9911796707
TMI Blog2014 (7) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20 June 2005 and a stay of the impugned notice was granted. 3) On 29 November 2000, the petitioner filed its return of income for A.Y. 2000-01. In its return the petition had declared an income of Rs. 2.04 crores after having claimed deduction of Rs. 6.45 crores under Section 80HHC of the Act. 4) During the course of assessment proceedings by letter dated 15 November 2002 under Section 143(3) of the Act, the Assessing officer called upon the petitioners' to explain why the deduction claimed under Section 80HHC of the Act should not be recomputed in view of loss in trading activities and 90% other income (such as interest) not being correctly taken. The petitioner responded to the notice by letter dated 19 November 2002 and justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) In the mean time, before giving effect to the order of the CIT(A) dated 29 December 2003, the Assessing officer issued impugned notice dated 10 January 2005 under Section 148 of the Act seeking to reopen assessment for A.Y. 2000-01. The reasons in support of the impugned notice as furnished to the petitioner read as under: "ORDER SHEET ALLANA SONS LIMITED A.Y. 2000-2001 Assessee has been allowed deduction u/s.80HHC as under: Trading Profit Rs.16,65,032/ Loss from manufacturing Rs.19,21,142/ Deduction on incentives Rs.5,96,07,066/ Deduction allowed Rs.5,93,50,957/ When the deduction was allowed the judgment of Mangalya Trading and Investment Limited (ITA 6354/Mum/98 dated 23/4/2004) was not available at the time comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons furnished to it for issuing impugned notice dated 10 January 2005. In particular, the petitioner pointed out that: (i) Figures taken as the basis for reopening the assessment for A.Y. 2000-01 are incorrect as it ignores the order in Appeal dated 29 December 2003 passed by the CIT(A) to which extent the order dated 30 December 2002 passed under Section 143(3) of the Act stands modified/merged; (ii) Claim for deduction u/s. 80HHC of the Act was a subject matter of consideration by the Assessing officer while passing assessment order on 30 December 2002 under Section 143(3) of the Act as specific queries in that regard were raised. Thus, the proposed reopening notice is based on mere change of opinion; (iii) The issue viz. method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). On 30 May 2005, CIT(A) allowed the petitioner' appeal and directed the Assessing officer to consider interest income in accordance with the directions contained its earlier order dated 29 December 2003 of the CIT(A). The respondentRevenue being aggrieved by the order dated 30 May 2005 of the CIT(A) allowing the petitioner's appeal preferred an appeal before the Income Tax Appellate Tribunal (Tribunal). 10) Thereafter, during the pendency of this petition the Tribunal disposed of the appeals filed by the petitioner and the respondent revenue against the order dated 29 December 2003 of the CIT(A) on merits. The Tribunal by an order dated 22 November 2006 dismissed the petitioner's appeal with regard to the loss on account of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The impugned notice is without jurisdiction as it is a result of change of opinion on the part of the Assessing officer. During the course of the assessment proceeding the Assessing Officer had specifically made queries with regard to claim for deduction under Section 80HHC of the Act and had considered the petitioner's response to the same while passing the order dated 30 December 2002; and d) Subsequent amendment to Section 80HHC of the Act by introduction of the fifth proviso thereto with retrospective effect from 12 April 1992 would also cover the issue on merits in favour of the petitioner. In view of the above, it is submitted that the petition be allowed. 13) As against the above, Mr. Suresh Kumar learned Counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 2003 of CIT(A) to the extent it directed to the Assessing Officer to consider the interest income while computing the petitioner's claim for deduction under Section 80HHC of the Act. Thus the order dated 30 December 2002 of the Assessing Officer got merged into the order of CIT(A) dated 29 December 2003. The Assessing officer did not give effect to the order dated 29 December 2003 of the Appellate Authority while issuing the impugned notice on 10 January 2005. This resulted the Assessing Officer applying his mind to incorrect figures while forming the reasonable belief that income chargeable to tax has escaped assessment for the issue of impugned notice. Therefore, the jurisdictional requirement of having reason to believe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
