TMI Blog2018 (4) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the regular assessment proceedings and had taken a view on the claim of deduction under Section 80IC of the Act. The reasons in support of the impugned notice is not premised on the fact that he had not applied his mind to the claim for deduction under Section 80IC during the regular assessment proceedings in respect of the income/receipts which were not derived from its paper and pulp unit to claim benefit under Section 80IC of the Act. It proceeds to exclude the above income from the claim for deduction on account of omission by the Assessing Officer during the regular assessment proceedings. This is different from non-application of mind to claim for deduction under Section 80IC of the Act. As held by this Court in Hindustan Lever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe that income has escaped assessment at the time of reopening of assessment ? 3. Respondent-Assessee is engaged in manufacture of cotton piece goods, denim, yarn, caustic soda, salt, pulp and paper, etc. The Respondent-Assessee had in its return of income claimed deduction of ₹ 33.67 Crores under Section 80IC of the Act in relation to its paper and pulp unit on the basis of audit report in form 10CCA. During the scrutiny proceedings, the Assessing Officer raised specific queries with regard to above claim under Section 80IC of the Act which was responded to by the Respondent's letter dated 23.3.2009 and 30.3.2009. The Assessing Officer after considering the entire material on record disallowed the Respondent' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provision no longer required Rs.8,00,304/ Total:- ₹ 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 ₹ 4.99 Crores has escaped assessment. Issue notice u/s 148 for A.Y.2007-08 5. Respondent objected to the reopening of the notice on the ground that the same amounts to change of opinion and therefore without jurisdiction. However, the Assessing Officer reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80IC of the Act made by the Respondent-Assessee was reduced by ₹ 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 Officer to reopen an assessment when there is change in opinion. Power to reopen assessment as observed by the Supreme Court is only a power to reassess not to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 80IC of the Act. In the above facts, it is self evident that the Assessing Officer was conscious of the claim of deduction made by the Respondent-Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 his mind to the claim for deduction under Section 80IC of the Act during the regular assessment proceedings in respect of the income/receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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