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2016 (7) TMI 755 - HC - Income TaxReopening of assessment - quantum of expenses to be deducted from the gross dividend for allowing the benefit of Section 80M - Held that:- From the reading of the reasons as a whole, it is very clear that the Assessing Officer has not alleged any failure on the part of the petitioners to disclose truly and fully all material facts necessary for assessment. In the above view and bearing in mind that the assessments were finalized for each of the five years under Section 143(3) of the Act, the proviso to Section 147 of the Act would be applicable. Therefore, in the absence of any allegations of failure on the part of the petitioner-assessee to disclose truly and fully all material facts necessary for the assessment, the impugned Notices are without jurisdiction. Further, our attention was invited to the assessment orders passed in regular assessment proceedings in each of the five assessment years. We find that each of them discusses the issue raised in the reasons in support of the impugned notices namely, the quantum of expenses to be deducted from the gross dividend for allowing the benefit of Section 80M of the Act. It was on consideration of this very issue that the Assessing Officer in all the five assessment years held that 1% of the gross dividend received would be deductible for the purposes of claiming benefit under Section 80M of the Act. Therefore, in view of the aforesaid fact, it is very clear that the impugned Notices seeking to reopen the assessment is only on account of change of opinion. Thus, the impugned notices are without jurisdiction on the above count also. The issue of quantum of expenses to be reduced from gross dividend for allowing deduction under Section 80M of the Act was also a subject matter of consideration in appeal for all five assessment years by the CIT(A), who partly allowed the petitioners' appeal. Thus, issuing of the impugned notices cannot also be sustained as it would amount to the Assessing Officer seeking to review the order of the Appellate Authority on the very issue which was considered by the Appellate Authority. Thus, on the above ground also the five impugned notices are without jurisdiction - Decided in favour of assessee.
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