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2015 (3) TMI 18 - HC - Income TaxReopening of assessment - assessee's claim of deduction u/s. 80IB is not in order and has resulted in income escaping assessment to the tune of ₹ 2,10,41,019/- - Held that:- Notwithstanding the binding decision of this Court in Asian Paints Ltd. [2007 (1) TMI 159 - BOMBAY High Court ] wherein held that when an objection to reopening of an assessment is disposed of by an order, adverse to the petitioner, no further proceedings for reassessment would be initiated by the Assessing Officer for a period of four weeks from the date of disposal of the objections, the Assessing Officer did not wait for a period of four weeks from the order dated 23 November 2010 and passed the assessment order on 30 November 2010 under Section 143(3) r/w 147 of the Act. The petitioner has made a grievance of the order dated 30 November 2010 being dispatched in the evening of 13 December 2010 after being informed of the writ petition filed. Be that as it may, at this stage we enquired of Mr. Pinto, the learned Counsel for the Revenue as to how does he justify the order dated 30 November 2010 in the face of the decision of this Court in Asian Paints Ltd. (supra). Mr. Pinto very fairly states he is unable to justify the same. Therefore the assessment order dated 30 November 2010 cannot be sustained and the same is hereby quashed and set aside. The consequent demand notice dated 30 November 2010 issued under Section 156 of the Act and the show cause notice dated 30 November 2010 in respect of proposed penalty also cannot be sustained and are hereby quashed and set aside. - Decided in favour of assessee. Challenge to the impugned notice dated 26 March 2010 seeking to reopen the assessment for the Assessment Year 2005-06 - Held that:- We do not disturb the impugned notice dated 26 March 2010 and the order dated 23 November 2010 disposing of the petitioner's objections as second ground in the reasons recorded indicates that the basis of the Assessing Officer for issuing the impugned notice was that the factory license to manufacture the goods inrespect of Unit No.II was issued to the petitioners only on 22 April 2004 i.e. after the end of the previous year relevant to the Assessing Year 2004-05 thus leading to a reasonable belief that the petitioners claim that they had commenced manufacturing in the Unit No.II on 22 March 2004 is not correct. This resulted in a prima facie view that in the absence of manufacture in Unit No.II, during the Assessment Year 2005-06 the benefit of Section 80IB of the Act is not available. However the petitioner's contention that the impugned notice is without jurisdiction is left open to be urged before the Assessing Officer during the reassessment proceedings. It is made clear that the petitioner's submissions in support of the above would be independently considered by the Assessing Officer without in any manner being influenced by any observation herein. - Decided against assessee.
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