9911796707
TMI Blog2022 (7) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the books of accounts were separately maintained by the petitioner assessee consistently and the claim of deduction u/s 80IA on similar method was accepted by the department in earlier years as well as in the immediately preceding AY 2010-2011 and after taking into consideration such facts, AO accepted the claim of the assessee in the regular assessment under section 143(3) of the Act in the assessment order for the AY 2011-2012. Thus, reopening the assessment is nothing but a mere change of opinion on the part of AO with regard to apportionment of common expenses between the exempted unit and non-exempted unit vis-a-vis the quantum of deduction u/s 80IA of the Act which was consistently accepted by the department. AO issued notice u/s 148 of the Act only to make a roving inquiry into the facts which were already considered by the Assessing Officer at the time of framing the original assessment u/s 143(3) - Decided in favour of assessee. - HONOURABLE MR. JUSTICE N.V. ANJARIA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR TUSHAR HEMANI, SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 MR NIKUNT RAVAL WITH MRS KALPANAK RAVAL(1046) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny assessment and various details and information were called for by the Assessing Officer. Such details were duly furnished by the petitioner from time to time and it is the case of the petitioner that after considering such details and documentary evidence placed on record, the then Assessing Officer consciously chose not to disturb the claim of deduction under section 80-1A of the Act while framing assessment under section 143(3) of the Act vide order dated 28.02.2014. 5.3) The respondent thereafter issued the impugned notice dated 31.03.18 under section 148 of the Act, seeking to reopen the case of the petitioner for the year under consideration. 5.4) The petitioner therefore, filed return of income on 26.05.2018 in response to the notice issued under section 148 of the Act. The petitioner, also vide letter dated 28.05.18, furnished a copy of such return of income and requested the respondent to supply copy of reasons recorded for reopening the assessment. 5.5) The respondent, vide letter dated 09.07.18, supplied the copy of reasons recorded for reopening the case of the petitioner. The reasons recorded by the Assessing Officer for reopening the assessment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales 59994472 39921848 39921848 99916320 Less other Income 866349 34897 34897 901246 1) Total income eligible for deduction u/s.80IA 59128123 39886951 39886951 99015074 Percentage of sales/turnover 59.72 40.28 40.28 100 2) Direct Expenditure 2(I) Operational Expenses -Surat 12122872 12122872 2(II) Operational Expenses-Udaipur 2753446 2753446 2(III) Financial Charges - Surat 23972 23972 2(IV) Financial Charges Udaipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince, 4 years from the end of the relevant year has expired in this case, the requirement to initiate proceedings u/s. 147 are reason to believe that Income for the year under consideration has escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the assessment year under consideration. It is pertinent to mention here that reasons to belleve that income has escaped assessment for the year under consideration have been recorded above (refer paragraphs 2 to 3 above). In this case more than four years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s 148 has been obtained separately from Principal Commissioner of Income Tax as per the provisions of section 151 of the Act. 5.6) The petitioner, vide letter dated 28.09.2018, raised objections against reopening of the assessment. 5.7) The respondent, however vide order dated 06.11.2018 disposed of the objections raised by the petitioner holding that the reopening is valid. 5.8) Being aggrieved by the impugned order, the petitioner has preferred the present petition. 6. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 115JB of the Act. It was submitted that even if the entire addition proposed by the respondent (i.e. Rs. 61,30,049/-) is made to the total income of the petitioner, then also the tax liability on the same would still be less than the MAT liability i.e. the petitioner would still be governed by the provisions of section 115JB of the Act. It was submitted that since the petitioner has already paid much higher tax under the provisions of section 115JB of the Act, there would be no addition to the tax liability of the petitioner even if the addition proposed by the respondent is made. Thus, there is no escapement of income chargeable to tax. It was submitted that since the condition precedent for resorting to reassessment under section 147 of the Act is not satisfied in the case of the petitioner, reopening is unjustified. 6.4) Learned Senior Advocate Mr. Hemani submitted that no new tangible material has come to the knowledge of the respondent after framing of the assessment which could have enabled him to have reason to believe that income chargeable to tax has escaped assessment in the hands of the petitioner. It was submitted that since no new tangible material has come to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment for the year under consideration i.e., Assessment Year 2011-2012 which is sought to be reopened by the impugned notice dated 31.03.2018 is clearly beyond a period of four years from the end of relevant assessment year. On perusal of the reasons recorded for reopening the assessment, it nowhere reveals that the assessee has failed to disclose truly and fully all material facts relevant for the assessment. 9. The petitioner assessee availed the deduction under section 80IA of the Act. On the basis of the audit report in Form 10CCB, the reasons assigned by the Assessing Officer to reopen the assessment questioning the apportionment of common expenses between exempted unit and non-exempted unit on the basis of the total turnover of the petitioner company was already considered during the course of the regular assessment under section 143(3) of the Act. 10. Moreover, the petitioner assessee has relied upon the appellate order for the Assessment Year 2009-2010 dated 30.12.2013 to point out that the books of accounts were separately maintained by the petitioner assessee consistently and the claim of deduction under section 80IA on similar method was accepted by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to reassess. But re-assessment has to be based on fulfillment of certain precondition and if the concept of change of opinion is removed, as contended on behalf of theDepartment, then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer .. 12. The Assessing Officer issued notice under section 148 of the Act only to make a roving inquiry into the facts which were already considered by the Assessing Officer at the time of framing the original assessment under section 143(3) of the Act. It appears that the Assessing Officer now wants to re-verify the facts which is not permissible to be an acceptable ground for exercising powers to reopen the assessment. 13. For the foregoing reasons, the impugned notice dated 31.03.2018 issued under section 148 of the Act by the respondent exercising the powers to reopen the assessment for the Assessment Year 2011-2012 is illegal and hereby quashed and set aside. As a consequence, order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
