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TMI Blog2018 (4) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration: "(a) Whether on the facts and in the circumstance of the case and in law, the Tribunal erred in considering the reopening of the case as bad in law, without appreciating the fact that no opinion has been formed on the issue of allowing deduction u/s 80IC in respect of component of "other income" which was not derived from industrial undertaking and therefore on this issue on which assessment is sought to be reopened, there was no question of "change of opinion" as held erroneously by the Tribunal and material available on record would form "tangible materials" to constitute "reason to believe" that income has escaped assessment at the time of reopening of assessment ?" 3. Respondent-Assessee is engaged in manufacture of cotton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, excess allowance of deduction u/s 80IC at Rs. 4.99 Crores has been made by omitting to exclude the following receipts/incomes which are not derived from the business of the undertaking as per requirement of deduction under section 80IC. As per Schedule7 Rent from property Rs.3,82,878/ Export Benefits Rs.84,48,875/ Insurance and other claims Rs.45,51,894/ Miscellaneous Income Rs.2,54,29,908/ Provision no longer required Rs.8,00,304/ Total:- Rs. 3,96,13,659/- As per Schedule 10 Interest received Rs.1,03,02,234/ Gross Total Rs.4,99,15,893/ ========== I, therefore, have reason to believe that income chargeable to tax to the extent of Rs. 4.99 Crores has escaped assessment. Issue notice u/s 148 for A.Y.2007- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the entire material including the response of the Respondent to the queries raised in regular assessment proceedings, the claim for deduction of Rs. 33.67 Crores under Section 80IC of the Act made by the Respondent-Assessee was reduced by Rs. 11.49 Crores. 8. Thus, the impugned order holds that there was a view taken/opinion formed during the regular assessment proceedings. Therefore, this is a case of change of opinion on the part of the Assessing Officer in issuing notice dated 15.2.2011 seeking to reopen assessment for the Assessment Year 2007-08. The impugned order interalia placed reliance upon decision of the Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 that "reasons to believe" do not empower the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim for deduction under Section 80IC of the Act. 11. The undisputed position in the present case is that the regular assessment was completed under Section 143(3) of the Act and the reopening has been issued within a period of four years from the end of the relevant Assessment Year. Thus, the rigour of the first proviso to Section 147 of the Act is not to be satisfied for issue of a reopening notice i.e. failure to disclose all material facts truly and fully necessary for assessment. It is also not disputed that in the regular assessment proceedings, queries were raised in respect of claim under Section 80IC of the Act and the same were responded to by the Respondent-Assessee resulting in reduction of claim for deduction under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion for the Assessing Officer to apply his mind to the claim by the Respondent-Assessee in that case, did not arise. As against the above in this case the Assessing Officer consciously considered the claim for deduction under Section 80IC of the Act as is admittedly evident from the issues raised during the regular assessment proceedings. This by itself would be evidence of the fact that the Assessing Officer had occasion to apply his mind to the claim for deduction under Section 80IC of the Act during the regular assessment proceedings and had taken a view on the claim of deduction under Section 80IC of the Act. 12. Moreover, we find that the reasons in support of the impugned notice is not premised on the fact that he had not applied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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