TaxTMI 
TaxTMI 
2014 (10) TMI 224
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....Act), seeking to reopen the assessment for the Assessment Years (A.Y.) 1999-2000 and 1998-1999 respectively; and (b) Two orders dated 10th March, 2006 (one for each assessment year) rejecting the Petitioners objections to the issue of the impugned notices dated 2nd and 3rd February, 2005 for A.Y. 1998-99 and 1999-2000. 2. It is an admitted position between the parties that the facts and the issues involved in both the Petitions are identical, save and except change in the quantum of figures being different in two Assessment Years involved. Therefore, for the sake of convenience, we shall refer to the facts stated in Writ Petition No.877 of 2006 relating to A. Y. 1998-99 which are as under:- (a) The Petitioner, inter alia, carried on busi....
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....80HHC on the same. 2 It is observed that in the assessment order, the issue whether the assessee is entitled to claim deduction u/s. 80HHC on DEPB receipts or not, was not dealt. 3 DEPB receipts are covered u/s. 28(iv) of the I.T. Act. In this regard, the Central Board of Direct Taxes vide its Circular Vide F. No.153/93/2004/TPL dated 08.09.2004 has stated as under: "It has been concluded that section 80HHC provides for deduction from the total income in respect of profits derived from the export of goods or merchandise which are realized in convertible foreign exchange and not in respect of incidental income arising through a Government Scheme. Further, the elaborate scheme of computation of the deduction provided u/s. 80HHC(3) of the I....
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....essment was on mere change of opinion. It was, therefore, submitted that the notice was without jurisdiction and same be withdrawn; (f) However, the Assessing Officer by an order dated 10th March, 2006, rejected the Petitioner's objections to reasons for reopening of Assessments. The Assessing Office held that, prima facie, it appears that the Petitioner had failed to disclose fully and truly all details of the nature, character and the modus of earning DEPB entitlement in its return of income. 3. The Petitioner's challenge to the above proceedings for reopening of assessments for A. Y. 1998-99 and 1999-2000 is that, the same are without jurisdiction. 4. Mr. J. D. Mistry, learned Sr. Counsel appearing with Mr. Kudalkar, for the P....
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....49 in favour of the Petitioner. Consequently, the entire exercise of reassessment proceedings would be an academic exercise in view of the law declared by the Supreme Court in Topman Exports (supra). 5. As against the above, Mr. Pinto, learned Counsel appearing for Respondent-Revenue in support of the impugned notices submit as under:- (a) There has been a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment, inasmuch as, the nature and character of the DEPB entitlements had not been disclosed during the assessment proceeding. Therefore, the impugned notices are valid; and (b) The fact that the decision of the Supreme Court in Topman Exports (supra) would conclude the issue in ....
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.... in the Assessment Order. 7. Mr. Pinto, learned Counsel appearing for Respondent-Revenue urged that there was a failure on the part of the Petitioner and in support thereof places reliance upon the affidavit in reply dated 7th April, 2006 filed by the Assessing Officer. In the affidavit, it is stated that the assessee had failed to disclose whether the CBDT entitlements were utilized in business against import or sold in the market at the premium. The affidavit further alleges that the Petitioner has failed to disclose whether the DEPB entitlements on which the deduction was claimed was in fact received from the Directorate General of Foreign Trade or merely claimed on the basis of notional entitlement. Thus, it is submitted that there is ....
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....ing Officer to rely upon the opinion of CBDT to justify issuance of impugned notices. Moreover, reliance upon a subsequent opinion is itself evidence of change of opinion on the part of the Assessing Officer. In any case, the question of opinion on statutory provision is an issue which would only arise, if the statutory jurisdictional requirement of failure to disclose fully and truly all material facts necessary for assessment is satisfied. It is not so in these notices. 10. On the above basis, we would have allowed the Petition but Mr. Pinto, learned Counsel appearing for Respondent-Revenue insisted that his submission that the decision of the Apex Court in Topman Export (supra) while considering the Petition be ignored, as the same has ....