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Afcons Infrastructure Ltd. (Formerly) Asia Foundations and Constructions Ltd. Versus Shri Kailash Naredi, Dy. C.I.T. Special Range 5, Mumbai & Another

2016 (7) TMI 850 - BOMBAY HIGH COURT

Reopening of assessment - investment allowance under Section 32A - Held that:- A subsequent reversal of the legal position by the Apex Court will not authorize the Revenue to reopen an assessment beyond a period of four years from the end of the Assessment Years in the absence of failure to disclose truly and fully all material facts necessary for assessments. In passing we may point out that the Calcutta High Court in Simplex Concrete Piles (India) Ltd. [2003 (4) TMI 90 - CALCUTTA High Court ] .....

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mended provisions, the notice for reopening is without jurisdiction. Also see Simplex Concrete Piles (India) Ltd [2012 (9) TMI 516 - SUPREME COURT ] - Decided in favour of assessee. - Writ Petition No. 1886 of 1996 - Dated:- 14-7-2016 - M. S. Sanklecha And A. K. Menon, JJ. Ms. Aarti Vissanji a/w Mr. S.J. Mehta for the petitioner Mr. Suresh Kumar a/w Ms. Samiksha Kanani for the respondent ORDER P. C. 1. This petition under Article 226 of the Constitution of India challenges Notice dated 4th July, .....

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ect of additions made to its plant and machinery during the previous year relevant to the subject assessment year. However, the Assessing Officer rejected the petitioner's claim for investment allowance by considering it in the assessment order dated 20th February, 1989 passed under Section 143(3) of the Act in regular assessment proceedings. This rejection of the claim was by following its order in earlier assessment years. 3. Being aggrieved, the petitioner preferred an appeal to the Commi .....

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ter, in 1993 the Apex Court in the case of Commissioner of Income Tax Vs. N.C. Bhudhiraja 204 ITR 142 held that the benefit of investment allowance would not be available in case of construction companies undertaking irrigation projects etc. Consequent to the aforesaid decision of the Apex Court in N.C. Bhudhiraja (supra), the impugned Notice was issued to the petitioner as is evident from the reasons recorded in support of the impugned notice, which read as under : The Supreme Court in the case .....

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the relevant assessment year. The reasons as produced hereinabove do not disclose any failure on the part of the petitioner to truly and fully disclose all material facts necessary for assessment, even when the reasons are read as a whole. Accordingly, the impugned notice would be hit by the first proviso to Section 147 of the Act and, therefore, without jurisdiction. This is for the reason that even though a decision of a Court merely declares the law and it would apply retrospectively yet the .....

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this submission for it is an admitted position between the parties that the decision of the Apex Court in Deputy Commissioner of Income Tax Vs. Simplex Concrete Piles (India) Ltd. 358 ITR 129 would cover the issue herein in favour of the petitioner. 7. The decision of the Apex Court in Simplex Concrete Piles (India) Ltd. (supra) upheld the Calcutta High Court decision in Simplex Concrete Piles (India) Ltd. Vs. Deputy Commissioner of Income Tax & Ors. 262 ITR 605. The facts in Simplex Concre .....

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