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2021 (2) TMI 1265 - AT - Income TaxDeduction u/s 10B - scope of approval by the STPI - HELD THAT:- The principle accepted by the revenue for 10 earlier years and 4 subsequent years to the assessment years 2007-08 and 2008-09 was that the entire expenditure is to be allowed against business income and no expenditure is to be allocated to capital gains. Once this principle was accepted and consistency applied and followed, the revenue was bound by it. Unless of course it wanted to change the practice without any change in law or change in facts therein, the basis for the change in practice should have been mentioned either in the assessment order or atleast pointed out to the Tribunal when it passed the impugned order. None of this has happened - all have proceeded on the basis that there is no change in the principle which has been consistency applied for the earlier assessment years and also for the subsequent assessment years. Therefore, the view of the Tribunal in allowing the respondent's appeal on the principle of consistency cannot in the present facts be faulted with, as it is in accord with the case BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT] The assessee is eligible to claim deduction under section 10B of the Act by virtue of being 100 % EOU approved by the STPI. Alternate claim u/s 10A - The assessee contented that condition prescribed under section 10A and 10B of the Act are more or less same and it fulfills all the conditions specified under section 10A of the Act. Thus it should be allowed exemption under section 10A of the Act if not allowed under section 10B of the Act. As such we note that the AO was allowed opportunity vide remand report to verify the fulfillment of the condition specified u/s 10A of the Act. But he restrained himself from making any comment as the same was already verified by him during assessment proceeding. From, this we safely assume that the all condition has been fully met by the assessee. Now the question arise that can the assessee be allowed exemption under section 10A alternatively where it has made claim under other section inadvertently? In our considered view the answer stand positive in view of the fact that the matter has come to various judicial authority wherein it has held that a valid claim of the assessee cannot be deprived merely because, the assessee has not made such claim in return of income filed under section 139. Accordingly we direct the AO to delete the addition made by him. Hence ground of appeal of the Revenue is dismissed. Validity of reopening of assessment u/s 147 - HELD THAT:- The Provisions of Section 147 of the Act, authorizes the AO, if he has "reasons to believe" that the income has escaped assessment, to assess or reassess the income escaped from assessment. Now to form the reasons to believe for the escapement of income, AO first, should be in possession of some /fresh new material which was previously not available with him viz a viz it impacts the aspect, that there is some undisclosed income. We note that all the materials used by the AO in the initiation of reassessment proceedings were available before him during the assessment proceedings and after application of his mind the AO framed the assessment under section 143(3) of the Act vide order dated 01-12-2011. Therefore, the same cannot be used for initiating the proceedings under Section 147 - As such there has to be some new/fresh information on record, which requires a fresh examination. When there is no change in the facts and circumstances of case, the power to re-open u/s. 147/148 cannot be exercised, since at the time of initial assessment a view was formed on the available facts, and the same cannot be re-viewed again. Our case was duly assessed for A.Y. 2009-10 by the ld.A.O and assessment order u/s.143(3) of the Act was passed dated 01.12.2011. Deduction under section 10B was allowed in the original assessment after enquiry. Now the assessee has been served with notice u/s.147 of the Act stating that the deduction u/s 10B was not allowable. The reassessment proceedings initiated on this ground are not valid - Thus, the action u/s.147 of the Act for A.Y. 2009-10 is not legal. - Decided in favour of assessee.
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