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TMI Blog2019 (7) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... harges and licence fee of software do not constitute income from the industrial undertaking since this was not derived from the industrial undertaking, as the men, material and machinery of the Pondicherry industrial undertaking were not used to earn income and therefore, correctly denied deduction u/s 80IA - Decided against assessee. Reopening of assessment u/s 147 - HELD THAT:- On a perusal of the re-assessment order dated 16.03.2006 and the reason for reopening is based on the information which came to the notice of the AO during the course of the assessment proceedings for the assessment year 2001-02 during which the AO came to know that the assessee does not carry out any maintenance work from its industrial unit at Pondicherry. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for the Assessment Year 1999-2000 under Section 147 of the Act is valid in law? ii. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the appellant is not entitled to relief under Section 80 IA of the Act in respect of AMC charges, other income and in erroneously adding back interest income?" 3.Heard Mr.M.P.Senthil Kumar, learned counsel for the appellant/assessee; and Ms.R.Hemalatha, learned Senior Standing Counsel for the respondent/Revenue. 4.So far as the second substantial question of law is concerned, the same has been decided against the assessee in the assessee's own case for the assessment year 2001-02 (M/s.Diebold Systems P. Ltd., vs. The Assistant Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing and selling activity. The above submissions made by Mr.M.P.Senthil Kumar were never pleaded either before the Assessing Officer, or before the CIT(A) or before the Tribunal either in the same tenor or in a different manner. Therefore, such a plea cannot be raised at this juncture. Even assuming they were raised earlier, when the assessee has miserably failed to establish the same before the fact finding authority, they cannot be permitted to raise such a contention before this Court for the first time. Therefore, the assessee has not made out any ground to interfere with the first issue as well. With regard to the first issue, there was an alternate claim made by the assessee stating that the expenditure incurred in carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue has been settled by the Hon'ble Supreme Court in DCIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd., reported in 295 ITR 499, the decision in the case of DCIT vs. Zuari Estate Development and Investment Co Ltd., [Civil Appeal No(s).6758 of 2004, dated 17.04.2015] and the decision in the case of Commissioner of Income-tax v. Kelvinator of India Ltd. reported in [2010] 320 ITR 561(SC). There can be no dispute to the proposition as to the effect of an intimation given under Section 143(1) and the law has been well settled in the decision in Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd., reported in (2008) 14 SCC 208 followed in Zuari Estate Development and Investment Co Ltd. 10.The case of the appellant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is based on the information which came to the notice of the Assessing Officer during the course of the assessment proceedings for the assessment year 2001-02 during which the Assessing Officer came to know that the assessee does not carry out any maintenance work from its industrial unit at Pondicherry. Thus, the reason for reopening in the instant case was based upon the tangible material which came to the notice of the Assessing Officer subsequent to the intimation under Section 143(1) of the Act. Therefore, the re-assessment initiated under Section 143(3) read with Section 147 is perfectly legal and valid. Consequently, we hold that the decision in Tanmac India (supra) and Orient Craft Ltd. (supra) cannot be applied to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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