Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2020 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (5) TMI 490 - HC - Income TaxReopening of assessment u/s 147 - denial of deduction u/s 80IB - change in opinion of an AO - HELD THAT:- In the impugned communications dated 14.12.2015 and 28.11.2016, the respondent has not denied that the petitioner had truly and fully disclosed all the materials that were required for completing the assessments. The respondent has merely stated that while passing the respective assessment orders, the Assessing Officer did not examine the issue or has formed any opinion and since no opinion was formed in the 1st place question of change of opinion does not arise. To invoke Section 148 for the purpose of proviso to Section 147 there should be a case of failure to truly and fully disclose material facts required for the assessment. In this case, I find that there were deliberations on the very issue as to whether the activity undertaken by the petitioner amounted to manufacture or not before the respective assessment orders were passed for the respective Assessment Years by the respondent’s predecessor. Unable to countenance this stand of the respondent. In any event it would not clothe the Assessing Officer with the power to reopen the completed assessment under Section 148 of the Income Tax Act, 1961 for the purpose of proviso to Section 147 of the Income Tax Act, 1961 if there was truly and fully disclosure for assessment. Central Excise Department has also accepted the fact that the petitioner was engaged in the manufacture of excisable goods which were eligible for exemption under Notification No.56 of 2002-CE dated 14.11.2002 as amended by Notification No.34 of 2008CE dated 10.06.2008. Therefore, a change of opinion based on report of Asst. Commissioner of Income Tax, Circle 1, Jammu under Section 131 of the Income Tax Act, 1961 cannot amount to failure on the part of an assessee to truly and fully disclose information/documents required for the purpose of completing the assessments. Reopening of the assessment to deny the deduction under Section 80IB is therefore without jurisdiction. If in the course of such proceedings the respondent comes to a conclusion that there were other grounds on which assessment can be reopened, the respondent can assess or reassess such income in the light of Explanation 3 to Section 147. Direct the petitioner to participate in the proceedings before the respondent. The respondent is however precluded from disturbing the deductions allowed to the petitioner in the respective assessment orders under Section 80IB. The respondent may however look for such other aspects which may come within the purview of Explanation 3 to Section 147 to demand tax while passing orders. Since the dispute pertains to the Assessment Years 2009-10 and 2010-2011, the respondent is directed to bring a closure to the proceedings within a period of three months from the date of receipt of a copy of this order in the light of the above observations. - Decided in favour of assessee.
|