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TMI Blog2015 (1) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to Cross Appeals by the assessee and the department, and since GOA for assessment year 2003-04 have identical issues as in assessment year 2002- 03, all the three appeals are taken up for disposal through this common and consolidated order for the sake of convenience and brevity. ITA No. 6416/Mum/2010 : Assessee Appeal : 3. The following grounds have been taken: "On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the learned Assessing Officer's stand in reopening the assessment u/s 147 of the Income Tax Act. The appellant prays that the reopening of assessment u/s 147 of the Income Tax Act may be declared bad in law and reassessment order may please be cancelled. The appellant crav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses between eligible and non eligible units. 6. The AO in the assessment order had reduced the qualifying amount from Rs. 85,52,55,883/- to Rs, 80,34,34,780/-, allocating Rs. 5,18,21,103/- for Export Oriented Unit (EOU). 7. Before the CIT(A) the assessee made detailed submission by giving the location wise units of the assessee and pointed out that it had distinguished its eligible EOU and non eligible EOU, which are as follows: Location of EOU Units Mahape Electronic Sadan No. II (3 floor) & Electronic Sadan No. IV, MIDC TTC Industrial Area, Mahape, Navi Mumbai 400 710 The Non-EOU Units are located all over India, with several branches as under: Location wise details of Non-EOU Units 1. Kolkatta 2. Jamshedpur 3. Bhubneshwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches of the company all over India, have no connection with the EOU Units located at Mahape, Navi Mumbai. Therefore, it was wrong on the part of the AO to re-locate a part of these expenses to the EOU Units of the company on the basis of percentage of the turnover of the company vis-ã-vis the turnover of STP Units. It is further submitted that the expenses of Rs. 20,76,32,766/- also include depreciation amounting to Rs. 10,69,00,000/-. The depreciation costs was for the assets lying in common divisions at various above mentioned locations. The said depreciation can be apportioned over non EOU units and not on the EOU units as these assets did not form part of the fixed assets of the EOU Units. The action of the AO in apportioning ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO is therefore held as unjustified and hence deleted. The appellant is therefore eligible for full claim u/s.10B of I. T. Act amounting to Rs. 85,52,55,884/-. The AO is directed to allow deduction of Rs. 85,52,55,884/-". 9. The CIT(A), thus allowed full allowance of deduction, u/s 10B of the Income Tax Act, 1961, for the unit claimed by the assessee. 10. Against this order, the department is in appeal before the ITAT. 11. Before us the AR submitted that the order on merits is correct on facts and therefore order of the CIT(A) should be sustained on merits, whereas, the DR relied on the orders of the AO. 12. After hearing the arguments of the contesting parties, and also placing reliance on the order of the ITAT in assessee own case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate reassessment proceedings, first amongst which is Time limit for notice, i.e. section 149(1) "(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; 18. The AR pointed out that the Act is very clear to say and use the expression, relevant assessment year ... for that year. 19. Thus according to the AR, the AO erred in initiating the current reassessment proceedings on 31.03.2009, which is beyond six years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities examined those vary details to come to a different conclusion. This, in our view, the case would clearly fall within the ratio laid down Hon'ble Delhi High Court in the case of CIT vs Kelvinator of India, reported in 256 ITR 1 (Del-FB), approved by the Hon'ble Supreme Court in as reported in 320 ITR 561 (SC). 23. The Hon'ble Supreme Court has emphasized that it is essential to have, reason to believe to reopen the proceedings, this fact, we do not find anywhere in the order or notice. This has since been followed by the Hon'ble Bombay High Court in the case of Sitara Diamond (P) Ltd vs DCIT reported in 262 CTR 299 (Bom). 24. Another major discrepancy noticed during the course of arguments is that there is no mention of autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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