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TMI Blog2023 (12) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... in short] in Appeal No. 10208/16-17 dated 08.02.2019 against the order of assessment passed u/s 147/143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") dated 09.03.2016 by the Assessing Officer, ITO, Ward-22(1), New Delhi (hereinafter referred to as "ld. AO"). 2. The revenue has raised the following grounds of appeal :- "1. Whether on the facts and circumstances of the case and in law, the ld CIT(A) erred in allowing exemption u/s 10B to the assessee although the assessee has not carried out any manufacturing activity." 3. The assessee has raised the following grounds in cross objection:- "1. The CIT (Appeal) erred in law and on facts in not adjudicating the grounds taken regarding reopening of the assessment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue, Tribunal Order disposing of the appeal of the revenue and miscellaneous application filed by the revenue. Since the main appeal of the revenue was already disposed by this tribunal, the assessee could not file any cross objection before this tribunal. The miscellaneous application preferred by the revenue was ultimately heard on 03.05.2023 and disposed of on the same date by recalling the order passed by this tribunal. Immediately the assessee has preferred cross objection before this tribunal on 09.05.2023. Hence, we hold that there is no delay at all on the part of the assessee in preferring cross objection before us. Accordingly, the cross objection filed by the assessee is hereby admitted and taken up for adjudication. 5. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion equivalent to the profit earned during the year u/s 10B at Rs. 1,30,19,910/- being 100% export oriented unit. However, during the assessment u/s 143(3) dated 02/02/2011 deduction of Rs. 1.29,82,355/ was allowed and income of Rs. 37,615/- from other sources was excluded from the purview of deduction Subsequently, it has been observed that out of the total purchases of Rs. 4,68,47,462/-, purchases amounting to Rs. 3,08,67,880/- were made on 'H' form of Central Sales Tax which is called penultimate sale. It is a pre-condition for issue of H form to the seller that same goods which are sold in penultimate sale should be exported ie the goods sold by the exporter must be the same as have been acquired by him from his penultimate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the assessee to make full and true disclosure of all material facts relevant for the purpose of assessment. We find that this issue is no longer res integra in view of the decision of the Hon'ble Bombay High Court in the case of Hindustan Lever Ltd Vs. R. B. Wadkar reported in 268 ITR 332 (Bom). The relevant operative part of the said order is reproduced herein:- "20. The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced." 7. In view of the above observations and respectfully following the aforesaid decision of Hon'ble Bombay High Court, we hold that the ld AO had invalidly assumed the jurisdiction u/s 147 of the Act as is evident from the aforesaid reasons reproduced. Hence, the reopening deserves to be quashed and is hereby quashed. Since, the reassessment itself is quashed, the ground raised by the revenue on merits of the addition need not be gone into and they are left open. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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