9911796707
TMI Blog2020 (6) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... pany was subject matter of discussion before the assessment orders were passed for the respective Assessment Years. Reopening of the assessment to deny the adjustments made under is therefore without jurisdiction. Therefore, the proviso to Section 147 puts an embargo on the respondent from proceeding further as no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prayed for directing the respondent to drop the proposed re-assessment proceedings initiated by the respondent. 3. The petitioner is engaged in the manufacture of fertilizers, mixtures, micro nutrient fertilizers, bio pesticides, high quality seeds, and marketing of agro inputs, marketing of consumer industrial products, distributors of agro chemicals, Estate stores, Bata products, Tarpaulins etc. It is also engaged in manufacture of coffee powder, purchase and sale of coffee seeds and tea and retreading of automobile tyres. 4. According to the petitioner, pursuant to the order dated 05.03.2010 of this Court, M/s.Stanes Tyre& Rubber Products Limited (Transferror Company) merged with the petitioner (M/s.Stanes & Company limited) with ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection date Impugned communications date overruling the objections 30564/2016 2010-2011 08.09.2015 19.01.2016 20.07.2016 32477/2016 2011-2012 21.09.2015 19.01.2016 26.08.2016 8. The reasons for re-opening the assessments of the respective Assessment Years as communicated are as follows:- For Assessment Year 2010-11 For Assessment Year 2011-2012 "The assessment in this case was completed u/s 143(3) of the IT Act, 1961 on 31.03.2013 by assessing book profit of ₹ 11,09,65,797/- u/s.115JB of the IT Act. Subsequently it is noticed that on 05.03.2010 the assessee company has obtained an order from Hon'ble Madras High Court approving the scheme of amalgamation between the Holding company T. Stanes & Co. Ltd. (Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forward from the amalgamating company, by virtue of amalgamation u/s.72A of the IT Act, 1961. In this connection it was observed that as per the provisions u/s. 72A(1)(a) and 72A97)(aa) for adjusting the brought forward loss of the amalgamating company, it should be an industrial undertaking engaged in manufacture or processing of goods. In this case, the Stanes Tyre and Rubber Producers were engaged in the business of tyre retreading only. As per the judicial decision of Hon'ble Kerala High Court in the case of CIT Vs. Vijaya Retreders (2001) no manufacturing is involved in tyre retreading. The supreme Court also held that tyre retreading is not an industrial undertaking in CIT Vs. T.N.State Transport Corporation 252 ITR 883 (SC). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(a) of the Income Tax Act, 1961. 12. In this connection, reliance has been placed on the decision of the Kerala High Court in CIT Vs. Vijaya Retreaders, (2002) 253 ITR 53 and that of the decision of the Hon'ble Supreme Court in CIT Vs. Tamil Nadu State Transport Corporation (2001) 252 ITR 883. For the Assessment Year 2010-11, the tax was paid under Section 115JB of the Income Tax Act, 1961 and it has been proposed to be recomputed by denying the adjustment of loss brought forward from the said company amounting to ₹ 7,02,40,408/- similarly for the Assessment Year 2011-12 a sum of ₹ 2,98,02,930/- is sought to be added back to the taxable income. 13. However, it is noticed that the petitioner disclosed this aspect in the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore without jurisdiction. Therefore, the proviso to Section 147 of the Income Tax Act, 1961 puts an embargo on the respondent from proceeding further as no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. 17. At the same time, if in the course of such proceedings the respondent comes to a conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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