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TMI Blog2017 (5) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... ate asked by the Assessing Officer and thereafter, the Assessing Officer, after having satisfied with the deduction claimed under Section 10B of the Act, allowed such deduction claimed under Section 10B of the Act. Therefore, there was no failure on the part of the assessee in disclosing true and correct facts. At this stage, it is required to be noted that even in respect of some of the earlier years/previous assessment years, similar deduction under Section 10B of the Act has been allowed in the case of very assessee. At this stage, it is required to be noted that even for A.Y 2008-2009 on the very ground, the assessment was sought to be reopened, which has been set-aside by the Division Bench of this Court Thus there does not appear to be any failure on the part of the assessee in not disclosing true and correct facts. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION No. 5746 of 2017 - - - Dated:- 28-4-2017 - Mr. M.R. SHAH Mr. B.N. KARIA JJ. Appearance: Mr. B S SOPARKAR, Advocate for the Petitioner(s) No. 1 Mr. MANISH R BHATT Sr. Advocate with Mrs MAUNA M BHATT, Advocate for the Respondent(s) No. 1 ORAL JUDGMENT (PER : Mr. M.R. SHAH) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] of the Act,1961 on 4/03/2013 declaring the assessed income at ₹ 40,25,242/=. From the record of the assessee company, it was seen and from the perusal of the audited accounts, it is noticed that huge amount of investments were made in mutual funds and liquid funds. Besides, the assessee had received dividend income of ₹ 2300000/= and tax free interest on bonds of ₹ 1065386/= which was claimed exempt in the statement of total income. However, the assessee had made a disallowance under Section 14A r.w.r 8D of ₹ 17267/- only. No explanation and evidences as to why disallowance under Section 14A r.w.r 8D were not made by the assessee on the average value of such investments on which provisions of section 14A were clearly applicable, were given by the assessee. To handle and manage the huge investments in mutual funds and liquid funds, certain administrative expenses under Section 14A r.w.s 8D were compulsorily incurred by the assessee and therefore, the assessee ought to have made disallowance under Section 14A r.w.s 8D in respect of expenditure incurred for earning exempted income. The assessee had also not given investments wise details of dividend inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer also made disallowance under Section 14A read with Rule 8D of the Rules, and therefore, the reopening is nothing but a change of opinion by the subsequent Officer, and hence, the reopening is not permissible. 4.5 Number of other submissions were also made to drop the reopening of the assessment. 4.6 That thereafter, the Assessing Officer has disposed of the objections raised by the assessee and has not agreed with the objections raised by the assessee. Hence, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India with the aforestated prayer. 5. Heard Shri B.S Soparkar, learned advocate for the petitioner and Shri Manish R Bhatt, learned Senior Advocate appearing for the respondent-Revenue. 6. Shri B.S Soparkar, learned advocate for the petitioner has vehemently submitted that in the facts and circumstances of the case, the impugned Notice under Section 148 of the Act and reopening of the assessment for A.Y 2010-2011 is bad in law and illegal, and contrary to the provisions of Income-tax Act, 1961 ie., Section 147 of the Act. 6.1 It is further submitted by Shri Soparkar, learned advocate app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during the original assessment proceedings. It is submitted that after verifying all the documents and being satisfied by the explanation furnished from time to time, the Assessing Officer formed a conscious opinion, accepting the claim of the assessee. It is submitted that although a pointed query was not raised regarding certificate from the Board, but the claim was examined; including the audit reports and Form 56G. It is submitted that merely because the Assessing Officer, while framing the original assessment did not consider the claim from any angle, which ought to have been considered, cannot be a ground to reopen the concluded assessment and that too, beyond the period of four years. In support of his above submissions, Mr. Soparkar, learned advocate for the petitioner has relied upon a decision of Division Bench of this Court in the case of Sarla Rajkumar Varma v. Assistant Commissioner of Income-tax, reported in [2015] 231 Taxman 889 (Gujarat). He has also relied upon a decision of Division Bench of this Court in the case of Gujarat Lease Financing Limited vs. CIT, reported in 360 ITR 496 [Gujarat] as well as another decision of Division Bench of this Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer is justified in reopening of the assessment on the aforesaid grounds. 8. Now so far as deduction claimed under Section 10B of the Act by the assessee, which was granted by the Assessing Officer, it is submitted that the assessee had claimed deduction under Section 10B of the Act without fulfilling all the eligibility conditions for the claim of such deduction and without getting registered with the Board appointed by the Central Government under Section 14 of the Industries Development Regulation Act, 1951. It is submitted that since the assessee has not furnished the requisite certificates from the prescribed authority ie., the Board appointed by the Central Government under Section 14 of the Industries Development Regulation Act, 1951 for fulfillment of all the conditions for eligibility of deduction under Section 10B of the Act, in respect of STP Unit at Pune, the same can be said to be a failure on the part of the assessee to disclose truly and fully all the material facts necessary for the assessment for A.Y 2010-2011. It is submitted that therefore, when the assessee had not fulfilled the conditions for eligibility ofdeduction under Section 10B of the Act in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2 Similarly, even with respect to the deduction claimed under Section 10B of the Act is concerned, it is required to be noted that even the said issue was gone in detail by the Assessing Officer. The assessee produced certificate asked by the Assessing Officer and thereafter, the Assessing Officer, after having satisfied with the deduction claimed under Section 10B of the Act, allowed such deduction claimed under Section 10B of the Act. Therefore, there was no failure on the part of the assessee in disclosing true and correct facts. 11.3 At this stage, it is required to be noted that even in respect of some of the earlier years/previous assessment years, similar deduction under Section 10B of the Act has been allowed in the case of very assessee. At this stage, it is required to be noted that even for A.Y 2008-2009 on the very ground, the assessment was sought to be reopened, which has been set-aside by the Division Bench of this Court in Special Civil Application No. 13860 of 2014. 12. As stated hereinabove, there does not appear to be any failure on the part of the assessee in not disclosing true and correct facts. As observed hereinabove, the issue with respect to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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