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TMI Blog2024 (7) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... laim u/s 80IA(4)(iv) in detail by raising various queries which were duly answered by the petitioner-assessee. It is true that the specific query with regard to the issue pertaining to claim under section 80IA on account of amalgamation may not have been under consideration of the AO however, the entire claim made by the petitioner for deduction u/s 80IA was before the AO which was processed while passing the assessment order u/s 143(1)(3) of the Act. Notice for reopening issued beyond the period of four years cannot be sustained. In that view of the matter, it is not necessary to examine the rival contention with respect to validity or otherwise of the claim for deduction under section 80IA(4)(iv) of the Act. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA And HONOURABLE MR. JUSTICE NIRAL R. MEHTA MS VAIBHAVI K PARIKH(3238) FOR THE PETITIONER(S) NO. 1 MRS KALPANA K RAVAL(1046) FOR THE RESPONDENT(S) NO. 1 JUDGMENT ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA ) 1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for learned advocate Mrs. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,28,898/- in 20% of total expenses of Rs. 11,44,492/- comprising of factory expenses, Office and General expenses. 5.6 The respondent thereafter issued the impugned notice dated 19.03.2020 under section 148 of the Act to reopen the assessment of the petitioner for the year under consideration. 5.7 The petitioner in response to the said notice filed return of income on 05.05.2020 and further requested the respondent to supply copy of reasons recorded for reopening. 5.8 The respondent supplied copy of reasons for reopening along with notice dated 04.06.2020 issued under section 143(2) of the Act which reads as under: During the A.Y. 2017-18, the assessee company has claimed deduction u/s. 80IA for generation of the electricity through windmill. On verification of the details furnished by the assessee company, it has under gone the reconstruction and reorganization of the business under the scheem of amalgamation. It is evident from the order dated 23.03.2012, of the Hon ble High Court of Gujarat M/s. FACETS POLISHING WORKS PRIVATE LIMITED amalgamated with the M/s. TIRUPATI ORAGANISERS PRIVATE LIMITED (now known as M/s FACETS GEMS POLISHING WORKS PRIVATE LIMITED). In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by learned advocate for the petitioner that the impugned notice is issued beyond the period of four years and the reason for reopening pertaining to the deduction claimed under section 80IA(4)(iv) was already considered while passing regular assessment order. 7. Learned Senior Advocate Mr. Tushar Hemani for the petitioner submitted that the impugned notice for reopening is beyond the period of four years and there is no failure on the part of the petitioner to fully and truly disclose all the material facts necessary for the assessment of income. 7.1 It was submitted that during the course of regular assessment, claim of deduction of Rs. 76,27,934/- under section 80IA(4)(iv) of the Act is fully supported by the disclosure in the tax audit report and audited annual accounts, Form 10CCB and the return of income which were scrutinized by the Assessing Officer in detail before passing the order under section 143(3) of the Act. Learned Senior Advocate Mr. Hemani referred to various notices issued by the Assessing Officer and reply filed by the petitioner during the regular assessment proceedings to demonstrate that the issue of claim of deduction under section 80IA(4) was duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that provision of sub-sections (12) and (12A) would not be applicable since the eligible undertaking was not transferred during the period when the deduction was already being claimed by the amalgamated company. In support of his submissions, reliance was placed on the decision of this Court in case of Jivraj Tea Ltd vs. Assistant Commissioner of Income Tax reported in 2013 34 taxmann.com 199 Guj. 8. On the other hand, learned Senior Standing Counsel Mr. Sanghani for the respondent submitted that the petitioner has claimed the deduction under section 80IA(4)(iv) contrary to the provisions of the Act as such deduction was not available to the petitioner because it was noticed by the Assessing Officer during the assessment proceedings for A.Y. 2017-18 that one Windmill Enterprise i.e. power generating unit of the petitioner which was claimed as eligible unit for deduction under section 80IA(4)(iv) was not originally owned by the petitioner-company but the same was undertaking of the amalgamated company M/s. Facet Polishing Works Pvt Limited which is transferred under the scheme of amalgamation with the company earlier named as M/s. Tirupati Organizers Private Limited now known by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or demerger had not taken place. It was submitted that main intention in providing benefit under section 80IA was to provide incentive to those who had taken initial investment and entrepreneur risk and considering such intention, there was no justification for passing on the benefit to a company who had not taken such risk and had only acquired the eligible undertaking later on when the risk had reduced. It was further submitted that sub-section (12A) of section 80IA of the Act had inserted w.e.f. 01.04.2008 so as to provide that provision of sub-section (12) shall not apply to any undertaking or enterprise which is transferred in the scheme of amalgamation or demerger after 31.03.2007. 8.6 It was therefore submitted that in the return of income filed for the Assessment Year 2014-15, the petitioner has failed to make full and true disclosure by wrongly availing the claim of Rs. 76,27,934/- as deduction under section 80IA of the Act. 9. Having heard learned advocates for the respective parties and having considered the facts of the case, it appears that the observation of the Assessing Officer in the reasons recorded are based on the assessment records comprising Profit and Los ..... X X X X Extracts X X X X X X X X Extracts X X X X
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