NO. 1693 OF 2009 "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) in cancelling the penalty levied u/s 271(1)(c) of the I.T. Act?" TAX APPEAL NO. 1694 OF 2009 "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) in cancelling the penalty levied u/s 271(1)(c) of the I.T. Act?" 4. Tax Appeal No. 976 of 2007 is being taken as lead matter in these set of appeals and therefore we advert to the facts of the said case. The original assessment was completed in this case u/s 143(3) of the Act determining the total income at ₹ 21,58,02,400/- as against the return income of ₹ 2,41,09,803/-. The MAT income declared by the assessee was ₹ 10,21,36,660/-. Thereafter, the assessment was reopened u/s 147 of the Act on the basis of information received from the DDIT(Inv.) regarding bogus purchases made from Shri Nikunj Shah and Jitendra Shah. The reopened assessment was completed on 31.03.2003 determining the income as per order u/s 154 dated 28.10.2002. It is the case of the revenue that in the reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soparkar, learned Senior counsel appearing with Mr. B.S. Soparkar, learned advocate for the assessee submitted that so far as Section 80HH is concerned, the deduction is rightly allowed after bifurcating its activity into two components; namely trading activities and manufacturing activities on the business of total turnover as shown in the books of account. He has relied upon decision of the Apex Court in the case of Dahod Sahakari Kharid Vechan Sangh Ltd. vs. Commissioner of Income Tax reported in [2006] 282 ITR 321 and a decision of this Court rendered in Special Civil Application No. 3352 of 2001 on 08.03.2011. He has also relied upon another decision of this Court in the case of Commissioner of Income Tax- II vs. Mohmed Juned Dadani reported in [2014] 355 ITR 172 (Gujarat) and submitted that the assessee's claim of deduction u/s 80HH of the Act having been allowed by the CIT(A) as per order dated 13.12.2001 and the same having become final because of Revenue's failure to file the appeal against that order the Assessing Officer had no jurisdiction to deal with the issue, once again during proceedings u/s 147 of the Act. 7. We have gone through the order passed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has never claimed any deduction qua this amount. The deduction claimed is qua a separate amount, and that too, on actual payment basis. There is no claim for deduction on due basis. The entire premise, therefore, is incorrect. 25. Once there is absence of mens rea, mere omission from the return of income of an item of receipt neither amounts to concealment, nor deliberate furnishing of inaccurate particulars of income, as laid down by the Apex Court, unless and until there is some evidence or some circumstances to show that the omission was attributable to an intention or desire on part of the assessee to conceal the income so as to avoid imposition of tax thereon. In the present case, the assessee is a cooperative society managed through a governing board and as stated by the society, there is no personal interest involved. The omission has occurred not with an intention but due to oversight. As held by this Court, absence of proof acceptable to the department cannot be equated with fraud or willful default. The circumstances must show that there was a conscious act of concealment or furnishing of inaccurate particulars on part of the assessee. There is nothing on record to show ..... 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