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TMI Blog2019 (7) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... rived from the industrial undertaking, as the men, material and machinery of the Pondicherry industrial undertaking were not used to earn income and therefore, correctly denied deduction u/s 80IA - Decided against assessee. Reopening of assessment u/s 147 - HELD THAT:- On a perusal of the re-assessment order dated 16.03.2006 and the reason for reopening is based on the information which came to the notice of the AO during the course of the assessment proceedings for the assessment year 2001-02 during which the AO came to know that the assessee does not carry out any maintenance work from its industrial unit at Pondicherry. Thus, the reason for reopening in the instant case was based upon the tangible material which came to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of the case, the Tribunal is right in law in holding that reopening of the assessment for the Assessment Year 1999-2000 under Section 147 of the Act is valid in law? ii. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the appellant is not entitled to relief under Section 80 IA of the Act in respect of AMC charges, other income and in erroneously adding back interest income? 3.Heard Mr.M.P.Senthil Kumar, learned counsel for the appellant/assessee; and Ms.R.Hemalatha, learned Senior Standing Counsel for the respondent/Revenue. 4.So far as the second substantial question of law is concerned, the same has been decided ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... software is a very high security risk, as they dispense large amounts of cash. Further, it is submitted that in view of special type of machine, provision of maintenance service is an integral part of manufacturing and selling activity. The above submissions made by Mr.M.P.Senthil Kumar were never pleaded either before the Assessing Officer, or before the CIT(A) or before the Tribunal either in the same tenor or in a different manner. Therefore, such a plea cannot be raised at this juncture. Even assuming they were raised earlier, when the assessee has miserably failed to establish the same before the fact finding authority, they cannot be permitted to raise such a contention before this Court for the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is clearly based on change of opinion. 8.The learned counsel placed reliance on the decision in the case of M/s.Tanmac India vs. Deputy Commissioner of Income Tax, [2016] 97 CCH 0189 ChenHC. 9.Ms.R.Hemalatha, learned Senior Standing Counsel for the respondent/Revenue submitted that this issue has been settled by the Hon'ble Supreme Court in DCIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd., reported in 295 ITR 499, the decision in the case of DCIT vs. Zuari Estate Development and Investment Co Ltd., [Civil Appeal No(s).6758 of 2004, dated 17.04.2015] and the decision in the case of Commissioner of Income-tax v. Kelvinator of India Ltd. reported in [2010] 320 ITR 561(SC). There can be no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the return and therefore, the Court held that it is nothing but a review of the earlier proceedings and abuse of power by the Assessing Officer which has been deprecated by the Hon'ble Supreme Court in Kelvinator of India Ltd. (supra). 14.In the instant case, the facts are entirely different and it is vividly clear on a perusal of the re-assessment order dated 16.03.2006 and the reason for reopening is based on the information which came to the notice of the Assessing Officer during the course of the assessment proceedings for the assessment year 2001-02 during which the Assessing Officer came to know that the assessee does not carry out any maintenance work from its industrial unit at Pondicherry. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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