TaxTMI 
TaxTMI 
2014 (3) TMI 220
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....48 of the Income Tax Act, 1961 ("the Act") dated 25 March 2013. By the impugned notice dated 25 March 2013 the Deputy Commissioner of Income Tax (Assessing Officer) seeks to reopen the petitioner's assessment for assessment year 2008-09. 3) The petitioner is established as a 100% Export Oriented Unit (EOU) in Special Economic Zone (SEZ) at Andheri (W), Mumbai, engaged in the business of manufacture and export of gold and diamonds jewellery. The petitioner is entitled to a deduction under Section 10AA of the Act in respect of its income. 4) On 29 September 2008, the petitioner filed its return of income for assessment year 200809 declaring income of Rs.34.75 lacs. Thereafter on 18 May 2010 the Assessing Officer passed an assessment....
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....d 1.04.2003 issued by the RBI for removing the stipulation of time limit for bringing in convertible foreign exchange. However, as per clause (iv) below Explanation (2) to Section 10A of the Act, "export turnover" means the consideration in respect of export by the undertaking of articles or things or computer software received in, or brought into, India by the assessee in convertible foreign exchange within the period of 6 months from the end of the previous year. In view of this, the assessee company was eligible for deduction u/s. 10AA amounting to Rs.25,37,87,678/- (1007449184/1150912684x2899237733) only and not Rs.28,74,51,339/- as allowed in the assessment order. Thus, there is an excess allowance of deduction of Rs.3,36,63,661/-, res....
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....der Section 143(3) of the Act and in view of which all material pertaining to the grounds raised had been provided/furnished by the petitioner before the Assessing Officer. Besides for the earlier assessment years as well as for the subsequent assessment years the petitioner's claim for deduction under Section 10AA of the Act has been allowed. Further reliance was placed upon RBI Circular No.91 dated 1 April 2003 to indicate that there is no requirement to receive consideration within six months of the exports. In view of the above, it was submitted that the reopening notice dated 25 March 2013 under Section 148 of the Act is without jurisdiction and be recalled/withdrawn. 7) By an order dated 12 November 2013, the Assessing Officer ....
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....bove, the proposed reopening of the assessment was only on account of change of opinion. Besides, it was submitted that the export turn over as defined in Section 10A of the Act is being sought to be introduced while interpreting Section 10AA of the Act under which the petitioner is claiming the deduction. This is ex-facie not permissible. Therefore, it was submitted that the notice dated 25 March 2013 is completely without jurisdiction. 9) As against the above, Mr. Pinto learned Counsel appearing for the revenue submits that the reopening of assessment done by notice dated 25 March 2013 for assessment year 200809 is within a period of 4 years from the end of the relevant assessment year. In these circumstances, even if there has been fu....
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....ssessment while issuing the impugned notice dated 25 March 2013. It is well settled that the reason to believe cannot be founded merely on change of opinion. In this case the grounds/reasons recorded for reopening the assessment were not the issues which were considered by the Assessing Officer while passing the assessment order dated 18 May 2010 in respect of assessment year 2008-09. This is evident from the fact that during the assessment proceeding no query was raised by the Assessing Officer with regard to the grounds/reasons now recorded for reopening the assessment under Section 147/148 of the Act. Therefore, there was no occasion for the Assessing Officer to apply his mind to the tangible material to form any opinion with regard to i....