TMI Blog2013 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 8-4-2013 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. For the Appellant : B.S. Soparkar. For the Respondent : Sudhir M. Mehta. ORDER:- PER : Akil Kureshi Heard learned counsel for the parties for final disposal of the petition. Petitioner has challenged a notice dated 15.03.2012 as at Annexure A to the petition under Section 148 of the Income Tax Act, 1961 ('the Act' for short). Under such notice, the Assessing Officer seeks to reopen assessment of the petitioner for the assessment year 2006-07 which was framed after scrutiny. At the request of the petitioner, the Assessing Officer also supplied reasons recorded for issuing such notice. Such reasons read as under: "In the assessee's case, the wind mill was commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein it was held that profit from eligible business for purpose of determination of quantum of deduction u/s. 80IA has to be computed after deduction of the notional brought forward losses and depreciation of eligible business even though they have been allowed to be set off against other income in earlier years. As the assessee is not eligible for deduction u/s. 80IA in the subsequent year the assessee cannot be eligible in the preceding year also. Thus, there is an escapement of income to the extent of deduction claimed u/s. 80IA of Rs. 1,41,93,759/-?" 2. Petitioner thereupon raised objections to the notice for reopening under a communication dated 29.10.2012. Such objections were, however, rejected by an order dated 28.01.2013. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is not eligible for deduction under Section 80IA of the Act and, accordingly, such deduction was withdrawn in view of the decision of the Special Bench of the Tribunal in case of Asstt.CIT v. Goldmine Shares and Finance (P.) Ltd. [2008] 113 ITD 209 (Ahd.) (SB). 4. Learned counsel for the petitioner, taking us through the record, raised following contentions: 1. That there was no failure on part of the assessee to disclose truly and fully all material facts necessary for the assessment. The notice for reopening having been issued beyond the period of 4 years from the end of relevant assessment year, this issue would be crucial. 2. In the scrutiny assessment, the Assessing Officer had examined the claim of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued. We must decided this issue bearing in mind the fact that such notice has been issued beyond the period of four years from the end of relevant assessment year. Our prime consideration, therefore, would be whether, before the Assessing Officer could assume jurisdiction, important requirement of proviso to Section 147 of the Act namely the income chargeable to tax had escaped assessment due to the failure of the assessee to disclose truly and fully all material facts necessary for assessment, could be stated to have been satisfied. 8. In this context, we may recall that no such allegations have been made in the reasons recorded by the Assessing Officer. Secondly, the reasons itself record that "on verification of the case recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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