TMI Blog2014 (7) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of the view that the AO materially erred in reopening the issue – there was no reason to interfere with the order of the Tribunal - The appeal is admitted on the remaining two issues as to entitlement of deduction u/s 80IA and allowability of expenses as license fees u/s 37(1) – Decided partly in favour of Revenue. - Tax Appeal No. 1339 of 2010 - - - Dated:- 24-6-2014 - M. R. Shah And K. J. Thaker,JJ. For the Appellant : Mr. Nitin K. Mehta For the Respondent : Mr. Amit M. Panchal ORDER (Per : Honourable Mr. Justice M. R. Shah) 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned ITAT, Ahmedabad(hereinafter referred to as the Tribunal ), Dated : 29.01.2010, in ITA No.13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2006-07, it was not open for the AO to reopen the said issue, i.e. whether the assessee had commenced the business in the year 1996-97 or not?. In Para-6.1 to 6.3 of the impugned order, the learned Tribunal has observed and held as under; 6.1 As pointed out by the ld. AR, we find that as on 31-03-1996 only capital advance of ₹ 1,06,50,000/- shown under the head Fixed Assets was given besides payment of license fee of ₹ 46,34,54,000/-. The company started their commercial operations in Ahmedabad/Gandhinagar only on 21-01-1997 and accordingly, sales and service Revenue was reflected for the first time in the balance sheet as on 31-03-1997 to the extent of ₹ 4,32,28,337/- The list of cellular providers as on 31-03-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment proceedings for the AY 1996-97, Instead, the findings recorded in the AY 1996-97 are being reconsidered in the year under consideration, This approach of the AO is against the settled position in law, As observed by the Hon ble Apex Court in their aforesaid decision, AO can reopen a question previously decided only if fresh facts come to light or if the earlier decision was rendered without taking into consideration material evidence, etc. No such material has been placed before us on behalf of the Revenue that certain fresh facts came to light or that relevant material evidence was ignored at that time in the proceedings for the AY 1996-97. In these circumstances we find merit in the undisputed contentions of the Ld. AR t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even for the year 1982-83 in respect of a number of appeals filed by other co-owners as also by some of the petitioners. In our opinion, there was no good and justifiable cause to take a different view when some appeals came before a different officer without there being any change in the factual position and when the earlier decision was not challenged by the Department. 6.3 The aforesaid decision has been followed by the Hon ble jurisdictional High Court in their subsequent decision in Lalludas Children Trust Vs, CIT 251 ITR 50(Guj). Similar view has been taken in the several cases including in DIT Vs Lovely Bal Shikha Parishad 266 ITR 349(Del) DIT Vs Guru Nanak Vidhya Bhandar Trust, 272 ITR 279(DeI.), CIT Vs. Leader Valves Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , allow ground nos. 1 to 1.3 in the appeal of the assessee. 4. We are in complete agreement with the view taken by the learned Tribunal that the AO materially erred in reopening the said issue. Under the circumstances, we see no reason to interfere with the impugned order and judgment passed by the Tribunal so far as the proposed question No.2[A] is concerned. Under the circumstances, the proposed question No. 2[A] is held against the Revenue and the present Tax Appeal is dismissed so far as proposed question No.2[A] is concerned. 5. Present Tax Appeal is ADMITTED to consider the following substantial questions of law; [B] Whether the Appellate Tribunal is right in law and on facts in holding that the assessee is entitled to dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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