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TMI Blog2011 (4) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... a International, M/s Anita International (Export Division) and M/s Kathuria Steel Rolling Mills, M/s Anita International (Export Division) is exporting goods. M/s Anita International is engaged in the business of import and resale of teak wood, pharmaceuticals and other items. In M/s Anita International (Export Division), which was engaged in export business, the assessee had shown profit of Rs. 87,78,940/- on the total turnover of Rs. 8,25,00,754/-. In M/s Anita International, the assessee had shown loss of Rs. 5,76,338/- on the total sales of Rs. 19,46,93,668/- and; in M/s Kathuria Steel Rolling Mills, the assessee had declared profit of Rs. 1,23,740/- on hire charges of machinery. The assessee had claimed deduction u/s 80HHC to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before us. 7. We have heard the rival contentions in light of the material produced and precedent relied upon. Ld. counsel of the assessee submitted that the assessment was done after the 4 years of the completion of the assessment year. He claimed that under such circumstances, proviso to section 147 is applicable as there was no failure on the part of the assessee to disclose all the relevant materials. Ld. counsel of the assessee argued that it was only change of opinion, hence, the reopening is not sustainable. 7.1 Ld. Departmental Representative on the other hand relied upon the orders of the authorities below. 8. We have carefully considered the submissions. We can gainfully refer here the provision of section 147 which read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclose fully and truly all material facts necessary for that assessment year. We find that assessee has disclosed all the relevant materials. 10. The reasons recorded for reassessment contains facts and figures which were taken from assessee s account submitted in the original assessment. The reasons for reopening in this case reads as under:- The assessee filed return of income for the AY 2000-01 declaring an income of Rs. 25,77,060/-. Assessment in the case was completed u/s 143(3) on 31.3.2003 at an income of Rs. 14,28,050/-. While going through the assessment records, it is noticed that the assessee carried out business under the names of three proprietorshjp concerns, namely M/s, Anita International, M/s International (Export Division) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48/- allowed while completing the assessment. In view of these facts, I have reasons to believe that income of the assessee by way of excess deduction of Rs. 83,26,348/- allowed to the assessee u/s 80HHC, has escaped assessment to that extent for the A.Y. 2000-01. It is, therefore, necessary to take action u/s 147/148 in this case in the said assessment year. 10.1 A reading of the above makes it amply clear that no fresh material has been relied upon in this case for reopening. The reopening is based upon the materials disclosed by the assessee at the time of the original return. The reasons recorded also do no contain the allegation that there was failure on the part of the assessee to disclose all material facts. Thus, we find that provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly if any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee (a) to make a return under section 139 or in response to a notice under sub-section (1) of section 142 or section 148, or (ii) to disclose fully and truly all material facts necessary for his assessment, for that assessment year. The proviso to section 147 carved out an exception from the main provisions of section 147. If a case were to fall within the proviso, whether or not it was covered under the main provisions of section 147 would not be material. Once the exception carved out by the proviso came into play, the case would fall outside the ambit of section 147. However, no action can be taken under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction u/s 80HHC was also subject matter of Assessing Officer s deliberations as original claim of deduction of Rs. 71,77,341/- was revised by the assessee to Rs. 1,40,68,129/-. The Assessing Officer however, has allowed deduction u/s 80HHC at Rs. 83,26,348/-. The total turnover of the assessee s concerns were already disclosed and the same were in the knowledge of the Assessing Officer at the time of original assessment. Hence, the present case of reopening clearly falls under the realm of change of opinion, which is not permissible under the Act. Moreover, as discussed earlier, there was no failure on the part of the assessee to disclose all the relevant facts fully and truly. 14. Hence, in the background of the aforesaid discussions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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