2013 (6) TMI 481

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....inal assessment in the case of assessee was completed under section 143(3) on 21.03.2006 on a income of Rs. 1,32,03,670/-, subsequently notice was issued under section 148 by recording the following reasons:- "The assessment was completed and order u/s 143(3) of the Act was passed on 30.11.2005. After going through the records, it is revealed that the calculation of deduction admissible u/s 80HHE of the IT Act, the assessee adopted the total turnover of the business as Rs. 1,63,58,001/- whereas the P &L account shows that the total turnover as Rs. 14,54,12,662/- (Sales gross + Services_. Adoption of incorrect total turnover resulted in excess allowance of deduction u/s 80HHE to the tune of Rs. 42,17,556/- entailing short levy of tax of Rs.....

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....ied on the decision of the Hon'ble Delhi High Court in the case of CIT vs. Kelvinator, (2002) 256 ITR 1 and on the decision of Delhi High Court in the case of Haryana Acrylic Manufacturing Company Vs. The Commissioner of Income Tax IV and Anr. (2009) 308 ITR 38 by observing as under:- "In view of the factual and legal position discussed above the reopening was not possible in the case of appellant after expiry of four years, in view of the proviso to section 147 of the IT Act. It is also held that reopening is based on change of opinion of the incumbent ASSESSING OFFICER, which is not permissible in law. Therefore the reopening in the case of appellant is declared invalid in the eyes of law and same is quashed. In my decision vide ground ....

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....and until and unless the condition of proviso to section 147 of the IT Act is complied with and the assessment could not be reopened beyond four years. Reliance was also placed on the decision of Bombay High Court in the case of Hindustan Level Ltd. Vs. Pandey (V. K.), Joint CIT (2001) 251 ITR 209 (Bombay). It was pointed out that similar view have been taken by Bombay High Court as has been taken by Delhi High Court. Reliance was also placed on the decision of Hon'ble Delhi High Court in the case of Rose Serviced Apartments Pvt. Ltd. & Anr Vs. DCIT in writ petition (Civil) No. 5988/2008 order dated 25.01.2011 in which also similar reasons were recorded. 6. We asked the Ld. AR to show the specific finding given by the ld. CIT(A) in his ord....