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TMI Blog2018 (3) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of the reopening notice and recording of the reasons. Thus it is not a case of adding to the reasons and / or varying the reasons recorded by the AO but pointing out how the Assessing Officer having himself concluded that no income chargeable to tax has escaped assessment, on the very ground has now issued the reopening notice. Thus there is no merit in this objection of the Revenue. Time gap between the AO's response to the audit objection contesting that any income chargeable to tax has escaped audit and his issuing the reopening notice - Held that:- There is no evidence of the same on record. In any event in such a case the least that is expected of the Assessing Officer is to record in his reasons that he had earlier oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een mentioned at length on the basis of case law as existing in the relevant time that in his understanding of law the Respondent was entitled to the deduction under Section 80 IB (4) in respect of duty drawback incentive. Further the impugned order of the Tribunal also reproduced the audit objections as well as the reasons recorded and on comparing the two comes to a view that in substance both of them are identical. In the above view, it cannot even be remotely suggested that the impugned order of the Tribunal is perverse. Thus there is no merit in this objection of the Revenue. - Decided in favour of assessee. - Income Tax Appeal No. 606 of 2015 - - - Dated:- 24-2-2018 - M.S. Sanklecha And Riyaz I. Chagla, JJ. Mr. Prakash Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi) and the Gujarat High Court in the cases of Jagat Jayantilal Parikh v. Deputy Commissioner of Income Tax (2013) 355 ITR 400 (Guj.) and Raajratna Metal Industries Ltd. v. Assistant Commissioner of Income Tax (2015) 371 ITR 222 (Guj.). 4. However, Mr. Chhotatry, the learned counsel for the Revenue submits that in the present case facts are completely distinguishable. Therefore, according to him, the aforesaid decisions will not govern this particular case. This primarily on the following grounds:- a) The reasons recorded do not indicate that the same has been issued on the basis of audit objection. Therefore as held by this Court in Hindustan Lever Limited Vs. R.B. Wadkar 268 ITR 332, one cannot go behind the reasons recorded in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued beyond a period of four years from the end of relevant Assessment Year. The reasons in support of notice therein did not indicate any failure on the part of the Assessee to fully and truly disclose all material facts. In that context the Court observed that it is not open to the Assessing Officer to improve upon the reasons recorded at the time of issuing the notice. In that case it is observed that the Assessing Officer speaks through his reasons and these reasons cannot be improved upon by the Assessing Officer. No substitution or deletion is permissible nor inferences therefrom are permitted. This is completely different from the present facts where an Assessee points out that the reasons recorded by the Assessing Officer are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been a fresh application of mind to the order passed under Section 143 (3) of the Act leading to his reason to believe that the income chargeable to tax has escaped assessment. One more fact that must not be missed is that reasons recorded itself indicates that it is noticed from the Assessment records that the Assessee . . On being specifically asked, Mr. Chhotaray very fairly informed us that the audit objection would be a part of the assessment records. Therefore, there is evidence on record that the audit objection was considered while issuing the reopening notice and there is nothing on record to even remotely suggest that in view of the delay in issuing the notice, the Assessing Officer applied his mind afresh (without being i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue. 8. The last submission on behalf of the Revenue was that the decision of the Apex Court in Liberty India (Supra) has finally settled the issue of entitlement of deduction under Section 80 IB (4) of the Act viz. duty drawback claim in favour of the Revenue. Thus no fault can be found with the reopening notice as Apex Court order merely clarifies what the law always was and does not make the law. There can be no quarrel with the above proposition that the Supreme Court only declares the law. However, the decision of the Apex Court in Liberty India (Supra) was rendered on 31st August 2009 and the notice seeking to reopen the Assessment year for Assessment Year 2004-05 was issued on 18th March 2009. Therefore, at the time when th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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