TMI Blog2013 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148 – Decided against the Revenue. - TAX APPEAL NOS. 75 TO 78 OF 2012 - - - Dated:- 14-2-2013 - V.M. KANADE AND U.V. Bakre, JJ. For the Appellant :Ms. Asha Dessai. For the Respondent : Nishant Thakkar and Ms. Gauri Dalvi. ORDER:- All these appeals can be disposed of by a common order, since the issue involved in Tax Appeals No. 77 and 78 of 2012 is common and also the issue involved in Tax Appeals No.75 and 76 of 2012 is the same, so also the parties are same. 2. In Tax Appeal Nos. 77/2012 and 78/2012, the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for two years, the said claim was accepted. However, for the AY 2007-08, according to the Revenue, on scrutiny, it was noticed by the Assessing Officer that this was only expansion of the existing unit for increasing the production of tablets and not a new unit and accordingly, the claim under Section 80IB was disallowed for the AY 2007-08 and for the AY 2008-09 also it was disallowed under Section 143(3) on the same ground. Thereafter, for the reasons disclosed in AY 2007-08, the assessment for the AY 2005-06 was reopened by issuing notice under Section 148 and reopened proceedings were completed under Section 143(3), read with Section 148 on 20.12.2010, disallowing the assessee's claim under Section 80IB. Similarly, for the AY 2006-07 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the appeal of the respondent and this order was confirmed by the Hon'ble ITAT. Both these orders are challenged by filing Tax Appeal No.75/12. For the AY 2008-09 orders passed by the CIT (Appeals) and the ITAT which were passed in favour of the respondent, Assistant Commissioner of Income Tax has filed Tax Appeal No. 76/2012. 4. So far as Tax Appeals No.77/2012 and 78/2012 are concerned, in both these appeals, the ITAT has held that the issuance of notice after reopening of the case was mandatory and this order is under challenge. It is contended that the said order is contrary to the provisions of Sections 292BB which was introduced by the Finance Act 2008 w.e.f. 01.04.2008, in which it is stated that in a case where an assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148. 6. Under these circumstances, no case is made out for interfering with the Tax Appeals No.77/2012 and 78/2012 since no substantial question of law is raised in both the appeals. 7. So far as Tax Appeals No.75/2012 and 76/2012 are concerned, the CIT (Appeals) and the Hon'ble ITAT have recorded concurrent finding of fact that from the material which was on record, the assessee had established that it was entitled to claim the deduction under Section 80IB of the Act and as such, it will not be possible to interfere with the finding of fact recorded by both the Authorities below ..... X X X X Extracts X X X X X X X X Extracts X X X X
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