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TMI Blog2012 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. Subsequently, the case was reopened to disallow claim of deduction u/s 80IB, on export profit and re-assessment was completed at net taxable income of Rs.73,96,316/-. Later on, the AO observed that deduction u/s 80HHC of the Act was allowed to the assessee, without reducing deduction amounting to Rs.44,74,078/-, allowed u/s 80IB of the Act, from the eligible profit. Thus, deduction of Rs. 30,22,388/- was allowed in excess. Accordingly, the AO again invoked the provisions of Section 147 r.w. Section 148 of the Act. In response, assessee filed return of income, declaring net taxable income of Rs. 30,16,250/- and submitted before the AO that deduction u/s 80IB attached to an undertaking while the deduction u/s 80HHC attached to an assessee. Assessee further contended before AO that correct figure of excess deduction was Rs.29,81,626/- as against Rs.30,22,388/-, calculated by him. The submission fi led by the assessee did not find favour with the AO. Therefore, the AO, by making reference to sub-section 9 of Section 80IA of the Act, disallowed excess deduction of Rs.29,81,626/-. The CIT(A) , dismissed the appeal of the assessee, considering the re-assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, in the return of income. Therefore, the AO is not competent to issue notice, second time, u/s 148 of the Act, in view of the proviso to Section 147 of the Act. Ld. 'AR' placed reliance on the decision, as reported in the case of CIT V Bear Shoes (India) (P) Ltd. (2010) 45 DTR 181 (Mad). Ld. 'AR' also placed reliance on the decision in the case of CIT V Kelvinator of India (2010) 320 ITR 561 (S.C) and in the case of ICICI Prudential Life Insurance Co. Ltd. V Asstt. CIT & another, 325 ITR 471. Ld. 'AR' further placed reliance, on the decision, in the case of Asstt.CIT V Hycron (India) (2010) 65 DTR 97 (JD-Trib) and on the decision of the Delhi High Court, in the case of CIT V Raj Kumar Mahajan in ITA No. 683/2011 dated 04.01.2012. 4(ii) Ld. 'AR' , in respect of Ground No.2, admitted that the issue is covered against the assessee, by the decision of the jurisdictional High Court, in the case of Friends Casting (P) Ltd. V CIT (2012) 340 ITR 305 (P&H). 5. Ld. 'DR', on the other hand, supported the order of the CIT(A) and contended that it is not a case of change of opinion. Ld. 'DR' placed reliance on the decision in the case of Tilak Raj Bedi V JCIT, 319 ITR 385 (P&H) and the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not taxable on ground that it was a capital receipt- Subsequent rectification on ground that Supreme Court had decided that subsidy received after commencement of production was a revenue receipt-Rectification made only on basis of change of opinion-Not permissible- Income- tax Act,1961, s. 154) .Deva Metal Powders P.Ltd. V Commissioner, Trade Tax (2007) 10 VST 751 (2008) 2 SCC 439 (S.C) and Commissioner of Central Excise Calcutta v. A.S.C.U. Ltd. (2003) 151 ELT 481 (S.C) relied on. 3. ITAT Jodhpur decision in ACIT V Hycron India ,ITA No. 305/Jd/2009 dated 16.11.2011 "Reassessment-Change of opinion-Absence of material or rational belief- When the AO passed the assessment order, there were decisions that deductions under ss. 80HHC and 8Q- IB are to be separately computed-If there is a decision in favour of the assessee then the same is to be applied and thus the AO has taken one of the possible view--Concept of 'change of opinion' must be treated as an in-built test to check the abuse of power-There is no tangible material with the AO for the purpose of initiating the reopening of the assessment-CIT(A) was justified in quashing the reopening of the assessment under s. 148 to reduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial to the Revenue can be revised but the said opt ion was not exercised." 8. The assessee appellant has disclosed al l the material and relevant particulars, within the meaning of the proviso to Section 147 of the Act, in respect of claim u/s 80IA and 80HHC of the Act. The AO invoked the provisions of Section 147 read with Section 148 of the Act, twice and is expected, being quasi-judicial authority, to adjudicate the issue on the basis of relevant material available on record and in accordance with the relevant provisions of the Act. The powers of the AO, cannot be construed as unbridled and plannery for the purpose of invoking the provisions of Section 147 read with Section 148 of the Act. It is also established proposition of law that assessee is not obliged to instruct the AO on questions of law. It is incumbent upon the AO, to be fully aware of the relevant statutory provisions and apply the same to the material facts, truly and fully disclosed by the assessee in the return of income. In the present case, it is undisputed fact that the facts of the case fall under the provisions of Section 147 of the Act. The AO, has invoked the provisions of Section 147 read with pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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