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2015 (9) TMI 1048 - HC - Income TaxValidity of reopening of assessment - assessee has not fulfilled the conditions laid down in clause (II) & (III) of subsection (2) of Section 10 A of the Act, the income chargeable to the tax has escaped assessment - contention on behalf of the petitioner that as in the first assessment year i.e. assessment year 2006-07 the assessee was allowed the deduction / exemption under Section 10A and therefore, in the subsequent assessment years the assessee is eligible for deduction / exemption under Section 10A and assessee cannot be denied / doubted in the subsequent years such eligibility under Section 10 A - Held that:- Whether the petitioner has fulfilled the conditions mentioned in clause (II) & (III) of subsection (2) of Section 10 A of the Act is not and/or whether the petitioner is eligible to claim exemption / deduction under Section 10 A of the Act are all question of facts and it is a mixed question of law and facts which are to be considered by the AO while framing the assessment / reassessment and at that time, the assessee shall have ample opportunity to put forward its case. Even while disposing of the objections against reopening, the AO is not required to observe anything in detail on merits of the case and with respect to eligibility of the petitioner assessee regarding deduction / exemption under Section 10 A of the Act. When in the respective assessment years, there were intimation under Section 143(1) of the Act and as such there do not appear to be any application of mind while allowing deduction / exemption under Section 10 A of the Act and mechanically same has been allowed on the basis of claim allowed in the previous year i.e. 2006-07 which has been doubted by the revenue, but the assessment for AY 200607 could not be reopened in view of bar under Section 149 of the Act and after considering the material on record and AO has reason to believe that the income chargeable to tax has escaped assessment as the conditions mentioned in clause (II) & (III) of subsection (2) of Section 10 A of the Act have not been fulfilled and therefore, the petitioner assessee is / was not eligible for deduction/ exemption under Section 10 A of the Act and therefore, income chargeable to tax has escaped assessment, in the facts and circumstances of the case, it cannot be said that the impugned notices under Section 148 of the Act are invalid and / or wholly without jurisdiction and / or assumption of jurisdiction under Section 147 of the Act is illegal. Ample opportunity shall be given to the petitioner to put forward its case with respect to eligibility under Section 10 A of the Act as claimed, during the assessment / reassessment proceedings. Under the circumstances and in the facts and circumstances of the case, we are of the opinion that this is not a fit case to exercise powers under Article 226 of the Constitution of India and to quash and set aside the impugned notices under Section 148 of the Act.
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