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TMI Blog2021 (5) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... case where the original return was taken in scrutiny and an order of assessment under Section 143(3) of the Act was passed. This is a case in which the reopening is beyond the period of four years. 3. The case of the writ applicant may be summarized as under; "2.2 The writ applicant, during the Financial Year 201112 relevant to Assessment Year 2012-13 (i.e. the year under consideration), was engaged in the business of manufacturing and trading of agro processing as well as maize processing. The writ applicant also operated wind mills for power generation. The writ applicant filed the original return of income for the year under consideration on 29.11.2012 declaring total income at Rs. 36,73,42,030/- after claiming deduction of Rs. 3,72,55,271/- under section 80-IA of the Act. Later, the writ applicant filed revised return of income on 18.01.14 declaring total income at Rs. 30,62,30,930/- wherein the claim of deduction under section 80-IA of the Act was enhanced to Rs. 9,92,13,248/-. Copy of acknowledgment of original return of income and computation of income is annexed herewith and marked as Annexure-B (Colly). Copy of acknowledgment of revised return of income and computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is annexed herewith and marked as Annexure-"F". 2.6 Suddenly thereafter, the Respondent issued the impugned notice dated 25.03.19 under section 148 of the Act seeking to reopen the case of the writ applicant for the year under consideration. 2.7 The writ applicant filed return of income on 06.04.19 in response to the notice issued under section 148 of the Act. The writ applicant, vide letter dated 08.04.19, informed the said fact to the respondent and further requested the respondent to supply copy of reasons recorded for reopening." 4. The reasons assigned by the Assessing Officer vide communication dated 10.04.2019, Annexure-G to this writ application, reads as under; "1. The Assessee Company is engaged in the business of Manufacturing and Trading of Agro Processing, Maize Processing, Cotton Spinning. The assessee has been operating Wind Mill for power generation and has claimed deduction under section 80IA of the Act for the same. The assessee, M/s Gujarat Ambuja Exports Limited, filed its return of income for the A.Y. 2012-13 on 29.11.2012 declaring total income of Rs. 38,73,42,030/-. Further, the assessee filed revised return of income on 18.01.2014 declaring tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is failure on the part of the assessee to disclose fully and truly material facts on above stated fact which was necessary for its assessment for the year under consideration." 5. To the aforesaid reasons, following objections were filed by the writ applicant vide communication dated 06.05.2019, Annexure-H to this writ application. "1. The claim u/s.80IA is made in view of the above facts of the case, case laws and CBDT circular, it is submitted that there were no unabsorbed depreciation or loss of the eligible undertakings and the same were already absorbed in the earlier years. There is a positive profit during the relevant year. 2. Complete details of claim u/s.80IA were provided by assessee for claim in original return, claim in revised return and justification thereon. 3. There is no escapement of income on the part of assessee. Full and correct disclosure was made in the assessment proceedings, as order u/s. 143(3) was made considering the facts, submissions and case laws. 4. In view of the decision of the Apex Court in the case of GKN Drive Shaft (India) Ltd. vs. ITO (259 ITR 19), the assessee request your goodself to pass a speaking order dealing with the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going through the issue, the Assessing Officer had accepted the explanation given by the petitioner and had allowed the deduction claimed under section 80IA of the Act. It was submitted that, therefore, the Assessing Officer seeks to reopen the assessment on a mere change of opinion, which is not permissible in law. It was submitted that even on merits, the reopening of assessment is bad. 3. Having regard to the submissions advanced by the learned counsel for the petitioner, issue Notice, returnable on 03.12.2019. By way of ad-interim relief, the respondent is restrained from proceeding further pursuant to the impugned notice dated 25.03.2019 issued under section 148 of the Act for the assessment year 201213. Direct service is permitted." 9. Mr. Tushar Hemani, the learned senior counsel raised the following contentions; (i) That there was no failure on the part of the assessee to disclose truly and fully all the materials facts necessary for the assessment. (ii) The notice for reopening has been issued beyond the period of four years from the end of relevant assessment year. (iii) The original return was taken in scrutiny and a scrutiny assessment order was passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notice should be quashed or not bearing in mind the fact that such notice has been issued beyond the period of four years from the end of the relevant year. Our prime consideration, therefore, should be whether before the Assessing Officer could assume jurisdiction, the important requirement of the proviso to Section 147 of the Act, namely, income chargeable to tax had escaped assessment due to the failure of the assessee to disclose truly and fully all the material facts necessary for the assessment, could be said to have been satisfied. 14. The reasons itself record that "on verification of the case records, it is also observed that .....". Thus, the observations of the Assessing Officer found in the reasons recorded are based on the assessment records of the year under consideration. It is not the case of the Revenue that full details pertaining to the assessee's claim for deduction under Section 80IA were not furnished. Even the assessment order passed under Section 143(3) of the Act contains a reference to the claim of deduction under Section 80IA of the Act. Merely because while framing assessment for the subsequent year, the Assessing Officer noticed certain irregula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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