TMI Blog2013 (1) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... he filed his original return of income for the relevant period declaring income at ₹ 78,38,794/- after claiming deduction under Chapter-VIA at ₹ 55,63,3147-. The assessment was made u/s. 143(3) on 28.2.2006 determining total income at ₹ 2,27,00,280/- The appellant filed an appeal against the said assessment order and, after the order of Ld. CIT(A) the appellant's income for the relevant period was worked out at Rs,88,70,638/- u/s.250 of the Act passed on 3011,2006, Subsequently, an appeal filed before the ITAT, in pursuance of that order the appellant's income was determined at ₹ 1,32,00,294/- vide order dated 31.12.2007 The assessment was reopened u/s 147 of the Act by the A.O. after he discovered that the .appellant's income had been made the subject of excessive relief under the provisions of sec.80HHC of the Act. The A.O. while reopening the assessment recorded following reasons:- (a) Sales tax and excise duty are to be considered as part of total turnover while computing the deduction u/s. 80HHC. (b) Export turnover is to be determined on the basis of sales proceeds received by assessee in convertible foreign exchange realized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.R. strongly supported the order of Ld. CIT(A). He also submitted that the reopening is on the basis of subsequent amendment and subsequent judgements of Hon ble High Courts and Hon ble Supreme Court and, therefore, the reopening is valid. 9. We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the judgements cited by the Ld. A.R. First, we discuss the applicability of various judgement cited by the Ld. A.R. of the assessee. - The first judgement cited by him is the judgment of Hon ble Gujarat High Court rendered in the case of CIT Vs Nirma Chemical Works Pvt. Ltd. (supra). In that case, the issue involved was not regarding validity of reopening of the assessment but validity of revisional order passed by Ld. CIT u/s263 of the Income tax Act, 1961. In that case, the facts were that the order of A.O. partially disallowing the claim u/s 80-I was reversed by Ld. CIT(A) by accepting the claim of the assessee but the Commissioner had taken a different view and under these facts, it was held that it is not a case of order of A.O. being erroneous and prejudicial to the interest of the revenue and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in convertible foreign exchange realized within stipulated time. The 3d objection is this that DEPB receipt to be covered by Section 28(iiid) as per the recent amendment made by Taxation Laws Amendment Act, 2005. His 4th and last objection is this that the assessee is not considered as eligible for claiming deduction u/s 80HHC on disclaimer certificate issued to it as held in assessment year 2004-05 in order u/s 143(3) dated 29.12.2006. For the assessment year 2002-03, the reasons recorded by the A.O. for reopening are available on page 1 of the paper book and there also, the objections are the same and there is one more objection that other incomes are required to be excluded from business income for computing the claim for deduction under Chapter VIA. 10. From these reasons recoded by the A.O. for reopening, we find that only with regard to DEPB receipt, the A.O. has given reference o amendment made by Taxation Laws Amendment Act 2005 and for none of the other objections; he is referring to any amendment in the law or any judgement of any High Court or Hon ble Supreme Court. Hence, for all other objections, the submissions of Ld. D.R. is not valid that reopening is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was any profit on sale of DEPB as per these amended provisions. Without finding as to whether there was in fact any profit on sale of DEPB, it cannot be alleged that any income has escaped assessment and hence, this objection of the A.O. is also devoid of any merit. Regarding all other objections, it is seen that the same are on mere change of opinion because all these details were available with the A.O. even at the time of original assessment. In assessment year 2003-04, as per the original assessment order, the A.O. had revised the working of assessee for deduction u/s 80HHC and hence, it cannot be said that the claim of the assessee for deduction u/s 80HHC was not examined and no opinion was formed by the A.O. in this regard at the time of original assessment. Similarly, in assessment year 2002-03 also, the A.O. had examined and revised the working of the assessee for claiming deduction u/s 80HHC and the same is available on pages 36-38 of the paper book and hence, for this year also, it cannot be said that the A.O. did not form an opinion about various aspects of computation for 80HHC deduction such as whether the Sales Tax and Excise Duty are to be considered as part of total ..... X X X X Extracts X X X X X X X X Extracts X X X X
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