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2015 (4) TMI 763 - AT - Income TaxReopening of assessment - Certain requisite conditions for claiming deduction not examined by the Ao - Held that:- In the initial assessment when the matter has gone upto the Tribunal on the issue of claim of deduction under section 80- IB(10) of the Act, it cannot be assumed that the issue of requisite conditions for claiming deduction under section 80-IB(10) of the Act was not examined by the appellate authorities including the Tribunal. Therefore, once the appellate authorities have applied their mind to a particular issue, the order of the Assessing Officer will merge with the orders of the appellate authorities. We have also carefully examined the second proviso to section 147 of the Act, according to which the Assessing Officer cannot assess or re-assess such income which is subject matter of appeal, reference or revision. Since the claim of deduction under section 80-IB(10) of the Act is sub-judice before the Hon'ble High Court in the Revenue’s appeal, the reopening of the same issue is not possible. Since the issue of claim of deduction under section 80-IB(10) of the Act was thoroughly examined during the course of initial assessment, the reopening of assessment on the same issue on a plea that certain requisite conditions for claiming deduction under section 80-IB (10) of the Act was not examined by the Assessing Officer, cannot be called to be a valid reopening, as the claim of deduction under section 80-IB(10) of the Act have been thoroughly examined by the Assessing Officer as well as the appellate authorities. We, therefore, find ourselves in agreement with the order of the ld. CIT(A) and we confirm the same. We accordingly confirm the orders of the ld. CIT(A) in both the assessment years i.e. 2005-06 and 2004-05 and dismiss the appeals of the Revenue. - Decided against the revenue.
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