TMI Blog2013 (11) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... e original assessment and the reassessment proceedings were regarding wrongful deductions under Section 80I - In the reassessment proceedings the assessee was not entitled to claim deductions under Section 80J - The assessee had not claimed the deductions under Section 80J either in the original stage or in the appellate stage – Decided against assessee. - Income Tax Reference No. - 121 of 1994 - - - Dated:- 16-10-2012 - Hon'ble Sunil Ambwani And Hon'ble Aditya Nath Mittal,JJ. For the Petitioner : S. K. Garg, R. S. Agarwal For the Respondent : C. S. C.,S. Chopra ORDER (Delivered by Hon'ble Aditya Nath Mittal, J.) 1. The following question of law has been referred to this Court for opinion:- "Whether on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that any income had escaped assessment within the meaning of section 148 by the reason of allowance of relief under section 80I, even though the quantum of relief issued in the original assessment was fully covered by the relief as was undisputedly admissible to the assessee under section 80J?" 2. The assessee had claimed relief under Section 80-I for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80I amounting to Rs.4,00,694/- is withdrawn and his request for allowing deduction u/s 80J is rejected." 3. The Commissioner of Income Tax (Appeals), Varanasi agreed with the findings of A.O. and held as under:- "In my opinion, the claim of the assessee u/s 80-J of the I T Act can not be allowed in proceedings u/s 147 of the Act. Hon'ble Allahabad High Court in the case of S S L Sons, Vs. CIT (92 ITR 453 (affirmed by Supreme Court in 169 ITR 510) have held that the entire assessment is not opened on re-assessment. A claim can not be agitated on the assessment being reopened for bringing to tax income which has escaped assessment. In other words the re-assessment proceedings are for bringing to tax what has escaped assessment. It does not allow the assessee to claim fresh reliefs and deductions. Admittedly the claim of the assessee u/s 80-J was not made before Assessing Officer. The claim was made u/s 80-I of the IT Act which is apparently not admissible to the assessee. There is yet another difficulty in granting relief to the assessee. The facts already on records before the assessing officer are not sufficient to decide whether the relief u/s 80-J is admissible to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om newly industrial undertakings was allowable by 7 %. The method of calculation for both the deductions was also different. Therefore, by no stretch of imagination it can be said that assessee had claimed deduction under Section 80-I instead of deduction under Section 80-J. 9. Learned counsel for the assessee has argued that if the quantum of deduction under Section 80-J exceeds the quantum of deduction claimed under Section 80-I, then he stands nowhere but if it is within the limits of deduction claimed under Section 80-J then the assessee should be provided with the relief under Section 80J. We are not concerned in this reference with the quantum of deduction but are mainly concerned with the question of law that whether in a proceedings under Section 148, the deduction under Section 80-J can be claimed for the first time. 10. Learned counsel for the assessee has relied upon Income Tax Officer and another Vs. K.L. Srihari (HUF) and others (2001) 250 ITR 193, Commissioner of Income Tax Vs. Mysore Iron and Steel Limited (1986) 157 ITR 531, Commissioner of Income Tax Vs. Mahalaxmi Sugar Mills Co. Ltd. (1986) 160 ITR 920 (SC), Additional Commissioner of Income Tax Vs. Sheetalaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso his duty to determine the total taxable liability of the assessee. For the said purpose, he must take into account not only the escaped income in respect of which a notice under section 147 has been issued, but also the entire income of that year. The resulting position is that the order of reassessment so made will have to take the place of the original order of assessment. There can be no dichotomy of thought in this matter. That being the necessary consequence of reassessment, the period of limitation, in the present case, should be reckoned from the reassessment order dated March 15, 1973, and not from the earlier rectification order or the original assessment order." 15. In Commissioner of Income Tax Vs. Mahalaxmi Sugar Mills Co. Ltd. (supra), the issue was totally different in which it was held that agreement between India and Pakistan gives relief against double taxation and it does not have any effect on application of Indian Income Tax provisions for determining total world income of the assessee. 16. In Additional Commissioner of Income Tax Vs. Sheetalaya (supra) also the issue was entirely different regarding carry forward of losses in the initial assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words " such income " in section 147 clearly refer to the income which is chargeable to tax but has " escaped assessment " and the Income-tax Officer's jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which have been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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