TMI Blog2015 (6) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of the Act . - Decided in favour of assesse. - TAX APPEAL NO. 114 of 2000 - - - Dated:- 16-12-2014 - MR. KS JHAVERI AND K.J.THAKER, JJ. FOR THE APPELLANT : MS NIYATI K SHAH, ADVOCATE FOR THE RESPONDENT : MR KM PARIKH, ADVOCATE JUDGMENT : (PER : HONOURABLE MR.JUSTICE K.J.THAKER) 1. By way of this appeal, the appellant has challenged the order dated 9.3.2000 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench in Appeal No.2428/Ahd/1994 for the assessment year 1987-88. 2. The facts giving rise to the present appeal are that the appellant is a company incorporated under the Companies Act, 1956 and had set up one industrial undertaking in the notified area of Jammu Kashmir for manufacturing of rosin, turpentine and rosin derivatives to avail of the benefit under section 80HH of the Income-tax Act. The appellant derived income of interest, dividend and rental income out of surplus funds and short term advances which accrued to the appellant company from the profits and as such were considered as income derived from the industrial undertaking set up in the backward area and deduction under section 80HH of the Act on the same was allowed while co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in upholding the validity of the Reassessment Order dated 3.6.93 passed u/s. 143(3) r.w.s. 147 of the Act especially when the original assessment order passed u/s. 143(3) of the Act on 15.12.1989 was cancelled by C.I.T., Amritsar vide his order dated 28.2.92 passed u/s. 263 of the Act and no fresh order was passed pursuant thereto? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that assessment was validly reopened u/s. 147 of the Act, inspite of the fact that all primary facts were disclosed by the appellant in the return of income and after considering the same, deduction u/s. 80 HH was allowed on interest income, dividend income and rental income in the original assessment and hence mere change of opinion does not constitute information within the meaning of Sec. 147 of the Act? 3. Ms. Niyati K. Shah, learned advocate appearing for the assessee submitted that all the primary facts were disclosed along with the original return of income fro assessment year 1987-88 and after perusing the said details, the Assessing Officer observed that deduction u/s. 80HH is allowable on interest income as well as rental income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to have escaped assessment within the meaning of this section if the assessment proceedings in respect of that income and/or issue are still pending and have not yet been culminated into a final order.... II. Commissioner of Income Tax, Delhi vs. Kelvinator of India Limited reported in [2010] 320 ITR 561, para 6 of which reads as under: On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the same. III.Ganesh Housing Corporation Ltd. vs. Deputy Commissioner of Income-Tax and another reported in [2013] 350 ITR 131 (Guj) wherein the decision in the case of Kelvinator of India has been followed. This Court has held as under: It is now a settled law that if an explanation is added to a section of a statute for the removal of doubts, the implication is that the law was the same from the very beginning and the same is further explained by way of addition of the Explanation. Thus, it is not a case of introduction of new provision of law by retrospective operation. We find that the petitioner had disclosed all the materials relevant for the purpose of getting the benefit under Section 80IB of the Act and there was no suppression of materials. In spite of full disclosure, the Assessing Officer gave benefit of the provision by considering the materials on record and thus, it cannot be said that any income escaped assessment in accordance with law. We find that the Assessing Officer has now given a second thought over the same materials. Similarly, the fact that the Assessing Officer in the assessment proceedings under section 143(3) of the Act did not give any op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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