TaxTMI 
TaxTMI 
2010 (1) TMI 934
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....e. The assessee claimed deduction u/ss.80IA and 80HHC(1) of the Income-tax Act, 1961 [hereinafter referred to as "the Act"] as a supporting manufacturer on the basis of Disclaimer Certificate issued by M/s.Aarti Drugs Ltd. The AO was of the opinion that deduction u/s 80IA has to be given only after allowing deduction u/s 80HHC on a priority basis and it should be allowed on the remainder amount of profit of the business. On appeal, the CIT(Appeals) directed the AO to compute deductions u/s 80HHC and 80IA separately on stand alone basis. Being aggrieved revenue is in appeal before us. 2(ii) At the time of hearing both sides agreed that the issue raised in the present appeal is squarely covered in favour of Revenue by the decision of the ITAT, Delhi 'C' Special Bench in the case of ACIT vs. Hindustan Mint and Agro Products Pvt. Ltd. reported in (2009)(119 ITD 107). 2(iii) We heard both sides and perused material on record. In the case of Hindustan Mint and Agro Products Pvt. Ltd.(supra), ITAT, Delhi 'C' Special Bench had occasion to consider a similar question and have concluded that: "37. We accordingly hold that deduction to be allowed under any other ....
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...., learned Departmental Representative supported the orders of the authorities below. 3(iii) We have heard both sides and perused material on record. We are of the opinion that in the interests of justice, the matter should go back to the AO for fresh adjudication. Therefore, we remit the matter to the AO and direct him to consider all the material furnished before him and pass fresh orders in accordance with law. Needless to say that the assessee shall be given adequate opportunity of being heard. 3(iv) In the result, cross objections are treated as allowed for statistical purposes. 4. C.O. Nos.67(Mum)/2009 and 254(Mum)/2007 (Assessment years: 2000-01 and 2001-02): It is seen from records that there is a delay of 30 days in filing Cross objections for the assessment year 2000-01. The assessee has filed an affidavit stating that it had received From No.36 for assessment years 2001-02 and 2003-04 and not for assessment year 2000- 01 and was in the process of obtaining Form No.36. It is also stated that the assessee had closed its business and currently there are no employees. The assessee had further stated that the delay in filing was due to oversight a....
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.... has not considered the issue of allowance of deduction u/s 80HHC and 80IA in the original assessment. 4(iii) Being aggrieved, assessee is in cross objections for assessment years 2000-01 and 2001-02. Learned counsel for assessee submitted that the original assessment was made u/s 143(3) of the Act. The assessee had submitted all the details regarding its claim of deduction u/s 80HHC and 80IA. In this connection, the learned counsel for assessee drew our attention to the paper book containing the computation of income, filed by him. The AO, after considering all the material allowed the claim of the assessee. Learned counsel for assessee further submitted that the reopening of assessment cannot be done subsequently on the ground that the AO has not applied his mind at the time of making original assessment. No new material or information has come to the notice of the AO. The AO, after forming opinion, allowed the claim of the assessee. Changing of opinion on same set of facts is not permissible under the Act. Once assessment is completed u/s 143(3), it is deemed that the AO has applied his mind and allowed the claim of the assessee. Learned counsel for assessee relied on ....
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....g to the AO he failed to apply his mind to the relevant material in making the assessment order, he cannot take advantage of his own wrong and reopen the assessment by taking recourse to the provisions of s. 147. We find ourself in respectful agreement with the view taken by the Full Bench of the Delhi High Court. 10. It is further to be seen that the legislature has not conferred power on the AO to review its own order. Therefore, the power under s. 147 cannot be used to review the order. In the present case, though the AO has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the AO, nothing new has happened, therefore, no new material has come on record, no new information has been received; it is merely a fresh application of mind by the same AO to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delh....