2013 (5) TMI 441

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....upta, JM: The department has filed appeal i.e. ITA No.5746/Mum/2011 against the order of learned CIT(A) for the assessment year 2005-06, whereas the assessee has filed Cross Objection i.e. CONo.95/Mum/2012 for the same assessment year. 2. Since common issues are involved in both the cases, therefore, for the sake of convenience, both the cases have been heard and disposed of by this consolid....

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....e. Thereafter assessment under Section 147/148 was reopened by observing that deduction under Section 80IB is not allowable on the amount of disallowance under Section 40(a)(ia) of the Act. Accordingly, it was observed by the AO that to this extent income has escaped assessment. Thereafter assessment was reopened and the impugned addition was made. 5. The assessee preferred appeal before the le....

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.... record, we found that there is no merit in the appeal of the department, whereas the assessee deserves to succeed in its cross objection. The AO specifically mentioned that the deduction is allowable in respect to disallowance under Section 40(a)(ia) of the Act. The AO has observed in his order that as per items in the report of auditor in form 3CD under Section 44AB, the business income is compu....

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....ur view, this is a clear cut case of change of opinion as one AO has allowed deduction by considering the fact that disallowance of expenditure under Section 40(a)(ia) has been made by assessee himself and, therefore, business income was increased and on business income, the deduction is allowable. Therefore, in our view, the reopening of the assessment was bad in law. Accordingly, we quash the re....