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TMI Blog2017 (9) TMI 1752X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer as well as the Commissioner both failed to appreciate this legal lacuna in the notice of reopening. As department had pointed out that the return of the assessee for the earlier assessment years were accepted under section 143(1) of the Act without scrutiny. We have therefore, not based our conclusion on the third contention of the petitioner's counsel that being a continuous claim, same could not have been disturbed for the later year without withdrawing the benefits of the initial years of assessment. We leave this question open to be examined in appropriate proceedings, if need so arises. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 12767 of 2017 - - - Dated:- 4-9-2017 - Mr. Justice Akil Kureshi And Mr. Justice Biren Vaishnav JJ. For the Petitioner : Mr B S Soparkar, Advocate For the Respondent : Mr Nitin K Mehta, Advocate And Notice Served By Ds ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged an order dated 9.3.2017 passed by the Commissioner of Income tax, Ahmedabad, rejecting the petitioner's revision petition under section 264 of the Income Tax Act. 2. Brief fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al year. This can be gathered from the order of assessment, relevant portion of which reads as under : 8. Deduction Allowable u/s 10B The assessee has claimed deduction u/s 10B of the Income Tax Act @ 100% of profit on its export turn over. During the assessment proceeding it is noticed that the realized of the some export transaction, having amount of ₹ 2,45,418/have not received with in the six month from the end of the financial year. Accordingly, the revised working of the allowable deduction is as under : Profit = Export turnover claimed as reduced later Realization by more than six months(i.e. After September) Total turnover 51341330 176341082 (176586500245418) 176925454 = ₹ 5,11,71,753 Rs.5,12,42,970/- original claim 5,11,71,753 = 71,217/- (Excess amount) Thus the eligible amount for deduction u/s. 10B comes of ₹ 51171753/- instead of the assessee has claimed the amount of ₹ 5,12,42,970/-. 4. To reopen such assessment, the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not qualified for deduction under the provisions of section 10B of the Act as this provisions is applicable to newly established hundred per cent export oriented undertakings approved by the Board as stated above. Hence the deduction as claimed by the assessee u/s. 10B of the Act of ₹ 5,12,42,970/is not allowable as not eligible. 4. I have therefore reason to believe that the income of the assessee of atleast ₹ 5,12,42,970/has escaped assessment within the meaning of section 147 of the Incometax Act, 1961 for the AY 200708. 5. The petitioner raised objections to the notice of reopening of assessment, but eventually submitted to the jurisdiction of the Assessing Officer and participated in the reassessment proceedings during which also the assessee raised serious dispute about the very jurisdiction of the Assessing Officer to carry out reassessment. The assessee also raised additional grounds on merits of the claim. Ignoring such objections of the petitioner, the Assessing Officer passed a fresh order of assessment on 25.3.2015 disallowing the petitioner's claim of deduction under section 10B of the Act on the ground that the assessee had not ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 10B of the Act is available for successive ten years from the commencement of the activity. Assessment year 20072008 was not the first year of commencement. The assessee had raised such claim continuously from inception from the year 2003 onwards. All such claims were granted without disturbing the initial order of assessment. It was not open for the Assessing Officer to disturb the claim in the later year. 8. On the other hand, learned counsel Shri Nitin Mehta for the department opposed the petition contending that the assessee did not disclose during the original assessment proceedings that he did not enjoy approval of the Board appointed by the Government of India. Certification by STPI was not a substitute for such approval. Assessing Officer during the original assessment had not examined this aspect. Reopening of the assessment was therefore, valid. The Commissioner did not commit any error in rejecting the revision petition of the petitioner. 9. In the present petition, the petitioner having participated in the assessment proceedings and thereafter having challenged the order of assessment before the Commissioner in revision petition under section 264 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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