TMI Blog2010 (8) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... - Tax Case (Appeal) No. 706 of 2010 - - - Dated:- 3-8-2010 - IBRAHIM KALIFULLA F. M., SUNDRESH M. M., JJ. JUDGMENT M. M. Sundresh J.- The Revenue has come on appeal challenging the order of the Tribunal passed in I. T. A. No. 2486 of 2007, by raising the following substantial question of law : "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the second reassessment proceedings were not validly initiated and thereby quashing the reassessment proceedings ?" The facts in brief : 2. For the assessment year 1999-2000, the assessee filed return showing "nil" income by claiming deduction under section 80HHC of the Income-tax Act, 1961. The assessee's return was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rian Joseph, learned standing counsel for the Revenue submitted that the proceedings have been initiated for the second time under section 147 of the Act, only based upon the judgment of the apex court, wherein the hon'ble Supreme Court was pleased to hold that the deduction under section 80HHC could be allowed only if there was positive profits from export operations. The learned counsel also made reliance upon the decision rendered by this court in Asst. CIT v. Apollo Hospitals Enterprises Ltd. [2008] 300 ITR 167. The learned counsel therefore submitted that inasmuch as the order passed in the earlier reassessment proceedings having been done by taking into consideration of the negative business profits, the order passed by the Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the view that in a case where the material facts were fully disclosed and the assessment was completed allowing deduction under section 80HHC on export incentive, such an assessment cannot be reopened based upon a subsequent decision of the Supreme Court, since it merely would amount to a change of opinion. We are in respectful agreement with the judgment of the Gujarat High Court on the proposition of law laid down therein. 6. Regarding the other contentions, it is not in dispute that the first reassessment was done by the Assessing Officer under section 147 of the Act on March 18, 2003. Thereafter, notice for reopening the assessment for the second time was issued to the assessee on August 4, 2005. The assessment in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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