TMI Blog2014 (3) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year - the conditions stipulated under first proviso to section 147 are not satisfied – thus, the notice deserved to be set aside – Decided in favour of Assessee. - SPECIAL CIVIL APPLICATION NO. 16016 of 2013 - - - Dated:- 3-12-2013 - M.R. SHAH AND R.P.DHOLARIA, JJ. For the Appellant : Hardik V. Vora. For the Respondent : Mrs. Mauna M. Bhatt. JUDGMENT:- PER : M.R. Shah RULE. Ms. Mauna Bhatt, learned advocate waives service of notice of Rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of the respective parties, present petition is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, petitioner - assessee has prayed for an appropriate writ, direction, order to quash and set aside the impugned notice dated 03.12.2012 issued under Section 148 of the Income Tax Act, 1961 [hereinafter referred to as Act ] for the assessment year 2007-08. 3. That the assessee is engaged in the business of manufacturing of Enzyme. For the assessment year 2007-08, the return was filed on 18.10.2007. The said retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act or under section 148 or to disclose fully or truly all material facts necessary for the assessment, it is not open for the AO to reopen the assessment. It is submitted that in the present case the Revenue has failed to point out as to in what manner there was non-disclosure and/or concealment on the part of the assessee. It is submitted that therefore the impugned notice issued under section 148 of the Act to reopen the assessment proceedings for the assessment year after a period of four years of the end of the assessment year is wholly without jurisdiction which deserves to be quashed and set aside. In support of his above submission, Shri Vora, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of this Court in the case of Gujarat Lease Financing Ltd. v. Dy. CIT 36 taxmann.com 359. It is further submitted that from the perusal of the record and reasons, it cannot be said that any new material is found on the basis of which assessment can be reopened. It is submitted that as such the assessment is reopened either on review of original material or on audit objection. It is submitted that as held by the Hon'ble Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is opposed by Shri M.R. Bhatt, learned counsel appearing on behalf of the respondent. An affidavit in reply is filed opposing the present special civil application. 5.1 It is submitted by Shri Bhatt, learned counsel appearing on behalf of the respondent that as per the reasons recorded for reopening the assessment for AY 2007-08, the reopening has been effected on two grounds. The first ground is with regard to incorrect claim made by the petitioner under section 80JJA of the Act. It is submitted that according to the respondent, the petitioner had commenced its business in the previous year 1999-00 relevant to the AY 2000-01 and as per the provisions of Section 80JJA of the Act, the said deduction is admissible for a period of five years from the previous year in which the business is commenced. It is submitted that therefore deduction under the said section was available to the assessee only upto AY 2004-05. It is submitted that the assessee during the year under consideration made an incorrect claim despite it being aware of the aforesaid position. It is submitted that therefore as there is suppression of material facts on the part of the assessee, the reopening is j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for deduction under section 80JJA of the Act in AY 2007-08 as mentioned above. Further, the assessee has also claimed deduction under section 80IB of the Act. The deduction under section 80IB is to be restricted @30% of eligible profit as per the provision. Thus the assessee has wrongly claimed deduction under section 80JJA of the Act worked under: Gross total income Rs. 1,69,65,718/- Less : Other Income Rs. 13,01,119/- Eligible profit of business for Rs.1,56,64,599/- Deduction u/s.80IB of the Act @30% allowing deduction u/s.80IB of the Act Rs. 46,99,380/- Wrong claim of deduction u/s.80JJA of the Act. Rs.1,09,65,219/- 3. In view of the above facts, I have reasons to believe that the assessee has wrongly claimed deduction u/s.80JJA and thereby failed to furnish accurate particulars of its income to the tune of Rs.1,09,65,219/- (-13,01,119-46,99,380) which has escaped assessment to that extent for the assessment year 2008-09 and is required to be reassessed as there was a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim made by the assessee of deduction under section 80JJA of the Act, vide notice dated 24.12.2009 which was replied by the petitioner and thereafter, after due application of mind, the AO had allowed the deductions under section 80JJA of the Act. Even with respect to claim under section 80IB of the Act, the claim was made by the petitioner - assessee and the same has been dealt with and considered by the AO and thereafter, after due application of mind, the AO has allowed the said claims. Under the circumstances, as such it cannot be said that there was any concealment and/or non-disclosure of true and correct facts by the assessee. From the reasons recorded it can be said that the original assessment is sought to be reopened in exercise of powers under section 147/148 of the Act on change of opinion by the AO, which is not permissible more particularly when the original assessment is sought to be reopened after a period of four years from the end of the assessment year. Under the circumstances, the conditions stipulated under first proviso to section 147 are not satisfied and therefore, on the aforesaid ground alone, the impugned notice deserves to be quashed and set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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