TaxTMI 
TaxTMI 
2017 (3) TMI 747
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.... the income chargeable to tax has escaped the assessment for the year under consideration. 3. Special Civil Application No. 3005 of 2014 has been preferred by the very petitioner of Special Civil Application No. 925 of 2013 for issuance of appropriate direction quashing and setting aside the impugned Notice dated 9th November 2012 issued by the respondent under Section 148 of the Act by which the Assessing Officer on the very ground has sought to reopen the assessment for Assessment Year 2006-2007 alleging inter alia that the income liable to tax for Assessment Year 2006-2007 has escaped the assessment. 4. Facts leading to filing of writ petitions, in nutshell, are as under :- 4.1 That the petitioner-assessee is in the business of owning and operating Container Freight Station [hereinafter referred to as, "the CFS"]. It has established CFS at Drongiri Node, Navi Mumbai. That, the petitioner-assessee's application dated 20th May 2003 for setting up of a CFS was approved by the Ministry of Commerce & Industries vide letter dated 30th June 2003. According to the petitioner-assessee, even the Commissioner of Customs [Exports], Navi Mumbai vide Notification No. 5 of 2004 dated 16....
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..../2003, approved the assessee's proposal for setting up of CFS at Dhronagiri Node. Under the Income-tax act, an assessee can claim deduction u/s. 80IA provided it satisfies the conditions laid down in the Income-tax Act and the circulars issued by the CBDT, from time to time. Such conditions are laid down in circular No. 793, dated 23.06.2000 and 10 of 2005, dated 16.12.2005 and further clarification dated 6.1.2011 issued by the CBDT. The conditions laid down for claim of deduction u/s 80I from A.Y. 2002-03 onwards are contained in the Board's circular No. 10 of 2005, dated 16.12.2005, which is as under; "... for and from assessment year 2002- 03 onwards, structures at the ports for storage, loading and unloading etc, will be included in the definition of "port" for the purpose of sections 10(23G) and 80-IA of the Income-tax Act, 1961, if the following condition is fulfilled ; "the concerned port authority has issued a certificate that the said structures form part of the port". 2. It appears that Jawaharlal Nehru Port Trust had vide its letter dated 29.10.2005 intimated the assessee that the CFS situated on the land, does not belong to the port. This circular was subse....
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....y assessment, after holding due inquiry. It was a scrutiny assessment and after holding necessary inquiry and considering material on the record, the Assessing Officer accepted the claim of the assessee for deduction under Section 80IA of the Act. It is submitted that therefore, the subsequent reopening for the reasons stated is nothing but change of opinion by the subsequent Assessing Officer, and therefore, the impugned notices/reopening of the assessment of concluded scrutiny assessment deserve to be quashed and set-aside. 5.1 It is further submitted by Shri S.N Soparkar, learned counsel appearing on behalf of the petitionerassessee that even otherwise, the impugned notices under Section 148 of the Act are required to be quashed and set-aside as the condition precedent for assumption of jurisdiction under Section 147 of the Act are not satisfied. It is submitted that as such, there was no failure on the part of the assessee in not disclosing the true and correct facts necessary for assessment. It is submitted that whatever the material was required for assessment was already furnished by the assessee and after holding necessary inquiry and considering the material available on ....
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....al Nehru Port Trust dated 29th October 2005 vide which the assessee was intimated that the CFS situated on the land does not belong to the Port was withheld by the assessee, and therefore, suppressed the same, and therefore, the Assessing Officer is justified in reopening the assessment beyond the period of four years. It is vehemently submitted by Shri Desai, learned counsel for the Revenue that if the said letter dated 29th October 2005 would have been produced by the assessee before the Assessing Officer in that case, the Assessing Officer considering the Port Circular No. 10 of 2005 dated 16th December 2005, by which one of the condition provide for benefit under Section 80IA of the Act was that the structures must form part of the Port, the assessee would not have got the benefit under Section 80IA of the Act, as the Assessing Officer might not have granted such benefit. It is submitted that therefore, when the aforesaid vital document/ communication was suppressed by the assessee, the case falls within proviso to Section 147 of the I.T Act, and therefore, the Assessing officer, on the facts and circumstances of the case, is justified in reopening of the assessment beyond the ....