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2014 (1) TMI 1750 - AT - Income TaxReopening of assessment - Eligibility for deduction u/s. 80IB - expansion of existing unit - Held that:- From the reply of assessee and the documents on the record shows that Unit-II was in exists as per the order of Commissioner of Income Tax which is on page 40 of the Paper Book No.1. In Assessment Year 2002-03 wherein firstly claim of adjustment of loss of Unit-II was claimed against the profit of Unit-I. We find that Assessment Year 2002-03 is not reopened. Secondly, we find that for Assessment Year 2004-05, the assessment was completed on 08.12.2006 and it is required to be reopened before 31st March 2009, but the assessment was reopened on October 31st, 2011 by issuing the notice on 24.3.2011. Therefore, the assessment is reopened after four years. If the assessment is reopened after four years there are settled law and in this respect section 149 says that no notice u/s.148 be issued for the relevant assessment year, if the four years have lapsed from the end of relevant assessment year unless the case falls under clause-B which says that if the four years but not more than six years have been lapsed from the end of relevant assessment year unless the income chargeable to tax which has been escaped assessment amount or likely to an amount of ₹ 1 lac or more for that year. We find that this contention is satisfied and secondly if the four years but not more than 6 years if the property is located outside in India. In our opinion, this clause has been inserted w.e.f 01.07.2012. Therefore, it is not applicable of this question. Therefore, in our opinion, in this case under consideration for Assessment Year 04-05 the reopen assessment is barred by limitation, therefore, we have no hesitation to hold that the assessment for A.Y. 04-05 is barred by limitation. Similarly for A.Y. 05-06, the assessment was completed on 20.11.2007. The assessment was required to be reopened on or before 31st March 2010 and the assessment was reopened on 24 March, 2011. Therefore, the reopening of the assessment for 04-05 is bad in law as per the Decision of Hon’ble Supreme Court in the case of Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA ]. Therefore, we hold that the notice issued u/s. 148 of the Act for Assessment Year 2004-05 and 2005-06 is barred by limitation. - Decided in favour of assessee Whether the assessee have separate Unit but maintaining the common record of excise duty, sales tax service tax, and having common registration and no separate permission from pollution department having a common electricity connection can be granted deduction u/s. 80IB(4)? - Held that:- Issue stands covered by the decision of the Hon’ble Jurisdictional High Court of Jammu & Kashmir, in the case of Shree Balaji Allows v. CIT and Another (2011 (1) TMI 394 - Jammu and Kashmir High Court ) where it has been held that the Excise Duty Refund is to be treated as ‘capital receipt’ and not liable to be taxed. Respectfully following the said judgment of Hon’ble J & K High Court, refund of excise duty of ₹ 4,66,88,681/- is held to be as ‘capital receipt’. - Decided in favour of assessee
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