TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 620
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....sed an order inviting the attention of the Respondents to the averments in the Writ Petition and particularly in para 12. Thereafter, we indicated to the Respondents that in view of authoritative pronouncements by this Court as also by the Hon'ble Supreme Court in the case of Asian Paints vs. Deputy Commissioner of Income Tax and Anr. reported in (2008) 296 ITR 90 and in the case of GKN Driveshofts (India) Ltd. vs. Income Tax Officer reported in (2003) 259 ITR 19, the order passed on 12th February, 2015 rejecting the objections should have been communicated and the Respondents thereafter ought not to have proceeded with for a period of four weeks and in pursuance of the impugned notice. Since the order of assessment dated 27th February, 2015 is assailed on the ground that this direction of the Division Bench of this Court and the Hon'ble Supreme Court has not been followed, we had called upon the Respondents' Counsel then appearing to take appropriate instructions and inform the Court as to whether that assessment order should be set aside by consent or appropriate corrective steps would be adopted. 5) The matter was placed today for passing orders, because we were not....
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....ate corrective steps have been taken and the Principal Commissioner has issued clear directives to all Assessing Officers to abide by the law laid down by the Hon'ble Supreme Court in the case of GKN Driveshofts (India) Ltd. (supra) and equally by this Court in the case of Asian paints Ltd. (supra) and Aroni Commercials Ltd. vs. Deputy Commissioner of Income Tax reported in (2014) 44 Taxman 304. It is in these circumstances that we have proceeded to ignore the assessment order and on perusal of the notice under section 148 of the IT Act as well we are satisfied that this is a fit case for interference in our Writ Jurisdiction. 7) Turning to the legality and validity of the notice under section 148 of the IT Act and the proceedings in pursuance thereof, we find that the notice is issued to reopen the assessment for the assessment year 2007-08. The reasons for the same are recorded at page 198 of the paper book. We have proceeded on the footing that these reasons have been recorded on 27th March, 2014 and they reflect the satisfaction of the Assessing Officer. 8) In the present case, the Assessing Officer has issued notice under section 148 of the IT Act to reopen the assessme....
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....,05,170/. The Petitioner company is engaged in the business of development and export of software. The Petitioner pointed out that the return of income, which was furnished for the assessment reflected the deduction under section 10A of the IT Act. There is a Pune Unit of the Petitioner and there is a Hyderabad Unit. The Petitioner pointed out that the deduction under section 10A of the IT Act was elaborated in Schedule 10A. The deduction in respect of Units located in Software Technology Park, namely Undertaking No. 1 and Undertaking No. 2 have been disclosed with figures. In the Schedule 'BP', "Income from Business or Profession", the deduction under section 10A of the IT Act was disclosed and it was pointed out that during the course of assessment proceedings, there was a questionnaire and which was forwarded to the Petitioner Assessee. This was attached to a notice under section 142(1) of the IT Act dated 14th July, 2010. That raised a specific query in relation to the deduction claimed under section 10A of the IT Act. The query is also reproduced in the Petitioner's letter dated 12th December, 2014. The response to this query is contained in the Petitioner's le....
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.... pointed out on 2nd March, 2015 that it is not possible for them to waive their right to seek redressal against the order, which is stipulated by law, namely of dealing with their objections. They, therefore, informed the Assessing Officer that if he proceeds and passed an order of reassessment in furtherance of the impugned notice, that course is impermissible. He should first deal with the objections and in the event he is inclined to reject them, he shall not proceed further for a period of 4 weeks. That is equally the communication at page 226 of the paper book. 10) However, we find that while the objections were dealt with, an order has been passed. That order reads as under: " GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE 14(1)(1) & 14(1)(2), ROOM NO. 460, AYAKAR BHAVAN, MAHARSHI KARVE MARG, NEW MARINE LINES, MUMBAI - 400 020. TEL : (022) 22039131 EXTENTION 2460 No. ACIT/14(1)(1)/14(1)(2)/MUM/capegemini/201415 date : 12-02-2015 To, CAPEGEMINI INDIA PRIVATE LIMITED, SEP 2, GATE NO. 2, PHIROJSHA NAGAR, WESTERN EXPRESS HIGHWAY, VIKHROLI EAST, MUMBAI - 400 079 Sir, Su....
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....dated shall for all purpose and intents be treated and be deemed to be and accrue as the profits or incomes or expenditure or losses of Kanbay. From the Balance sheet submitted by you for the period under consideration, there is no increase/change in the authorized share capital and in the issue, subscribed and paid up capital as on 31-03-2006 and as on 31-03-2007. The changes in the assets and liabilities could not be verified since no accounts of M/s. Accurum India P. Ltd. were made available by you. However, it is also seen that you have claimed amalgamation expenses totaling to Rs. 22,01,126/for your amalgamation with M/s. Accurum India Limited. Hence, an adhoc disallowance in this respect is proposed to be made. 3. Regarding deduction claimed under section 35DD : You have claimed deduction of professional expenses of Rs. 2201126/incurred in connection with amalgamation with Accurum India Private Limited as a revenue expense citing Supreme Court judgment in the case of Bombay Dyeing & Manufacturing Co. Ltd. [219 ITR 521 SC 1996]. This is not in order, since the decision relied upon by the assessee is prior to the introduction of specific section 35DD which provide for amortiza....
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....o comply with the mandatory precondition. The reasons recorded did not reflect that there is any failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment. Mr. Pardiwalla sought to justify the course adopted by the Petitioner/Assessee during the course of the original assessment by relying on a Division Bench Judgment of this Court in the case of Hindustan Uniliver Limited vs. Deputy Commissioner of Income Tax reported in (2010) 325 ITR 102. 13) As far as the Respondents are concerned, they only rely upon the record, namely, the reasons, copy of which is at page 198 of the paper book and the order dismissing the objections. The affidavit in reply, as noted above, does not deal with para 12 of the Writ Petition at all. The affidavit in reply proposes to deal with the deduction and claimed by the Petitioner on merits. The affidavit admits that there was a questionnaire issued by the Assessing Officer in the original assessment but states that the same was a general one. The Petitioner has replied to this questionnaire and submitted general information. According to the Respondents, the Petitioner did not give information regard....
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....ed and were on record, then, one fails to understand as to why this notice has been issued. From the reasons itself, it is apparent that it is issued to revisit this claim of deduction under section 10A of the IT Act and as put forward by the Petitioner/Assessee. If the deduction under section 10A of the IT Act is allowable on the net profit derived by the Assessee company from eligible units, after setting off lossess from other eligible units, then, it is apparent that all the particulars and profits were before the Assessing Officer at the time of the original assessment. The Petitioner has, while disputing the reasons recorded and raising objections thereto, pointed out in details as to how the relevant facts were before the Assessing Officer. We do not find any material to the contrary and which falsifies the Petitioner's assertions in the letter dated 12th December, 2014 raising specific objections to the reasons recorded for reopening the assessment under section 147 of the IT Act. The affidavit in reply is completely silent with regard to furnishing of these details and by the Petitioner. From the affidavit in reply, we have taken specific paragraphs, where the Petition....