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2011 (2) TMI 978 - AT - Income TaxReopening Assessment u/s 147 - Deduction u/s 80HHC denied - whether the deduction u/s 80HHC can be computed with reference to 90 per cent of the export incentives ignoring the trading loss - Held that:- The show-cause notice issued by the Assessing Officer and the replies given by the assessee vide letter dated 27-1-2003, all the facts are placed before the Assessing Officer and detailed explanation was given why negative profits of the business are ignored and deduction available to the extent of incentives - The Assessing Officer also discussed the same issue in the assessment order passed on 27-2-2003 and vide para 4.3 considered the decision of IPCA Laboratories Ltd. (2001 (7) TMI 99 - BOMBAY High Court) and set off the trading losses to the incentives - This indicates application of mind by the Assessing Officer at the time of original assessment and subsequent belief by the Assessing Officer can only be considered as change of opinion on the same set of facts. The Hon'ble Bombay High Court in the case of Asteroids Trading & Investments (P.) Ltd. (2008 (7) TMI 238 - BOMBAY HIGH COURT) considered the issue on similar facts and held that power conferred under section 147 cannot be used like the power of review to reopen the assessment under section 147 of the Act - the reassessment proceedings are considered bad in law and the Assessing Officer has no jurisdiction to reopen under section 147 - Accordingly the orders of the Assessing Officer and CIT(A) are set aside - Decided in favour of assessee.
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