TMI Blog2021 (6) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the assessee. It is not a mere presumption in the present case by the assessee. The presumption has got a valid reason because the assessee is holding a valid approval obtained from the STPI and the power to grant approval was delegated to the Directors of STPI by IMSC. It is not as if the assessee claimed exemption under Section 10B without any such approval. It is a case where the order of approval, which was validly granted, was produced before the Assessing Officer at the time of scrutiny and the Assessing Officer also accepted the approval order and granted exemption. Thus, the reason stated in the impugned proceedings that the assessee committed a mistake cannot be accepted. Assessee was possessing a valid approval which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent, rejecting the reasons furnished for reopening of assessment in proceedings dated 15.11.2016, is under challenge in the present writ petition. 2.The petitioner is an assessee engaged in the business of design, manufacture, supply, erection and installation of lifts and supply, erection and installation of escalators. It is engaged in manufacture and export of computer software which is a 100% export oriented unit duly approved vide proceedings dated 28.02.2002 under the Software Technology Park Scheme of the Government of India which was issued under the delegated power of the Directors of Software Technology Parks of India (STPI) by Inter Ministerial Standing Committee (IMSC) vide letter dated 24.06.1993. 3.There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roval granted by the STPI, pursuant to the delegation of powers conferred on them by the IMSC, is valid for the purpose of claiming exemption under Section 10B of the Act. Thus, the assessee had not committed any act of suppression or omission at the time of filing of returns or at the time of scrutiny. Admittedly, the reopening of assessment proceedings are initiated beyond the period of four years and within a period of six years. Undoubtedly, if the reassessment proceedings are initiated within a period of four years, then the scope is wider. If the reassessment proceedings are initiated beyond the period of four years, then the conditions stipulated in the provisions are to be satisfied. 7.The learned counsel for the petitioner reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Counsel is of an opinion that the assessee, from and out of his own mistake, is attempting to escape from the reassessment proceedings and therefore, the writ petition is liable to be rejected. 11.This Court is of the considered opinion that the respondent- Department are shifting the blame on the assessee. Whether such a stand taken beyond the period of four years can be sustained with reference to the conditions stipulated under Section 147 of the Act is the issue to be considered. 12.Let us now look into the conditions stipulated under Proviso to Section 147 of the Act, which contemplates that where an assessee under sub-Section (3) of Section 147 or Section 147 has been made for the relevant assessment year, no action shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal authority. 15.Question may arise, if certain non-disclosure can be a ground for reopening. In this regard, absolutely there is no bar for reopening of assessment within a period of four years under Section 147 of the Act and if the reopening of assessment is to be made beyond four years, then it must be established that the assessee has not disclosed fully and truly all material evidence with an intention to escape from the payment of tax. Mere nondisclosure is insufficient in view of the fact that the assessee may have certain opinions in the matter of furnishing certain details to the Assessing Officer. Therefore, the motive or intention on the part of the assessee for such non-disclosure is also a material ground to be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing a valid approval which was produced before the Assessing Officer and if a ratification is to be obtained, then the Assessing Officer, at the time of scrutiny, ought to have directed the assessee to get any such ratification certificate for the purpose of grant of exemption under Section 10B which the Department had not done. Thus, it was a mistake or omission committed by the Assessing Officer at the time of passing of the original assessment order. Even in such cases, if the reopening of assessment is made within a period of four years, then there is a ground for the Department to reopen the same. However, in the present case, the reopening of assessment is made beyond the period of four years and therefore, the statutory requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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