9911796707
TMI Blog2012 (7) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, a public limited company, filed its return of income on 30th November 2000 declaring an income of Rs.69,55,240/. In the statement of income filed along with the return of income as also in the report in Form 10CCAC, the petitioner stated the amount of deduction claimed under section 80HHC of the Act along with the working thereof. The assessment came to be framed under section 143(3) of the Act on 28th March 2003, wherein, while calculating the deduction under section 80HHC of the Act the Assessing Officer did not grant deduction under section 80HHC of the Act on the income from Duty Entitlement Pass Book licences (hereinafter referred to as "DEPB licences"). The assessee carried the matter in appeal before the Commissioner (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded, it was pointed out that the sole basis for reopening the assessment is a subsequent amendment of section 80HHC of the Act which has been given retrospective effect. According to the Assessing Officer, the petitioner has failed to fulfill the conditions laid down by the amended provisions of section 80HHC and as such, there is failure on his part to disclose fully and truly all material facts. It was submitted that at the relevant time when the return came to be filed, the amended provision was not in existence, under the circumstances, the petitioner could in no manner have predicted that subsequently the legislature would bring about such an amendment and have filed the return accordingly. Under the circumstances, by not stretch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y filed by the respondent and the order disposing of the objections. Reference was made to the order disposing of the objections wherein the respondent has stated that the petitioner had failed to disclose fully and truly all material facts as per the amended provisions in section 80HHC of the Act. It was, accordingly, submitted that the assumption of jurisdiction on the part of the Assessing Officer is legal and valid and there is no warrant for interference by this Court. 6. From the facts noted hereinabove, it is apparent that the impugned notice under section 148 of the Act has been issued after the expiry of a period of four years from the end of the relevant assessment year in a case where earlier an assessment had been framed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be included as part of deduction, if the assessee fails to prove that the rate of DEPB/DFRC was less than that of Duty Draw back available to the assessee. Since there is nothing on record which shows that the assessee has fulfilled the conditions laid down by amended provisions of section 80HHC, the case requires to be reopened u/s 147 of the Act for necessary verification. It is pertinent to mention that during the assessment proceeding for A.Y.2003-04 assessee failed to fulfil the provision of amended section 80HHC and addition were made regarding his claim of DEPB. In view of the above facts I have reason to believe that the deduction claimed on export incentive of Rs.49,24,297/has escaped assessment. Hence, Notice u/s. 148 is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the petitioner filed its return of income, the amended provisions of section 80HHC of the Act had not been brought on the statute book. The law requires the assessee to file returns in accordance with the existing laws, and does not and cannot expect the assessee to be a soothsayer anticipating future amendments made in the enactment and file its return accordingly. Under the circumstances, the very basis for reopening, viz. that the assessee had not filed its return according to the amended provisions of section 80HHC is fallacious. 8. The present case would be directly covered by the decision of this Court in the case of Denish Industries Ltd v. I.T.O. (supra). As rightly contended by the learned counsel for the petitioner, at the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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