TMI Blog2018 (9) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... s claim of deduction under section 10A of the Act, with respect to its different Units. Thus, it was after a detailed scrutiny, the Assessing Officer had originally accepted the petitioner’s claim for deduction under section 10A of the Act. Not only that he raised multiple queries, such queries were replied to by the petitioner. In the order of assessment also, he had given brief reasons for accepting the petitioner’s claim. It would now, therefore, not be open for the Assessing Officer to reopen such assessment on the principal claim of the petitioner for deduction on the ground that some other elements or aspects of the claim were not examined. This would clearly be a case of change of opinion. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 12770 of 2017 - - - Dated:- 18-9-2018 - MR AKIL KURESHI AND MR B. N. KARIA, JJ. For The Petitioner : Mr B S Soparkar (6851) For The Respondent : Mrs Mauna M Bhatt (174) ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1.00. The petitioner has challenged an order dated 09/03/2017 passed by the Principal Commissioner of Income Tax under section 264 of the Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 264 of the Act, such revision came to dismissed by the impugned order, against which this petition is filed. 3.00. Prime challenge of the petitioner in the present petition is with respect to the very reopening of the assessment. According to the petitioner, the notice of reopening of reassessment was invalid. Counsel for the petitioner submitted that the entire claim of deduction under section 10A of the Act was throughly examined by the Assessing Officer during the original scrutiny assessment. The notice of reopening, which is based on his doubt about validity of such claim can, at the best, be said to be a change of opinion. He pointed out that under similar circumstances, the petitioner s writ petition challenging reassessment for the Assessment Year 2007-08 came to be allowed by this Court in the above referred judgment dated 04/09/2017. He further pointed out that the Assessing Officer has selectively issued notices for reassessment for the AY 2007-08 and in the present case, for the Assessment Year 2010-11, though the facts are similar in relation to and in-between these assessment years also. 4.00. Counsel for the Department on other hand submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinuous period of deduction starting from year of commencement of production. It was, however, noticed that income of ₹ 3,42,92,151/- and ₹ 1,53,47,631/- respectively were claimed as exempted income u/s 10A(2)(i)(b) and same was allowed by the AO. Moreover, the assessee does not fulfill the criteria for claiming deduction u/s.10B also in view of Honourable High Court of Delhi decision in the case of Commissioner of Income Tax V/s. Regency Creation Ltd. IT Appeal No.69 of 2008, 783 of 2009 1239 of 2011. Thus, failure to disallow the claim of exemption u/s.10A(2)(i)(b) has resulted in the income chargeable to tax not being brought to tax in terms of explanation 2(i) and (ii) of Sec.147 of the Act which reads as under : ( i) the income chargeable to tax has being under assessed and ( ii) Such income has been made the subject of excessive relief under this Act since the Assessee was not eligible for deduction u/s 10B of the Act. Hence, I have reason to believe that the income chargeable to tax to the extent of at least ₹ 2,04,00,460/- has escaped assessment within the meaning of Sect.147 of the I.T. Act for the A.Y. 2010- 11. 3. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not midway changed claim of deduction from section 10B to 10A of the Act, both being entirely separate and distinct provisions. 5.03. In this context, the contention of Mr. Soparkar, learned advocate for the petitioner was that the petitioner is 100% EOU and is also engaged in software development. The petitioner's unit is, therefore, entitled to deduction - both under Sections 10B or 10A of the Act. His further stand is that the requirement that a unit must be situated within the Software Development Park, is not one of the essential conditions of deduction under section 10A of the Act. We are, however, not required to comment finally on these aspects of the matter, since in our opinion, reopening was impermissible and bad in law on the other grounds. 5.04. In this context, we may recall that the return filed by the petitioner was scrutinized before the order of assessment was passed. During such scrutiny assessment, detailed correspondence took place between the petitioner and the Assessing Officer. The petitioner s principal claim of deduction under section 10A came up for specific attention of the Assessing Officer. From the petitioner s letter written during the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 4. All the units have necessary custom bonding notified area and document of the same submitted earlier. 5. The revenue department already verified and approved the claim under the relevant section 10A and 10B of the Act in all the previous preceding. 6. It is further noted that the Hon ble Apex Court in the case of Bajaj Tempo Ltd. Vs. CIT (1992) 104 CTR (SC) 116 : (1992) 196 ITR 188 (SC) has held that the provision for incentive for growth and development should be interpreted liberally. It should be construed so as to advance objective and not frustrate it. Similar view has been taken in the case of CIT V/s Gwalior Rayon Silk Mtg. Co. Ltd. (1992) 104 CTR (SC) 243 : (1992) 196 ITR 149 SC. In this case it has been held that the provision in the taxing statute for deduction exemption or relief should be construed reasonably. It is trite law that the expression used in taxing statute would ordinarily be understood in the sense in which it is harmonious with the object of the statute to effectuate the legislative intention. It is equally settled law that if the language is plain and unambiguous, one can only look fairly at the language use and interpret to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the respective rules and guidelines issued by the Government of India while introducing the STP/SEZ Scheme to promote industries development in the country. Ia. Regarding of Units at Ahmedabad establishment and registered under the Software Technology Park of India: Software Technology Parks of India (STPI) was established and registered as an autonomous society on 6th June, 1991 under the Society Registration Act, 1860, under the Development of Information Technology, Ministry of Communication and Information Technology, Government of India. As per the guidelines issued the Software Technology Park of India in respect of establishment of a unit in the STPI zone are as under: xxx xxx xxx 5.05. In a further letter which is found at page 66 along with the petition, during such assessment proceedings, the petitioner had made further submissions with respect to such claim, which are as under :- 1. Regarding 50% claim u/s 10A for SEZ Unit : Regarding Unit established in S3Z, Cochin covered u/s 10A (1A). As submit earlier reply w.r.t. for claiming deduction under section10A (1A) in respect of our Kakkanad, Cochin Unit. The commercial prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brief reasons for accepting the petitioner s claim. 5.08. It would now, therefore, not be open for the Assessing Officer to reopen such assessment on the principal claim of the petitioner for deduction on the ground that some other elements or aspects of the claim were not examined. This would clearly be a case of change of opinion. As held by the Supreme Court in the case of CIT Versus Kelvinator of India Ltd. reported in [2010] 320 ITR 561 (SC), even post 01/04/1989 Amendment in section 147 of the Act, concept of change of opinion would be germane. 5.09. Under somewhat similar circumstances, in the case of the petitioner for Assessment Year 2007-08 in Special Civil Application No. 12767 of 2017, by a judgment dated 4/9/2017, we had quashed the reassessment, making the following observations :- 9. In the present petition, the petitioner having participated in the assessment proceedings and thereafter having challenged the order of assessment before the Commissioner in revision petition under section 264 of the Act, has filed the present petition. Nevertheless, the central issue is with respect to the validity of the reopening of the assessment by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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