9911796707
TMI Blog2016 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order came to be passed on 24.11.2008 while passing the said order of assessment, various deductions claimed by the assessee at length and made certain variations to the income submitted by the assessee, and ultimately an assessment order came to be passed. During the assessment year 2006-07, on 15.05.2008 by issuing notice, the Deputy Commissioner has sought certain justification for considering the claim of deduction sought under section 80IB of the Act and the said notice came to be complied with by the petitioner by submitting reply on 26.05.2008. It was after considering the said reply, the authority has passed an order of assessment under section 143(3) on 24.11.2008, by virtue of which, the claim of the petitioner company for seeking deduction under section 80IB was allowed. Subsequent to the same, the respondent authority has issued the impugned notice under section 148 of the Income Tax Act on 04.03.2011 for the purpose of reopening assessment for the assessment year 2006-07. On receipt of the said notice, the petitioner company has demanded the reasons for the same, which came to be supplied vide letter dated 04.03.2011 and the main reason which has been assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2001-02, and therefore, for a period of 10 years upto the year 2010-11, it is open for the petitioner to claim exemption for deduction under section 80IB. The counsel has further contended that it is well settled position of law that Assessing Officer cannot take any action under section 147 of the Act, merely, because he happens to have a different opinion and inclined to take another view from his predecessor on the basis of same set of facts. Learned counsel further submitted that the reasons which have been supplied are not valid reason to permit the reassessment and therefore, the notice which has been issued, be quashed and set aside. It was also contended by the counsel that the business unit of single piece of foldable lens manufacturing was set up in the year 2001-02 and there is no failure on the part of the assessee in disclosing fully and truly all material facts for framing the assessment and therefore, in absence of any such allegation remotely not being reflected in the reasons for reopening the impugned notice would required to be quashed and set aside. Learned counsel has drawn the attention to one of the decisions delivered by Full Bench of Delhi High Court Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 9 of the said report, which reflects that the unit pertaining to foldable lens set up in the assessment year 2001-02 and therefore by drawing attention to this material, learned counsel submitted that the claim which have been made by the petitioner is justified. The counsel has further submitted that all these particulars which have been produced before the authority and explained have been gone into and only thereafter the assessment is passed and therefore, there is no justifiable reason to reopen the assessment. 5. It was also further contended that the scrutiny assessment has already taken place with respect to assessment year 2006-07 and in assessment proceedings also, the chartered accountant appointed by the petitioner has represented the petitioner company and produced all relevant material and after considering those relevant materials, the claim of deduction made available to the petitioner. A reference is made by the counsel to the last portion of said scrutiny assessment order dated 24.11.2008, wherein, under the head of deduction under chapter6A, item No.II which is dealing with the said claim and therefore, the counsel has submitted that this scrutiny assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 143(3) and the same claim was again allowed to the assessee for assessment year 2006-07 for which also, the assessment was completed u/s 143(3). He has followed the judgement of Hon'ble Gujarat High Court rendered in the case of Saurashtra Cement & Chemical Industries Ltd. (supra) and held that the A.O. Cannot withdraw relief to a new industrial undertaking which has already been granted without disturbing such relief for earlier years. Considering these facts, we do not find any reason to interfere in the order of Ld. Commissioner of Income Tax (Appeals) because the Ld. D.R. of the revenue could not show that such relief was not allowed by the A.O. in earlier years or to show that such relief although allowed but was subsequently withdrawn. Regarding this contention of the Ld. D.R. that no evidence was furnished by the assessee before the A.O. In respect of putting up of new unit in assessment year 2001-02, we find that as per the assessment order passed by the A.O. u/s 143(3) for the assessment year 2004-05 and assessment year 2006-07, deduction was allowed by the A.O. to the assessee u/s 80IB. The A.O. himself has stated in the assessment order that for the unit establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, this being the position, the counsel for the Revenue submitted that since it is within the period of four years and the deduction is claimed after the lapse of 10 years, the notice is justifiably issued. It was also submitted that a plea of the petitioner about new unit of single piece and foldable lens manufacturing units commenced in the assessment year 2001-02 was not accepted by the department in the immediate preceding year viz. 2005-06 and therefore, since this claim has not been discussed and examined in scrutiny assessment, it is not open for the petitioner to justifiably claim the benefit under section 80IB and therefore, learned counsel submitted that in the background of this fact, no relief be granted. 8. Learned counsel for the Revenue has further submitted that condition precedent which is engrafted in section 80IB has not been fulfilled by the assessee, hence it is not open for the petitioner company to claim any deduction. It was also submitted that the industrial undertaking is considered to be small scale industrial undertaking its investment in fixed assets and plant and machinery were held on ownership terms or on lease or on higher purchase does not exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing the amount of disallowable u/s. 80IB chargeable to tax has escaped assessment for A.Y. 200607 and accordingly it is the fit case for reopening the assessment u/s. 147 for the A.Y. 200607." 11. From the aforesaid reasons, it appears that a sole ground appeared to be that the assessee company has started operations on 16.08.1994 and therefore, its initial assessment year for claiming deduction under section 80IB of the Act would be 1995-96 and the said deduction would be available for 10 consecutive assessment years, and the period of 10 years lapsed on 2004-05 and therefore, the department proceeded with the claim of deduction as sought after completion of stipulated period of 10 years and it is in this solitary ground, it appears that action for reopening of assessment have been initiated. 12. In the backdrop of these reasons, if we examine the stand of the petitioner with respect to its set up and commencement of manufacturing process, the documents attached to the petition compilation reveal that with respect to single piece and foldable lens manufacturing, the eligible business set up in the assessment year 2001-02, and therefore, the tenure of 10 years to be commenced f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision delivered by the Income Tax Appellate Tribunal, Ahmedabad Bench in case of very petitioner and while dealing with, the Tribunal held that new unit is very much recognized and found to have established in the assessment year 2001-02 and thereby, for the assessment year 2006-07, the deduction was allowed by Assessing Officer under section 80IB. 15. Thus, it is clear from the record that on prior period to 2005-06, the benefit of section 80IB was already granted to the petitioner unit and after the year 2005-06 also, the said benefit has been granted and recognized and therefore, learned counsel rightly pointed out that it is not open for the authority to pick up in between period and to disturb the benefit which has already been considered and for that purpose relying upon the decision in case of Saurashtra Cement & Chemical Industries Ltd. v. Commissioner of IncomeTax GujaratV, reported in [1980] 123 ITR 669. It appears that since the authority cannot take up an in between period to deny the benefit, the reopening for period for which has been granted is not permissible. 16. From the aforesaid position prevailing on record, it appears that the reasons which have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
