TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 18
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssment Years ("AYs") 1992-93 and 1993-94. 2. The brief facts leading to the filing of the present writ petition are that the Petitioner was a partner of the M/s Apten Corporation (hereafter the "firm") which was rendering engineering consultancy services to M/s Sumitomo Corporation, Japan in connection with the work undertaken by the latter for power projects in India. 3. For the AYs 1990-91 and 1991-92, the Assessee claimed deduction under Section 80HHB as it then stood for execution of foreign projects. This claim was rejected by the Assessing Officer ('AO'). The matter was carried in appeal by the Assessee to the Commissioner of Income Tax (Appeals) ["CIT (A)"] for AY 1990-91. The said appeal was ultimately rejected by the CIT ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Revenue there was no attempt to re-visit the issue of claim of the Assessee for deduction under Section 80-O of the Act at that stage. 7. For AY 1996-97, the Petitioner again claimed deduction under 80-O. This was rejected by the AO. The assessment order for AY 1996-97 was challenged by the Assessee before the CIT (A) who by an order dated 1st November 1999 reversed the assessment order on this aspect and allowed the appeal filed by the Assessee. It is stated that this order was not further challenged by the Revenue and therefore became final. 8. Thereafter on 31st January 2001, the impugned notice under Section 148 of the Act was issued to the Assessee seeking to reopen the assessment for AYs 1992-93 and 1993-94. 9. The reasons ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sment year in which the assessment orders were passed is the failure on the part of the Assessee to disclose the material particulars. The case of the Revenue is that the agreement between the Assessee and the Sumitomo Corporation was the material document which was not disclosed by the Assessee in the course of the original assessment proceedings under Section 143(3) of the Act for both AYs 1992-93 and 1994-95. 11. The Assessee has, however, contended to the contrary. Due to passage of time it appears that the original files of the assessment proceedings for AY 1992-93 and 1993-94 were no longer traceable. Affidavits were filed in the present case, both by the Assessee as well as by the Respondent No.1, on this aspect. 12. An additional ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that he had applied to inspect the files for AY 1992-93 and 1993-94. The inspection of the file for AY 1992-93 revealed that on 30th January 1995 the Assessee"s authorized representative (AR) Mr. Anuj Aggarwal, CA attended the hearing and was directed inter alia to furnish "Agreement with foreign parties for projects undertaken". It was further noticed that on the subsequent hearing i.e. 22nd February 1995, one Mr. Subodh Gupta, CA attended and filed the details "vide letter dated 8.2.1995". 14. In addition Mr. Atul Y. Chitale, learned Senior counsel appearing for the Petitioner, has produced a photo copy of the letter dated 19th November 1995, written by Apten Corporation to the AO in the course of the assessment proceedings enclosing the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esumed that he proceeded to analyse the tenability of the claim of the Assessee under Section 80-O without bothering to even look at the agreement on the basis of which the claim was made. On the contrary, he appears to have asked the Assessee to produce the agreement, which the Assessee did. In other words, it is not possible for the Court to conclude that the Assessee has failed to produce the agreement before the AO notwithstanding the fact that the AO had specifically asked the AR of the Assessee to produce it before him. 18. It is also claimed that the officer who issued the notice under Section 147/148 of the Act only had the records of the CIT(A) and assessment orders for AYs 1992-93 and 1993-94. Significantly in the affidavit filed....