9911796707
TMI Blog2023 (8) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... could not discover even with due diligence, the petitioner cannot be blamed for that. If the AO did not examine the issue of allowability of the deduction during the course of regular assessment, the revenue has no jurisdiction to reopen the assessment. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE DEVAN M. DESAI Appearance: For the Petitioner(s) No. 1 : Mr Tushar Hemani, Sr Counsel Assisted by Ms Vaibhavi K Parikh (3238) For the Respondent(s) No. 1 : Mr Karan Sanghani, Advocate For Mrs Kalpanak Raval (1046) ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE DEVAN M DESAI) 1. By way of this petition under Article 226 of the Constitution of India, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 80-IA of the Act. The deduction under Section 80-IA of the Act appeared in the Tax Audit Report also and the same was supported by form No.10CCB. Thereafter, the case of the petitioner was selected for scrutiny / assessment and vide impugned notice dated 30.10.2014, the petitioner was called upon to furnish details such as additions made and details regarding the allowability of the claim of deduction under Section 80-IA of the Act. The petitioner vide communication dated 17.11.2014 furnished all the required details and information called upon by the AO. The petitioner also justified its claim for the deduction u/S.80-IA of the Act. After considering the details and information provided by the petitioner, the AO framed asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year. * It is further submitted by the learned counsel for the petitioner that none of the contingencies are present in the present case. The petitioner has fully and truly disclosed all the material facts necessary for the assessment for the concerned assessment years. The claim of the deduction u/S.80-IA of the Act was also duly disclosed by submitting return of income, tax audit report and form no.10CCB. When the Assessing Officer vide notice dated 30.10.2014 called upon the petitioner to furnish details, the petitioner vide reply dated 17.11.2014 furnished all the details and information which were called upon by the revenue which includes details of deduction under Section 80-IA of the Act where such deduction was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue has followed the procedures and all permissions of competent authorities were taken and hence, there is no illegality in issuing the impugned notice. The case of the petitioner was reopened after analysis of facts available on record and recording the reasons for reopening and after taking due approval of the higher authorities, the impugned notice came to be issued. He has further submitted that decision of disposal of objections dated 27.9.2019 is legal, inasmuch as, the AO during the course of regular assessment could not discover the facts of escapement of income. He has further submitted that the AO could not examine the issue under consideration during the course of regular assessment and hence, there is no change of opinion by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audited P L Account and balance sheet alongwith the return of income where various information / material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is pertinent to mention here that even though the assessee has produced books of account, annual report, audited P L account and balance sheet or otherwise as mentioned above, the requisite material facts as noted above in the reasons for reopening were embedded in such a manner that material evidence could not be discovered by AO even with due diligence. IT is also evident from the above discussion that in this case, the issues under consideration were never examined by the AO during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... batch of civil appeals is, whether the concept of change of opinion stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? x x x x 6. prior to Direct Tax Laws, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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