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2021 (12) TMI 263 - BOMBAY HIGH COURTReopening of assessment u/s 147 - Notice after the expiry of period of four years - Admissibility of deduction u/s 80I - HELD THAT:- There is nothing to indicate that there has been no failure on the part of petitioner to disclose fully and truly all material facts during the course of initial assessment proceedings. The reasons are entirely based on the records and documents available with respondents and filed by petitioner. The reasons stated that on perusal of record it indicates that there has been escapement of income. Admittedly, petitioner alongwith its return of income filed its Profit and Loss Account as well as the balance sheet. The computation of income that was filed clearly showed the manner in which the deduction under Section 80 I of the Act was claimed. In the course of the assessment proceedings a specific issue was raised by respondent which was replied to. It was only thereafter that the deduction under Section 80I of the Act was initially allowed by Respondent No.1. The duty of assessee is only to disclose fully and truly all primary facts and the duty ascertaining inferential facts as well as drawing necessary inference is on the Assessing Officer. We are satisfied that petitioner had discharged duty cast upon it and therefore even after there was failure on the part of Respondent No.1 to perform his duty, cannot justify initiation of proceedings under Section 147 of the Act. Also well settled that mere change in opinion by a succeeding Assessing Officer would not justify an exercise of jurisdiction under Section 148 of the Act. In the present case, the assessment for the Assessment Year 1992-93 was completed after due enquiry on 12th January, 1995. From the documents annexed to the petition, it is clear that petitioner’s claim for deduction under Section 80 I of the Act was under consideration by the Assessing Officer who had sought details as to how the same was computed and petitioner had furnished details. Petitioner has clarified that the profits to determine after deduction from the gross operating earnings direct operating expenses, standing expenses, depreciation and interest charged. It was only after considering the same that Respondent No.1 having been satisfied with the correctness of petitioner claim allowed the deduction. In our view, the exercise to reopen a validly framed assessment is merely on the basis of change of opinion by succeeding Assessing Officer and such a mere change of opinion cannot justify the exercise of jurisdiction under Section 148. Deduction under Section 33 AC - The deduction prior to the amendment was available to the extent of the total income provided the amount was credited to reserve account and was utilised for the purchase of a new ship within the specified period. The circular further goes to state that it was noticed that shipping companies had diversified into other activities and are claiming deduction under Section 33AC of the Act even in respect of their income for the activities other than shipping for which there is no justification. Accordingly, it was decided to amend the provisions with effect from 1st April, 1996 to restrict deduction to 50% of the income derived from the business of operation of ships. Therefore, the fact that petitioner has been allowed a deduction under Section 33AC of the Act in respect of income from dividends, long term capital gains and interest, in our view is no ground for initiating proceedings under Section 148 of the Act.
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