TMI Blog2015 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 in the face of the decision of this Court in Asian Paints Ltd. (supra). Mr. Pinto very fairly states he is unable to justify the same. Therefore the assessment order dated 30 November 2010 cannot be sustained and the same is hereby quashed and set aside. The consequent demand notice dated 30 November 2010 issued under Section 156 of the Act and the show cause notice dated 30 November 2010 in respect of proposed penalty also cannot be sustained and are hereby quashed and set aside. - Decided in favour of assessee. Challenge to the impugned notice dated 26 March 2010 seeking to reopen the assessment for the Assessment Year 2005-06 - Held that:- We do not disturb the impugned notice dated 26 March 2010 and the order dated 23 November 2010 disposing of the petitioner's objections as second ground in the reasons recorded indicates that the basis of the Assessing Officer for issuing the impugned notice was that the factory license to manufacture the goods inrespect of Unit No.II was issued to the petitioners only on 22 April 2004 i.e. after the end of the previous year relevant to the Assessing Year 2004-05 thus leading to a reasonable belief that the petitioners claim that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed during the Assessment Year 2005-06 are as under: Deduction Allowed Date of commencement Unit-I1,56,38,980/- 31.03.1997 Unit-II 54,02,039/- 22.03.2004 As per the provisions of Section 80IB(4), where the gross total income of an assessee includes any profits and gains derived from an industrial undertaking which begins to manufacture or produce articles or things at any time during the period from 01.04.1993 to 31.03.2004, the deduction is alloable at the prescribed percentage of profits for specified period. Further, subsection (13) r.w.s. 80IA(7)stipulates that the deduction is allowable only if the assessee furnishes alongwith the return of income, a certificate in Form10CCB from an accountant who audited the accounts of the assessee. It is seen that the accounts of the assessee were audited by Shri. Surendra Nigsure, Chartered Accountants of M/s Harshad H. Parekh Co. whereas audit certificate in Form 10CCB was furnished by Shri. Vipul R. Ladda, Chartered Accountants of M/s Shah Ladda. As the accountant who has audited the accounts has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in support thereof produced licence given by the Drug Authorities, registration with Excise Authorities, Sales Tax Authorities, etc. in support to its contention that manufacturing activity had commenced in previous year relevant to assessment year 2004-05. It was also contended that the impugned notice is on account of mere change of opinion. 5. The Assessing Officer by an order dated 23 November 2010 rejected the petitioner's objections to the reasons recorded for reopening of the assessment. This on the ground that there was no change of opinion, as according to the Assessing Officer, no opinion was formed with regard to the issues now raised while passing the Assessment Order dated 26 November 2007 in regular assessment proceedings. 6. Thereafter the present petition was filed in this Court and the Assessing Officer was informed by letter dated 13 December 2010 that this petition has been filed challenging the impugned notice dated 26 March 2010. Besides the petitioner also drew attention to the decision of this Court in Asian Paints Ltd. Vs. DCIT in 296 ITR 90 wherein it has been laid down that when an objection to reopening of an assessment is disposed of by an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the manufacture had commenced at Unit No.II on 22 March 2004 i.e. even prior to the issue of a factory license. It is the petitioner's case that absence of a factory license would not by itself indicate that there has been no manufacture carriedout by the petitioners at Unit No.II while considering the petitioner's case for benefit under Section 80IB of the Act. The petitioners have also sought to contend that this aspect of the matter has examined during the assessment proceedings and therefore the impugned notice is completely without jurisdiction. In the present facts this would also require investigation, as admittedly the petitioner had during the assessment proceedings not declared to the department that it did not possess factory license to manufacture at Unit No.II before 31 March 2004. It is a settled position of law that at the stage of the impugned notice, the Assessing Officer must have reason to believe the income eligible to tax has escaped assessment. This belief must be a prima facie view and not a final/concluded view. On reading of the grounds of the impugned notices, we are of the view that it cannot be said that the grounds in support of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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