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Mrs. Ann Kumar Versus DCIT, Circle 22 (1) , New Delhi

2016 (5) TMI 362 - ITAT DELHI

Reopening of assessment - exemption u/s 10BA - Held that:- No doubt, Hon’ble Apex Court in judgment cited as Liberty India (2009 (8) TMI 63 - SUPREME COURT) held that incentive profits are not profits derived from eligible business u/s 80IA/80IB, they belong to the category of ancillary profits of such undertaking. Profits derived by way of incentive, such as, DEPB/Duty drawback cannot be credited against the cost of manufacture of goods debited in the profit and loss account and they do not fal .....

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sessee. - ITA No.2756/Del./2015 - Dated:- 30-3-2016 - SHRI R.S. SYAL, ACCOUNTANT MEMBER and SHRI KULDIP SINGH, JUDICIAL MEMBER For The Assessee : Shri Sanat Kapoor and Ms. Ananya Kapoor, Advocates For The Revenue : Shri Deepak Tiwari, Senior DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, Mrs. Ann Kumar (hereinafter referred to as the assessee ), by filing the present appeal sought to set aside the impugned order dated 23.03.2015 passed by the Commissioner of Income-tax (Appeals)-13, New .....

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t jurisdiction and bad in law. 3. That CIT(A) has erred in law in not appreciating that notice under section 148 is based on change of opinion and without any tangible material and hence order passed is without jurisdiction and bad in law. 4. That CIT(A) has, in view of the facts and circumstances of the case, erred in law and on facts in upholding disallowance the deduction of ₹ 2,37,194/- u/s 10BA of the Act. 5. That CIT(A) has erred in law and on facts in not appreciating that decision .....

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he addition made is based on mere surmises and conjectures and the same cannot be justified by any material on record and the same are highly excessive. 10. The Appellant craves leave to add, amend, alter and/or delete any of the above grounds of appeal at or before the time of hearing. 2. Briefly stated the facts of the case are : assessment of the assessee qua the assessment year 2005-06 was completed u/s 143(3) of the Income-tax Act, 1961 (hereinafter the Act ) at an income of ₹ 8,48,44 .....

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ngs to the tune of ₹ 25,60,368/- and job work at ₹ 97,56,374/- and earned duty drawback of ₹ 3,72,186/- and claimed deduction u/s 10BA at ₹ 16,74,971/- which has been allowed after due scrutiny. Finding the explanation of the assessee not tenable and by relying upon the judgment cited as Liberty India vs. CIT reported in 317 ITR 218 (SC) disallowed the deduction of ₹ 16,74,971/- earlier allowed by the AO vide order u/s 143(3) of the Act and thereby the assessed the .....

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the assessee challenging the impugned order contended that apparently, this is a case of change of opinion on the part of the AO to invoke provisions u/s 148 of the Act which is not permissible under law and relied upon the judgment cited as CIT Vs Atul Kumar Swami, 362 ITR 693 passed by Hon'ble Jurisdictional High Court and CIT Vs Tupperware India Pvt. Ltd., I.T.A. No. 415/2015 (Del.) order dated 10.08.2015. However, on the other hand, ld. DR relied upon the order passed by the ld. CIT (A) .....

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the operative part of the judgment is reproduced as under for ready reference :- "REASSESSMENT-NOTICE-MUST BE BASED ON TANGIBLE MATERIAL-NOTE FORMING PART OF RETURN MENTIONING AND DESCRIBING THE NATURE OF RECEIPT UNDER A NON- COMPETE AGREEMENT-NOTICE NOT MENTIONING ANY OTHER FRESH MATERIAL WARRANTING REOPENING OF ASSESSMENT-NOTICE NOT VALID-INCOME-TAX ACT, 1961, ss.147, 148. A valid reopening of assessment has to be based only on tangible material to justify the conclusion that there is esc .....

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rmit invocation of powers for reopening the assessment." 7. Identical issue has been decided by the Hon ble Jurisdictional High Court in case of Madhukar Khosla vs. ACIT - 354 ITR 356 wherein the Hon ble Jurisdictional High Court has also followed its own decision rendered in the case entitled CIT vs. Orient Craft Ltd., the operative part of the judgment (supra) is reproduced as under :- The argument of the revenue that an intimation cannot be equated to an assessment, relying upon certain .....

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nd quite rightly, is that if the revenue wants to invoke Section 147 it should play by the rules of that section and cannot bog down. In other words, the expression "reason to believe" cannot have two different standards or sets of meaning, one applicable where the assessment was earlier made under Section 143(3) and another applicable where an intimation was earlier issued under Section 143(1). It follows that it is open to the assessee to contend that notwithstanding that the argumen .....

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