TMI Blog2022 (5) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued as in respect of which the assessee has not truly and fully disclosed all the material facts leading to escapement of income. In fact, the assessee has disclosed all the material facts in respect of two items on the basis of which the AO formed his belief u/s 148 of the Act. Under these facts and circumstances, we find merits in the contentions of the Ld. A.R. that the reopening was made in violation to provisions as contained in first proviso to section 147 of the act which stipulates that reopening cannot be made where the assessment was framed u/s 143(3) after a period of four years from the end of relevant assessment year if the escapement of income has occurred due to nondisclosure of material facts by the assessee which le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 for the assessment year 2009-10. 2. The assessee has challenged the order of Ld. CIT(A) on legal issues as well as on merit. The ground raised on jurisdictional issue are ground nos. 1 to 4 wherein the order of Ld. CIT(A) has been assailed for the reason that the proceedings u/s 147 of the Act were not quashed by ld CIT(A) which were wrongly initiated by the AO in violation of 1st proviso to section 147 of the Act. 3. Facts in brief are that the assessee filed return of income on 29.09.2009 declaring total income of Rs. 12,45,14,027/- which included deduction u/s 80IA of Rs. 10,44,52,044/-. The assessment was framed u/s 143(3) vide order dated 27.12.2011 accepting the claim of the assessee u/s 80IA of the Act and assessing income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions are also required to be added in computing the book profit u/s 115JB and ii) the assessee has wrongly claimed the deduction u/s 80IA(4)(iii) in respect of Salarpuria Touchstone project to the tune of Rs. 77,19,600/- and therefore the income has escaped to the tune of Rs. 1,71,41,955/-. Finally the assessment was framed vide order dated 13.12.2016 passed u/s 147/143(3) of the Act. 4. The Ld. CIT(A) dismissed the appeal of the assessee on jurisdictional /legal issue by holding that the AO has own bonafide belief on the basis of information available with him and further noted that AO has followed due process of law in the reopening the assessment. 5. The Ld. Counsel of the assessee, at the outset, submitted that the reopenin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computing book profit u/s 115JB and that deduction u/s 80IA of Rs. 77,19,600/- was wrongly allowed in respect of Salarpuria Touchstone. The ld. A.R submitted that the assessee had fully and truly disclosed all the material facts pertaining to these two items in the return of income . Moreover, the assessment was framed u/s 143(3) vide order dated 27.12.2011 and therefore reopening has been made by AO in contravention to first proviso to section 147 of the Act and therefore the reopening proceedings deserves to be quashed. In defense of the argument the Ld. Counsel relied on the decision namely Haldia Petrochemicals Ltd. vs. ACIT in ITA no. 2455/Kol/2019 for AY 2008-09 dated 24.03.2021 which has been passed by the Tribunal after following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Touchstone project. We note that on the basis of above reasons recorded that all the information were duly disclosed in the books of account, audited financial statement and return of income filed by the assessee and it cannot be construed as in respect of which the assessee has not truly and fully disclosed all the material facts leading to escapement of income. In fact, the assessee has disclosed all the material facts in respect of two items on the basis of which the AO formed his belief u/s 148 of the Act. Under these facts and circumstances, we find merits in the contentions of the Ld. A.R. that the reopening was made in violation to provisions as contained in first proviso to section 147 of the act which stipulates that reopening can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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