TMI Blog2014 (1) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and at the time of passing the said order by the Ld. CIT(A), the Finance Act, 2011 deleting the provisions of clause (vi) of 115JB 2 of the Act was available since the same has been passed on 08.04.2011 - Decided against assessee. - ITA No. 8423/Mum/2011 - - - Dated:- 24-1-2014 - Shri R. C. Sharma And Dr. S. T. M. Pavalan,JJ. For the Appellant : Shri Firoze B. Andhyarujina For the Respondent : Shri R. K. Sahu ORDER Per Dr. S. T. M. Pavalan, JM:- This appeal filed by the assessee is directed against the order of the Ld.CIT(A) -18, Mumbai dated 31.10.2011 for the Assessment Year 2005-06. 2. In this appeal, the assessee has agitated the action of the Ld.CIT(A) in upholding the reassessment proceedings initiated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the order u/s 143(3) of the Act. The assessee has made true and full disclosure of all the facts at the time of original assessment and the same has been taken into consideration by the AO. The AO has applied his mind at the time of the passing of the original order and as such reopening the assessment u/s 147 amounts to mere change of opinion. Further, the Ld.Counsel, by drawing our attention to the chronology of events pertaining to the original assessment proceeding, post assessment enquiry, reassessment proceeding and the first appellate proceedings, in the light of the change of legal position on the issue of allowability of the claim of deduction u/s 80HHC in the context of the decisions of the High Court and the Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 07.05.2009 has held that for the purpose of calculating Book Profit under explanation (1) (iv) to section 115JB clause 2, the export profits to exclude from Book Profit would be export profits allowed as a deduction u/s 80HHC after restricting deduction as per provisions of subsection (1B) of section 80HHC and not export profits calculated as per subsection 3 and 3(A) of section 80HHC before applying restriction contained in subsection (1B) of section 80HHC. Subsequently, the Hon'ble Apex Court passed the order reversing/overruling the decision of the Hon'ble Bombay High Court in the case of Ajanta Pharma Ltd. (327 ITR 305). Thereafter, to overcome the difficulty created by the said decision of the Hon'ble Apex Court, Finance Act 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions support the proposition that on the basis of any recent judicial decision which subsequently comes to the knowledge of the AO, the AO can reopen the assessment based on such 'information'. 5.3 It is the contention of the Ld.Counsel for the assessee that the assessee has drawn the attention of the AO to the decision of the Hon'ble Apex Court overruling the decision of the Bombay High Court in the case Ajanta Pharma vide the written submission filed by the assessee on 14.09.2010 during the reopening/assessment proceedings. However, the reassessment order u/s 143(3) read with 147 of the Act has been passed by the AO vide order dated 13.09.2010 (which possibly may be back dated according to the assessee) without considering the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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