TMI Blog2012 (7) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... o disclose - nothing whatsoever on record to indicate that there was any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment - in favour of assessee. - Special Civil Application No.12513 of 2009, Special Civil Application No.12542 of 2009 - - - Dated:- 2-7-2012 - Akil Kureshi and Harsha Devani, JJ. For Appellant: Mr Manish J Shah : 1 For Respondent: Rule Served : 1 Ms Paurami B Sheth : 2 JUDGEMENT Per: Harsha Devani: 1. Since common questions of law and fact are involved in both these petitions and parties are also common, the same were taken up for hearing together and are disposed of by this common judgement. 2. The subject matter of challenge in these p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80 IB of the Act without considering unabsorbed loss of Rs. 13,28,253/- and depreciation of Rs. 6,71,839/- of assessment year 2001-02. Pursuant to the said notice, assessment came to be famed under section 147 read with section 143(3) of the Act on 28.02.2006, whereby the amount allowed by way of deduction under section 80 IB of the Act came to be reduced. The said order came to be challenged by the petitioner before the Commissioner (Appeals). 4. Subsequently, by the impugned notice dated 12.09.2008, the assessment for the assessment year 2002-03 is once again sought to be reopened. Upon receipt of the notice under section 148 of the Act, the petitioner requested the Assessing Officer to furnish a copy of the reasons recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that gross income from interest and rebate/discount was not an income derived from industrial undertaking and was not eligible for deduction under section 80 IB of the Act. Placing reliance upon the decision of the Supreme Court in the case of Indo-Aden Salt Manufacturing and Trading Co. (P) Ltd. Vs. Commissioner of Income Tax, 159 ITR 624 (SC) , it was observed that even if the assessee had supplied details but if it had not disclosed true facts which the ITO could have been found by further probing, the reopening of assessment was valid. Being aggrieved the petitioner has presented the present petition. 5. The facts of Special Civil Application No. 12542 of 2009 are that the petitioner filed its return of income for assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible for deduction u/s. 80 IB of the I.T. Act 1961. The same was not considered at the time of assessment u/s. 143 (3) of the I.T. Act 1961 passed on 31.03.2006. By not doing so the excess deduction of Rs. 41,05,435/- was allowed to the assessee u/s. 80 IB of the I.T. Act 1961. In view of the reasons, I am satisfied that the income chargeable to tax exceeding to Rs. 1,00,000/- has escaped assessment in the hands of the assessee. Therefore, it is a fit case for reopening the assessment. Pursuant to the same, the petitioner filed his objection on 28.09.2009. By an order dated 10.11.2009 objections came to be rejected. 6. The main plank of the submissions advanced by Mr. J. P Shah, learned advocate for the petitioner, while assailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 147 of the Act is without authority of law. 7. On the other hand, Ms. Paurami Sheth, learned senior standing counsel for the respondent opposed the petition by placing reliance upon the reasons recorded for reopening of assessment as well as the order passed by the Assessing Officer while rejecting the objections raised by the petitioner. It was submitted that the petitioner had claimed deduction under section 80 IB of the Act in respect of other income for which it was not entitled to such deduction. According to the learned counsel by making such a claim the petitioner had failed to disclose fully and truly all material facts necessary for its assessment and as such, the reopening beyond a period of four years from the end of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment years that it was found that the petitioner had other income which was not eligible for deduction under section 80 IB of the Act, and that the same had not been considered at the time of assessment under section 143(3) read with Section 147 of the Act and that by not doing so excess deduction had been allowed to the assessee under the said section. Thus, it is apparent that the Assessing Officer has not come across any new material, which the petitioner had failed to disclose. It is on the basis of the very same returns filed by the petitioner, that the Assessing Officer has come to the conclusion that deduction under section 80IB had been wrongly granted to it. Evidently even according to the Assessing Officer, his predecessor had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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