TaxTMI 
TaxTMI 
2010 (2) TMI 797
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....l facts necessary for the assessment and the Assessing Officer was not in possession of any new information. On this ground also the reassessment proceedings are liable to be set aside. 3. Aggrieved by the order of reassessment, the assessee approached the first appellate authority and objected the validity of the very reopening itself. It is stated that subsequent to the passing of the assessment order the assessee received a notice u/s.263 on 13.3.1992 and on considering the assessee's objection to the notice u/s.263, proceedings were dropped by the CIT vide order dt.25.3.1991. Subsequently, the Assessing Officer initiated reassessment proceedings u/s.147 by issue of notice u/s.148 dt.27.3.1991 on the ground that the income had escaped assessment. The assessee company filed a return in compliance to the said notice declaring the same income. According to the assessee even after filing return in pursuance to the notice the reasons recorded by the Assessing Officer was not provided to the assessee to enable it to validly challenge the proceedings though it was admitted that the Assessing Officer had orally intimated that these were the same as mentioned in the notice u/s.....
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....Baba Abhai Singh vs. DCIT (253 ITR 93) (Delhi); and (ii) Dr. Amin's Pathology Laboratory vs. P. N. Prasad and Others (202 ITR 678) (Bom) While rejecting the assessee's contention Commissioner of Income-tax (Appeals) also held such a reason can be arrived based on the material available on record and need not be on the basis of certain information received after the assessment was completed. Aggrieved by the above order assessee is in appeal before the Tribunal. 4. The learned counsel for the assessee briefly submitted that the assessee filed return on 30.6.1987, then revised return was called for and filed on 19.12.1988. The return was finally accepted on 31.3.1989. Subsequently notice u/s.263 was issued on 13.3.1991. Assessee's counsel invited our attention to page 9 of the paper book, that is the reasons for issuance of notice and reply by the assessee exhibited at pages 11 to 13. Page 14 is the CIT's order u/s.263 dropping the proceedings. Page 15 is the notice issued u/s.148. It is mentioned in the notice, the reason for reopening as "for same points as per notice u/s.263". The learned counsel for the assessee submitted the Assessing Officer had no....
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....he reasons were made available to the assessee only after completion of the assessment order. The counsel submitted that this does not amount to supplying the reasons to the assessee, because, the assessee could not defend properly. For the proposition he relied on the decision of the Tribunal in the case of Videsh Sanchar Nigam Ltd., Mumbai vs. JCIT in ITA.7626/Mum/2004, dt.30.10.2009, for the ay 1994-95. He particularly brought our attention to page 39 of the order where the issue is discussed. 7. Coming to the second point, i.e., dropping of the proceedings by the CIT and for the same reason the Assessing Officer cannot reopen the assessment, the learned counsel relied on the decision of the Madras High Court in the case of CIT vs. Ramachandra Hatcheries (2008) 305 ITR 117 and submitted that this was a case wherein the Hon'ble High Court upheld the decision of the Tribunal and held that the Assessing Officer has no jurisdiction to reopen an assessment u/s.147 so as to circumvent the order of the CIT which had become final unless and until the order was set aside by the process known to law. The counsel submitted this was a case wherein the CIT on the same facts dropped....
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....aimed there is nothing wrong. 11. Coming to section.43(B), the counsel submitted the issue is to be looked on the basis of pre-amended law and, therefore, the assessee's claim was in accordance with law. The submission of the assessee with regard to this point is as under: "As regards the deduction u/s.80HHB of Rs.6,33,658/-, we submit that we have created a reserve for an amount equivalent to 50% of the profit and gain from the projects outside India. It is further submitted that we have not only deducted from the Profit and Loss Account for the year under consideration for creating reserve but also transferred Rs.6,50,000/-from the general reserve to the foreign project reserve account as general reserve consists an amount transferred from the profit and loss account for the previous year relevant to the assessment year 1987-88 and therefore, we submit that the deduction u/s.80HHB has been correctly allowed by computing the total income." The counsel submitted the assessment year ended on 30.4.1986. At that time, the requirement was to create reserve of 25% which was subsequently increased to 50% which the assessee complied with as and when the law r....
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....nt is not tenable because there was no 143(3) order. He relied on the decision of the Hon'ble Supreme Court in GKN Driveshaft (supra). When the CIT dropped the proceedings u/s.263 he has not formed any opinion. Satisfaction was not recorded. He submitted there is no need of a scientific reasoning for reopening. Satisfaction is sufficient, he submitted. 15. Replying to the above, the assessee's counsel submitted that the decision of the Madras High Court was cited for the reason that if the Assessing Officer does not like the view expressed by the CIT/Commissioner of Income-tax (Appeals), even then he cannot over look their view. In this case, the CIT dropped the proceedings holding that there is no escapement of income. The senior counsel for the assessee submitted, the assessment was reopened by the CIT only because he had a different view from the earlier assessment order. It is only a difference of opinion. 16. Hearing the rival submissions and going through the orders of the authorities and the decisions cited, we are of the view that the reopening done by the Assessing Officer in the premises of the above facts cannot be upheld. In the case of Videsh Sancha....