TMI Blog2011 (10) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... lidated order. 3. In the assessment year 1999-2000, return of income was filed u/s 139(1) on 29.12.1999 declaring nil total income, copy of audit report alongwith relevant annexures in Form no. 10CCAC with working for claiming deduction u/s 80HHC were enclosed with the return. Return was processed u/s 143(1)(a) accepting the returned income. Thereafter, notice u/s 263 was issued by CIT-II on 22.02.2002 stating that deduction u/s 80HHC was not properly allowed and PF/ESIC payments were not allowable u/s 43B. It was proposed that order passed by the Assessing Officer was erroneous and prejudicial to the interests of the revenue. The assessee had objected to issuance of notice u/s 263. After considering the assessee s submission, order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 147 and consequent assessment order is bad in law. Contention of the ld. Authorized Representative was that proceedings u/s 263 were initiated on the issue of deduction u/s 80HHC. The entire issue was dealt in detail by the CIT in his order u/s 263 after calling a report from AO. The issue having been examined by the Higher Authorities cannot be subject matter of review by the lower authorities. As per the ld. Authorized Representative, the moot question is whether order passed u/s 263 is amenable to reopening by the Assessing Officer u/s 147 and contended that this is a unique case of breach of judicial hierarchy and AO has no jurisdiction to reopen an assessment when the proceedings u/s 263 have been initiated on the same issue and even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the AO, it was held that claim of deduction u/s 80HHC has been correctly made by the assessee. The ld. Authorized Representative submitted that every time the case has been examined/reviewed from the angle of Section 80HHC, therefore, reopening of assessment by the Department is based on mere change of opinion. He further pleaded that claim allowed earlier on the basis of interpretation of law existing at the time of filing of return is good law and reopening merely on change of opinion is bad in law. Reliance is placed on the following decisions :- a. I.T.A.T., Indore Bench, M/s. Patel Pravah, Neemuch vs. ITO, 4 ITJ 302. b. I.T.A.T. Delhi ( FB) CIT vs. Kalvinator of India Limited, 256 ITR 1. c. Supreme Court of India, CIT vs. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.R. relied on the orders of the authorities below and contended that after recording reasons, the AO was justified in reopening the assessment as the claim of deduction u/s 80HHC was not found to be correct. 10. We have considered the rival contentions, carefully gone through the orders of the authorities below. We had also deliberated on the case laws cited by lower authorities in their respective orders as well as referred to by the ld. Authorized Representative during the course of proceedings before us. From the record, we found that the issue with regard to claim of deduction u/s 80HHC was first time wracked up by CIT u/s 263 vide its order dated 16.10.2002 for the assessment years 1998-99,1999-2000 and 2000-01. In his order u/s 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Alpine Solvex Limited I.T.A.No. 510 1026/Ind/1997 Order dated 26th February, 1999. 12. Thus, it is clear from the order of the ld. CIT u/s 263 that the assessee s claim of deduction u/s 80HHC was correct. The issue with regard to deduction u/s 80HHC having been examined by the Higher Authorities cannot be subject matter of review by the lower authorities. I.T.A.T., Bangalore A Bench in the case of Asea Brown Boveri Limited vs. Addl. CIT, 2010-TIOL-190-I.T.A.T.-BANG, relying on the decision of Madras High Court in the case of Ramchandra Hatcheries, 305 ITR 117 observed that the AO has no jurisdiction to reopen the assessment u/s 147, so as to circumvent the order of the CIT which has become final. As there was no new facts c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer are invalid and void ab initio. On this issue I.T.A.T., Mumbai Bench in the case of Mahinder Freight Carriers, 56 DTR 247, held that when proceedings u/s 154 were pending and the AO was not sure whether the issue in controversy could be subject matter of Section 154 or the same can be subject matter of proceedings u/s 147, there is no justification for issue of notice u/s 148. 15. I.T.A.T. Delhi Bench in the case of S.M. Overseas Private Limited, 23 DTR 29 held that during pendency of rectification proceedings u/s 154, it was not open to the AO to initiate reassessment proceedings on the same issue and for this purpose, reliance was placed on the decision of Mumbai Bench in the case of Jethalal K. Morbia, 109 TT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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