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TMI Blog2024 (10) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... by Alpha Pharma Roorkee (undertaking). Since, the undertaking availing deduction u/s. 80IC was merged with the assessee company w.e.f. 01.10.2014, as per the provision of sub-section 12 of Section 80IA r.w.s. 12A of the Act, the undertaking is not eligible for tax benefit u/s.80IC of the Act. Thus no reason to believe that income of the assesse has escaped assessment for A.Y. 2016-17 within the meaning of section 147 of the I.T. Act, because of the non-disclosure of fully and truly all the material facts necessary for assessment for A.Y.2016-17. Assessee at the original assessment stage disclosed fully and truly all material facts relevant for assessment. The details in relation to deduction claimed under Section 80IC were called for and responded by the assessee. Therefore, the assesse s contention of reopening based on mere change of opinion merits acceptance. In this case also it is not a case where the details called for in relation to deduction under Section 80IC of the Act were not submitted by the assessee. The query raised and responded shows that the deduction claimed by the assessee was fully explained and thereafter the order of assessment under Section 143 (3) was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 (1) of the Act and called for various details including details in relation to deduction under section 80IC of the Act. 5.2. The assessee responded to said notice by furnishing details including details in relation to deduction under Section 80IC of Act and thereafter order of assessment dated 22.12.2018 under Section 143 (3) of the Act was framed. Subsequently, notice under Section 148 of the Act dated 28.03.2021 was issued seeking to reopen the Assessment for the Year 2016-17. In response thereto, the assessee filed its return of income and requested for reasons recorded. Upon receipt of reasons, the assessee raised objections on 14.08.2021. In objections various details were supplied with the submission that at the original stage, the issue of deduction under Section 80 IC has been gone into by the Assessing Officer, despite that the order rejecting objections dated 23.03.2022 was passed aggrieved by which this petition is filed. During pendency of this petition, Assessment Order dated 31.03.2022 under Section 147 read with Section 144B was passed and demand was raised. 6. Learned Senior Advocate Mr. Tushar Hemani for the petitioner-assessee submitted that the notice issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order, it is evident that the issue in relation to deduction under Section 80IC of the Act has not been referred to and therefore the contention of the assessee on change of opinion is not correct. 7.2. On merits learned Senior Standing Counsel Mr. Karan Sanghani submitted that as per provision of Subsection (12) and (12A) of Section 80IA of the Act, the assesse s undertaking is not eligible for deduction under Section 80IC of the Act. These facts were noticed subsequently by Assessing Officer that income to the extent of Rs. 1,21,59,856/- has escaped assessment on account of no full and true disclosure by the assessee and therefore notice under section 148 of the Act was rightly issued. Further, the procedure contemplated under the Act has been followed and there being no merit in the case, no interference is called for. 8. Considering the submissions and upon revisitation of the facts, it is noticed that the return filed by the assessee for the Assessment Year 2016-17 was selected for scrutiny and thereafter the assessment order under Section 143 (3) dated 24.12.2018 was passed. Prior to assessment order under Section 143 (3), a notice under Section 142 (1) dated 22.11.2018 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 April, 1989, power to re-open is much wider, However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But reassessment has to be based on fulfillment of certain pre-condition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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