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2018 (10) TMI 1267 - HC - Income TaxReopening of assessment - no information with regard to DEPB or Duty Draw Back was furnished by the appellant - deduction under Section 10BA - Held that:- We find that the questionnaire issued to the assessee during the assessment proceedings and the assessment order dated 19.11.2010 passed on that basis make it clear that no information with regard to DEPB or Duty Draw Back was furnished by the appellant. There was indeed no adjudication on that aspect of the matter and, therefore, the concurrent view taken by the lower authorities cannot be faulted with. The appellant failed to show from the record whether the Assessing Officer has indeed considered the issue of allowability of deduction under Section 10BA of the Act in respect of Duty Draw Back. Had this issued been actually considered, some query would certainly have been raised on this aspect and reply thereto, if any, would also have been submitted by the appellant. Obviously, the Assessing Officer did not apply his mind to this aspect of the matter. Since the appellant failed to point out that the Assessing Officer formed any opinion on this issue, it cannot be held that initiation of re-assessment proceedings under Section 148 of the Act was based on mere change of opinion. It is only when the Assessing Officer later realised that the deduction under Section 10BA of the Act was not allowable in respect to Duty Draw Back and that exemption of ₹ 15,88,601/- was allowed on account of this mistake, he initiated re-assessment proceedings by recourse to Section 148 of the Act vide notice dated 29.03.2012. - decided in favour of revenue. Deduction u/s 10BA - DEPB and DDB received by appellant - CIT(A) relying upon the judgment of the Supreme Court in Liberty India [2009 (8) TMI 63 - SUPREME COURT] held that Duty Draw Back and other such incentives are not profits derived from the eligible business and accordingly exemption under Section 10BA of the Act cannot be allowed - Held that:- In CIT Jaipur Vs. Suresh Kumar Bajoria [2017 (5) TMI 1492 - RAJASTHAN HIGH COURT] remanded the matter back to the Assessing Officer to reconsider the entire material all over again. Thus Impugned judgments are set aside to that extent and the matter is remanded back to the Assessing Officer to decide the same afresh in accordance with law, however, leaving it open for both the parties to raise all the contentions before the Assessing Officer. We make it clear that we have not expressed any opinion so far as the second substantial question of law is concerned.
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