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TMI Blog2022 (8) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t has examined the claim for deduction under section 80IB(8A) in detail by raising series of queries which were answered at length by the assessee by filing several replies before the Assessing Officer. It is only after considering such documents and replies, the Assessing Officer framed the assessment for year under consideration. Issuance of notice u/s 148 to reopen the assessment for the assessment year 2011-2012 is nothing but would amount to change of opinion on the part of the Assessing Officer as admittedly such notice is issued after a period of four years from the end of the relevant assessment year under consideration and there is nothing on record to show that there is any failure on part of the assessee to disclose fully and truly all material facts relevant for such assessment. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 16131 OF 2018 - - - Dated:- 14-6-2022 - HONOURABLE MR. JUSTICE A.J.DESAI AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR TUSHAR HEMANI, SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH FOR THE PETITIONER MR KARAN SANGHANI FOR M R BHATT CO. FOR THE RESPONDENT JUDGMENT PER : HONOURABLE MR. JUSTICE A.J.DESAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) of the Act, 1961. 4.5) The petitioner challenged such reopening of assessment before this Court by preferring Special Civil Application No.16338/2017 wherein this Court vide order dated 29.1.2018 quashed the notice for reopening the assessment. 4.6) The respondent thereafter issued the impugned notice dated 31.03.2018 under section 148 of the Act, 1961 to reopen the case of the petitioner for the assessment year 2011-2012 on the same facts as that of assessment year 2010-2011 for denying the deduction under section 80IB(8A) of the Act, 1961 on the ground that the certificate issued by DSIR could not have been accepted by the Assessing Officer so as to satisfy that the assessee company has carried out any research and development work either for self or for others which is foundation for availing deduction under the said section. 4.7) The petitioner vide letter dated 16.04.2018 requested the respondent to treat the original return of income as return in response to the notice issued under section 148 of the Act, 1961. However, the respondent vide notice dated 9.7.2018 informed the petitioner that it was mandatory to file fresh return of income electronically and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice. 5.2) It was submitted that vide notice dated 27.10.2014 the petitioner was called upon to furnish all the details with regard to calculation of deduction under section 80IB(8A) and the explanation why such deduction should not be disallowed and thereafter, examining the claim of deduction under section 80IB(8A) of the Act, 1961, the Assessing Officer passed the assessment order under section 143(3) on 15.4.2015. It was therefore, submitted that the respondent has no jurisdiction to issue the impugned notice under section 148 to reopen the assessment under section 147 of the Act, 1961 merely because he has a different opinion than that of his predecessor on the same set of facts as there is nothing on record to indicate that the respondent has any other information in his possession which came subsequent to framing of the original assessment and on basis of such information he has reason to believe that income has escaped assessment. 5.3) Learned Senior Advocate Mr. Hemani submitted that on merits also the petitioner is eligible for claim of deduction under section 80IB(8A). 5.4) It was submitted that the respondent has no jurisdiction to issue the notice beyond a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, 1961. It was therefore, submitted that the respondent had seen tangible material to show that income had escaped assessment. It was submitted that mere certificate issued by DISR cannot be a conclusive proof for granting deduction for research and development under section 80IB(8A) of the Act, 1961. It was therefore, submitted that petition may be dismissed as the respondent authority has rightly issued the notice under section 148 of the Act, 1961 by rejecting the objections raised by the petitioner. 7.We have heard learned advocates appearing for the respective parties and on perusal of the material on record, it is not in dispute that the respondent authority has issued the notice under section 148 of the Act, 1961 beyond a period of four years from the end of relevant assessment year on the basis of reopening notice issued for the assessment year 2010-2011 with regard to the claim of deduction under section 80IB(8A) of the Act, 1961 which is meant for scientific and industrial research and development. The respondent Assessing Officer has recorded reasons for issuing notice disputing the research activities of the petitioner so as to disallow such deduction. 8.T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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