TMI Blog2024 (3) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... o allegation in the reasons by Ld. AO that the assessee failed to disclose material facts which were necessary for assessment of income. This condition is mandatory condition since the reopening is beyond 4 years. It could also be seen that the reopening is merely at the behest of revenue audit objection. The prime requirement to reopen the case is that Ld. AO has reasons to believe that certain income had escaped assessment. The formation of belief should be based on tangible material. This condition, in the present case, has not been fulfilled. In the case of CIT vs. Shwing Stetter India P. Ltd. [ 2015 (6) TMI 497 - MADRAS HIGH COURT] held that for the purpose of assumption of jurisdiction u/s 147, the AO must have reason based on materials that there has been an income escaping assessment, which warranted assumption of jurisdiction under section 147. In the absence of any such material indicating escapement of income, the proceedings would be invalid. AO did not record any reason that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. When the AO had failed to record anywhere in his satisfaction or belief that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had produced the entire working of the computation of relief under sec 80IA and the present reworking of deduction u/s 80IA in the reassessment is nothing but mere change of opinion of the Assessing Authority on the same set of facts and hence the reopening is without jurisdiction. 2.4 The Commissioner of Income tax (Appeals) ought to have appreciated that there were no new tangible facts which came to the notice of the Assessing officer justifying reopening of assessment and hence the reassessment is without jurisdiction 2.5 The Commissioner of Income tax (Appeals) ought to have appreciated that deduction under sec 80IA, which was disallowed in the original assessment was subject matter of appeal up-to the High Court and hence the issue of allowance of relief under sec 80IA merged with the Appellate orders and cannot be reassessed u/s 147. 3. Items of business income wrongly considered as 'Other Income' for S.80IA: 3.1 The Commissioner of income tax (Appeals) erred in confirming the disallowance u/s. 80IA claim of the appellant amounting to Rs. 3,06,39,429/- treating the same as other income. 3.2 The Commissioner of income tax (Appeals) erred in not appreciating the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merits. The Ld. Sr. DR controverted the arguments of Ld. AR and supported the impugned order. Having heard rival submissions and upon perusal of case records, our adjudication would be as under. 4. The chronology of events leading to present appeal, as tabulated by Ld. AR, is as under: - SEQUENCE OF Assessment Proceedings Outcome Order Reference Date Income Assessed Tax Assessed Remarks By ACIT 26/12/2008 17,17,02,474 6,80,13,325 Disallowances 80IA - 14,28,54,065 Other Disallowances: Payment to Allegro -50,80,150 Forex loss - Rs. 45,00,613 Travelling expenses - Rs. 40,025 Audit fee - Rs. 2,656 Total: Rs. 15,24,77,509 CIT(A) 24/02/2012 Partly allowed for 80IA Rs. 14,11,72,786/- (Disallowed for Alandur Project - Executed for First STP Co Ltd - Rs. 16,81,278/-) Allowed forex loss - Rs. 45,00,613/- Rectification- Giving effect by ACIT 26/03/2012 2,60,29,075 87,61,385 AO ignored the point regarding liability as per MAT calculation would be higher by 38.97 lakhs TDS credit only Rs. 2,68,30,588/- (Short credit Rs. 6,44,997/-) Refund due Rs. 1,80,69,203/- ITAT 25/01/2017 Department went for appeal against CIT(A) order on our first appeal which was rejected and allowed the claim of deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) r.w.s. 147 on 11-03-2014 adding back excess deduction claimed u/s 80IA. The tax payable by the assessee was re-computed. Since the tax under normal provisions was more than tax on income u/s 115JB, tax under normal provisions was adopted. The Ld. CIT(A), vide order dated 29-02-2016, upheld the order of Ld. AO. The Ld. AO passed giving effect order on 24-05-2016. The assessee as well as revenue preferred further appeal before Tribunal in ITA No.1377 1517/Chny/2016 which was disposed-off vide order dated 02-12-2021. The assessee filed Petition under Rule 11 and assailed assumption of reassessment jurisdiction on the ground that proceedings were bad-inlaw. Considering the same, the appeal was restored back to the file of Ld. CIT(A). The Ld. CIT(A) passed fresh order on 16-02-2023 dismissing assessee s appeal which is in further challenge before us. Appellate Proceedings 5. On legal issues, the assessee submitted that the case was reopened beyond 4 years. The Ld. CIT(A) passed speaking order on 24-02-2012 clearly verifying all projects and allowed deduction u/s 80IA except for Alandur Project. The Ld. AO passed order on 26-03-2012 and allowed deduction of Rs. 14.11 Crores as allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection and had come to prima facie reason to believe that the income had escaped assessment. Therefore, the reopening was valid. On the legal plea of merger of assessment order, Ld. CIT(A) held that Hon ble High Court had not gone into particular items of receipt whether it was eligible for deduction u/s 80IA or not. The issue of misc. income or the issue of computations u/s 115JB was not decided specifically in the appeal. Therefore, this plea was also rejected. On the issue of true and full disclosure, Ld. CIT(A) admitted that individual parts of misc. income were submitted by the assessee on 08-11-2013. However, the assessee did not furnish the basis or exact nature of receipt nor any explanation to the receipt. The said particulars were furnished by the assessee subsequent to the assessment and therefore, it could not be said that the assessee had discharged the onus by furnishing all the material facts necessary for the assessment fully and truly. Accordingly, reopening was held to be valid in law. The claim on merit was also rejected, inter-alia, in terms of decision in Liberty India Ltd vs CIT (317 ITR 218) . Aggrieved, the assessee is in further appeal before us. Our findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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