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TMI Blog2019 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011- 2012 on 27th September 2011 disclosing its income at Rs. 7,74,91,120/-. The return of income was further revised on 12th June 2012. The Assessing Officer, thereafter, framed assessment under section 143(3) of the Act on 21st March 2014, determining the income of the petitioner at Rs. 7,78,12,971/-. 4. Subsequently, by the impugned notice dated 28th March 2018 issued under section 148 of the Act, the Assessing Officer seeks to reopen the assessment of the petitioner for assessment year 2011-2012. Subsequently, the reasons for reopening the assessment came to be furnished to the petitioner. By a letter dated 6th August 2018, the petitioner raised objections against the reopening of assessment and requested the respondent to drop the reassessment proceedings. By communication dated 25th October 2018 the respondent rejected the objections. 5. Mr. B. S. Soparkar, learned advocate for the petitioner, assailed the reopening of the assessment for the assessment year under consideration by submitting that on a perusal of the reasons recorded, it is evident that the same is based upon a mere change of opinion. The attention of this court was invited to the replies dated 19th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment is not sustainable. 6. Opposing the petition, Mr. Varun Patel, learned senior standing counsel for the respondent, placed reliance upon the averments made in the affidavit-in-reply filed by the respondent. It was submitted that the petitioner, a small scale industry, had commenced manufacturing from financial year 2001-2002. For the purpose of availing benefit of deduction under section 80IB(3) of the Act, the petitioner was required to maintain investment limit up to Rs. 1,00,00,000/-. However, the petitioner has invested an amount of Rs. 1,26,31,890/- in plant and machinery as on 31st March 2011, which exceeds the limit of Rs. 1,00,00,000/- (rupees one crore) as envisaged in then applicable limit at the time when its first commenced production in the financial year 2001-2002 for claiming deduction under section 80IB(3) of the Act. 6.1 It was submitted that reclassification of small scale industry as small or medium industry under the Micro, Small and Medium Enterprise Development Act, 2006 (hereinafter referred to as the MSMED Act) does not mean that the investment limit of the erstwhile small scale industry unit has been enhanced to rupees three crore for claiming dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer, since these incomes are not related to the manufacturing activity, the same could not be considered for deduction under section 80IB of the Act. He, therefore, confronted the petitioner with these facts and asked it to submit a revised computation of eligible deduction under section 80IB of the Act taking into consideration the above facts. Thereafter the petitioner reworked its claim under section 80IB of the Act and submitted a revised claim reducing its claim from Rs. 2,30,25,942/- to 2,26,99,091/-. The Assessing Officer accordingly added back an amount of Rs. 3,26,851/- to the total income of the assessee. 10. It may be noted that prior to passing the above assessment order, the Assessing Officer had issued various notices to the petitioner under section 143(2) of the Act as well as 142(1) of the Act calling for details with regard to deduction claimed under section 80IB(3) of the Act, specifically with regard to the deduction claimed by it of Rs. 2,30,25,942/- in the return of income. Pursuant thereto, the petitioner had submitted its reply dated 27th February 2014 bringing to the notice of the Assessing Officer the amended notification for SSI unit in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his mind to it and thereafter partly allowed the claim of deduction under section 80IB(3)of the Act, it is more than apparent that by the impugned notice the respondent seeks to reopen the assessment on a mere change of opinion. The first question, therefore, stands answered accordingly. 12. Insofar as the second question is concerned, in this case the impugned notice has been issued on 28th March 2018 seeking to reopen the assessment for assessment year 2011-2012, which is clearly beyond a period of four years from the end of the relevant assessment year. The first proviso to section 147 of the Act provides that where an assessment under sub-section (3) of section 143 or that section has been made for the relevant assessment year, no action shall be taken under that section after the expiry of four years from the end of the relevant assessment year, unless income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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