9911796707
TMI Blog2017 (8) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent nos. 1 and 2. 2. Both the above petitions are taken up together as they involve the same assessee/petitioners herein raising same issue challenging the notice under Section 147 of the Income Tax Act, 1961. The assessment in Writ Petition No. 614 of 2006 is with regard to the Assessment Year 2000-2001 and Writ Petition No.615 of 2006 is pertaining to the Assessment Year 2001-2002. 3. The brief facts in Writ Petition No. 614 of 2006 are that the petitioners had filed their return of income for the Assessment Year 2000-2001 and thereafter a notice dated 28.08.2003 was issued under Section 147 of the Income Tax Act (herein after referred to as the said Act ) inter alia on the ground that the petitioners were not entitled for deduction under Section 10B of the said Act, as the activities carried out by the petitioners were not 100% export oriented unit. The petitioners filed their reply inter alia disclosing that the petitioners were carrying out 100% export oriented unit and as such entitled for deduction in terms of Section 10B of the said Act. The Assessing Officer after minutely examining the contention by order dated 15.02.2005 accepted the explanation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the respondents to furnish the reasons for such reopening of the assessment. But however, the respondents failed to furnish such reasons and accordingly, the petitioners filed the above petition challenging the notice under Section 147 of the said Act. During the pendency of the above petition, the respondents sought permission to complete the assessment and accordingly, the Assessment Order was passed thereby rejecting the claim of the petitioners for deduction under Section 10B of the said Act and computing the taxable income of the petitioners accordingly. 5. The respondents filed their reply to the said two petitions inter alia contending that the petitioners were not entitled for deduction under Section 10B of the said Act. It is the case of the respondents that the petitioners were not 100% export oriented unit and further they were not carrying out any production and further that the activities which were carried out by the petitioners do not come within the meaning of production as provided under Section 10B of the said Act. It is further pointed out that the petitioners also have an alternate remedy to challenge the Assessment Order carried out pursuant to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported in (2004) 13 SCC 548 in the case of Commissioner of Income Tax, Goa V/s Sesa Goa Ltd. The learned counsel further submits that the contention of the respondents that there was an escape income is totally misplaced as according to him while carrying out the assessment for the Assessment Year 2000-2001 with regard to the same activities. While disposing of the proceedings under Section 143 of the said Act, the Assessing Officer had come to the conclusion that the establishment of the petitioners was 100% export oriented unit and as such entitled for deduction under Section 10B of the said Act. The learned counsel as such submits that the subsequent notice under Section 147 of the said Act is untenable in law and cannot be sustained. The learned counsel further pointed out that in view of the judgment of the Apex Court relied upon by the petitioners, the respondents have no justification to proceed with the proceedings under Section 143 of the said Act. The learned counsel as such points out that the petitioners were entitled for the relief in both the above petitions. 7. On the other hand, Ms. A. Razaq, learned counsel appearing for the respondent nos. 1 and 2 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act which came to be disposed of by regular Assessing Order after examining the reply filed by the petitioners by coming to the conclusion that the unit of the petitioners was 100% export oriented. The Assessing Officer also came to the conclusion that the petitioners were entitled for relief under Section 10B of the said Act. 10. Considering the said findings arrived at by the Assessing Officer in the earlier proceedings, the question of issuing a fresh notice under Section 147 of the said Act would not at all be justified. As rightly pointed out by Mr. Pangam, learned counsel appearing for the petitioners, this is not a case of an escape assessment but a clear case of difference of opinion which cannot be a ground for reopening under Section 147 of the said Act. Apart from that, the undisputed fact of the case reveals that the respondents had not furnished the reasons to the petitioners after they were called upon to do so. On this ground also the subject proceedings under Section 147 of the said Act stands vitiated. 11. With regard to the contention of the learned counsel appearing for the respondent nos. 1 and 2 that the petitioners have an alternate remedy, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts, intermediate products and residual products which emerge in the course of manufacture of goods. 10. It is, therefore, not necessary, as has been sought to be contended by the learned counsel for the Revenue, that the mined ore must be a commercially new product. The decisions and other authorities on the definition of the word ore , as cited by the appellant, are irrelevant. 11. Learned counsel appearing on behalf of the assessee, correctly submitted that other provisions of the Act, particularly Section 33(1)(b)(B) read with Item 3 of the Fifth Schedule to the Act, would show that mining of ore is treated as production . Section 35-E also speaks of production in the context of mining activity. The language of these sections is similar to the language of Section 32-A(2). There is no reason for us to assume that the word production was used in a different sense in Section 32-A. 12. Taking note of the said observations and considering the facts and circumstances of the present case, it is not disputed that the only ground on which the respondents are trying to sustain the impugned assessment after the notice under Section 147 of the said Act is on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
