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TMI Blog2021 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ght for the issuance of a Writ of Certiorari to quash the order passed by the Central Board of Direct Taxes (CBDT) in Instruction No.2/2009 dated 09.3.2009 read with corrigendum to the instruction in so far as it related to 100% Export Oriented Units under the Software Technology Parks (STP) Scheme/Electronic Hardware Technology Parks (EHTP) Scheme. 4. Both the writ petitions were heard on the same day, but were dismissed by two separate orders. As against the dismissal of W.P.No. 6542 of 2014, the appellant - assessee has filed W.A.No.2261 of 2021. 5. With regard to the order impugned before us, the learned Single Judge dismissed W.P.No.6543 of 2014 on the ground that W.P. No.6542 of 2014 filed by the appellant - assessee challenging the said Instruction of the CBDT had been dismissed. The correctness of the said order in W.P.No.6543 of 2014 has been put to challenge in this writ appeal. 6. At the very outset, we need to point out that the reasons assigned by the learned Single Judge for dismissing W.P.No.6543 of 2014 are not tenable. We support such a conclusion with the following reasons : W.P.No.6543 of 2014 was filed challenging the reassessment proceedings under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014, is as to whether the reopening of assessment was valid in law and was it a case of change of opinion and without deciding such a question, W.P.No.6543 of 2014 could not have been dismissed. This would be sufficient to set aside the order passed in W.P.No.6543 of 2014. 11. Now, we need to examine as to whether the reasons given by the Assessing Officer in the order dated 26.8.2013 would qualify as valid reasons for reopening the assessment. For better appreciation, we quote the reasons hereunder : "On perusal, it is found that the assessee company has not produced ratification certificate given by Board of Approval (BoA) on the approval granted by the Development Commissioner as per Section 10B Explanation 2(iv) and directions issued by Board vide Instruction No.02/2009 dated 09 of March 2009. In this regard, the Instruction of the Board clearly says that 'it has been decided that an approval granted by the Development Commissioner in the case of an 100% EOU will be considered valid, once such an approval is ratified by the BoA for EOU Scheme'. Hence, assessee company is not eligible for claiming deduction under Section 10B." 12. On perusal of the above reasons, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant - assessee to file their objections to the reopening and once over again allow the Assessing Officer to take a decision as to whether the objections are sustainable or not. 16. Furthermore, the reasons for reopening were not based on any allegation of non disclosure of the financial details of the assessee or in respect of any transaction done by them in the normal course of business. The reopening was solely on the basis that an order of ratification by the Board had not been furnished. 17. The larger question is as to whether it would be within the domain and control of the assessee to obtain a ratification. Further, merely because the ratification has not been done by a Higher Authority, will it automatically vitiate the approval, which was granted by the Competent Authority namely the Development Commissioner. These are all larger questions, which cannot be, obviously, adjudicated by the Assessing Officer and more so, in the case of the assessee because the very Instruction given by the CBDT had been put to challenge by filing W.P.No.6542 of 2014. Though W.P.No.6542 of 2014 was dismissed, the appellant - assessee filed W.A.No.2261 of 2021, which has been entertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years and therefore, the statutory requirement contemplated under Section 147 is to be complied with scrupulously. Thus, the ground taken for reopening of assessment that the assessee has not disclosed fully and truly all material facts is not established in the present case and the assessee, in fact, submitted all the particulars regarding the approval granted by the authority and further ratification, if required, must be instructed by the Department which was not done and therefore, there was no suppression or non-disclosure of material facts by the assessee. Thus, the initiation of proceedings under Section 147 of the Act, beyond the period of four years, is not sustainable and consequently, the impugned proceedings are not in consonance with the conditions stipulated in the Proviso to Section 147 of the Act. 17.Accordingly, the impugned order dated 15.11.2016, passed by the respondent - Department is quashed and the writ petition stands allowed." 19. The learned Single Judge, after noting that the said assessee (Kone Elevators (India) Private Limited), as in the case of the assessee before us, had not produced the ratification certificate from the Board, further noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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