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TMI Blog2021 (6) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... vide a notice dated 26.11.2009. 2. The facts of the case are that originally the petitioner had filed returns on 01.11.2004 and intimation assessment was completed under Section 143(1) of the IT Act on 27.06.2005 accepting the returns filed by the petitioner. In the returns filed by the petitioner, the petitioner had claimed a deduction for a sum of Rs. 22,81,74,356/- under Section 80HHC of the IT Act and exemption on the Export Oriented Unit (EOU) for a sum of Rs. 84,40,581/- under Section 10B of the IT Act. The returns which was accepted by the Income Tax Officer under Section 143(1) of the IT Act was sought to be rectified under Section 154 of the IT Act, 1961. 3. On 19.12.2005 an order was passed under Section 154 of the IT Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While holding so, the appeal filed by the petitioner came to be allowed. 5. During the pendency of the said appeal before the Income Tax Tribunal, a Scrutiny Assessment Order dated 22.12.2006 came to be passed by the Deputy Commissioner of Income Tax under Section 143(3) of the Income Tax Act, 1961, wherein, while computing the book-profit, the deduction claimed by the petitioner under Section 80HHC of the IT Act was denied. As far as the exemption under Section 10B of the IT Act was concerned, the petitioner declared a sum of Rs. 84,40,581/- but squared off the same by bringing forward a loss for an equal amount and therefore stated that there was a total loss from the EOU operation. 6. In the above background, the issued impugned notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of Rs. 23 crores. Under the above circumstances, I have reason to believe that income of more than Rupees Twenty Three Crores chargeable to tax in this case for Asst.Year 2004- 05 has escaped assessment, consequent to the order of ITAT. I am satisfied that this is a fit case for issue of notice u/s 148 read with section 149(i) (b) so as to reassess the income chargeable to tax that has escaped assessment..." 7. It is in the background of the above, the impugned communication dated 01.12.2010, bearing Ref.No.AAACO 0402B/2010-11/82 has been issued by the respondent/Deputy Commissioner of Income Tax, which is sought to be assailed in this writ petition. 8. The learned counsel for the petitioner submits that as far as the issue rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 519 of 2014 which was withdrawn by the Income Tax Department on 12.10.2018 though on the ground of monitory policy in terms of Circular No.3/2018 dated 11.07.2018. 11. In this connection a reference was made on the following cases:- (i) Seimens Information System Ltd., Vs Assistant Commissioner of Income-tax, [2008] 168 Taxman 209 (Bombay). (ii) Commissioner of Income-tax Vs Gupta Abhushan (P.) Ltd., [2009] 178 Taxman 473 (Delhi) (iii) Asteriods Trading and Investments (P.) Ltd., Vs Deputy Commissioner of Income-tax, [2009] 308 ITR 190 (Bombay) (iv) Commissioner of Income-tax-5 Vs Jet Airways (I) Ltd., [2010] 195 Taxman 117 (Bombay) (v) Commissioner of Income-tax, Delhi Vs Kelvinator of India Ltd., [2010] 187 Taxman 312 (SC). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ipca Laboratary Ltd., Vs Deputy Commissioner of Income Tax, 266 ITR 521. 14. It is therefore submitted that the reopening of the assessment qua proposed denial of deduction/exemption under Section 10B alone survives even if the submission of the petitioner is to be accepted. She submits that speaking order passed by the respondents is well considered and all the defences that are available to the petitioner should be raised and therefore that the petitioner should participate in the said proceedings and therefore prays for dismissal of the writ petition. 15. By way of Rejoinder, the learned counsel for the petitioner submits that the order passed under Section 143(1) of the IT Act as rectified merged with the order passed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 961. 19. The facts also indicate that an order was passed for the assessment year 2005-2006 as is evident from the preamble to be final order dated 30.08.2013 of the Tribunal. The Tribunal has noted that the submission of the Respondent that this was not the first time the petitioner had claimed deduction under Section 10B of the IT Act, 1961. It appears that for the aforesaid year, CIT(Appeals)-IV vide order dated 21.09.2010, had observed that, "Since transfer cost of materials between the EOU and all EOU units has been wrongly recorded the deduction u/s 10B should be restricted to the profits of the EOU units after recording the transfer of the material at the correct cost.". 20. From a reading of the above decision of the Tribunal, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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