AI Drafter 
TaxTMI 
TaxTMI 
2018 (6) TMI 214
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....eveloped a Special Economic Zone (SEZ) in Nagpur district. For the assessment year under dispute assessee filed its return of income on 24.09.2008 declaring Nil income after claiming deduction under Section 80IAB of the Act. The assessment in the case of assessee was completed under Section 143(3) of the Act on 30.11.2010 determining the total income at Rs. 8,86,16,552/- after reducing the deduction claimed under Section 80IAB of the Act. Subsequently, the AO, having found that assessee's claim of deduction under Section 80IAB in respect of income earned from house property has been allowed in the original assessment, was of the view that the said income having not been derived from the business of development of infrastructure was not eligible for deduction under Section 80IAB. Accordingly, he was of the opinion that there is escapement of income due wrong allowance of assessee's claim under Section 80IAB in respect of house property income. Thereafter, recording reasons AO reopened the assessment under Section 147 of the Act by issuing notice under Section 148 of the Act. During the assessment proceedings AO noticed that in the original assessment proceedings the AO has brought t....
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....ent order to be bad in law and void. Aggrieved, Revenue is in appeal before us. 5. The learned Departmental Representative (D.R.), though, accepted the fact that during the original assessment proceedings the AO has enquired into assessee's claim of deduction under Section 80IAB, however,he submitted that AO has not specifically examined whether the income derived from house property is eligible for deduction under Section 80IAB of the Act. That being the case, in the original assessment order AO did not form any opinion with regard to allowability of deduction under Section 80IAB of the Act in respect of house property income. He submitted, the issue which was not touched upon or decided in the original assessment and was considered in the reassessment proceedings, will not lead to change of opinion. He submitted that if the AO acts according to law, reopening of assessment under Section 147 is valid. He submitted that deduction under Section 80IAB of the Act is not legally allowable on house property income. Therefore, the AO was well within his power to reopen the assessment under Section 147 of the Act to deny the benefit wrongly allowed to the assessee. He submitted that ta....
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.... of original assessment proceedings, the reopening of assessment on the very same issue without any fresh tangible material amounts to change of opinion, hence it is not permissible under the provisions of the Act. He submitted that if there is any mistake or error in the original assessment order the remedy does not lie under Section 147 of the Act which can be utilised under specific conditions and instances, and there are other provisions under the Act to rectify or make good an error made by the AO in the original assessment order. Thus, it was submitted by the learned A.R. that reopening of assessment having been made on a mere change of opinion is invalid. In support of his contention the learned A.R. relied upon the following decisions: - (i) Asteroids Trading & Investment Pvt. Ltd. vs. DCIT (2009) 308 ITR 290 (Bom) (ii) CIT vs. Asteroids Trading & Investment Pvt. Ltd. 320 ITR St. 24 (SC) (iii) Motilal R. Todi vs. ACIT (2016) 47 ITR (T) 49 (Mum) (iv) Golden Tobacco Ltd. vs. JCIT (2016) 48 ITR (T) 132 (Mum) (v) Indu Lata Rangwala vs. DCIT (2016) 384 ITR 337 (Del) (vi) CIT vs. Kelvinator of India (2010) 320 ITR 546 (SC) ....
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....cording his reasons for reopening of assessment. Rather, it is evident that on re-appreciation and re-examination of material available on record during the original assessment proceedings and examined by the AO during the original assessment proceedings, the AO has formed his belief that income has escaped assessment. When from the original assessment order it is evident that the AO has enquired into and examined assessee's claim of deduction under Section 80IAB of the Act, the Department's contention that the AO has overlooked the particular aspect of allowability of deduction under Section 80IAB of the Act in respect of house property income is farfetched and unacceptable. It is difficult to accept that in the original assessment the assessing officer has dealt with the issue of claim of deduction under section 80IAB on piecemeal basis by examining some part of it while overlooking the other. Undisputedly, in the present case the deduction claimed by the assessee under Section 80IAB of the Act in the return of income was subjected to scrutiny in the original assessment proceedings and the AO, after proper application of mind, has computed the deduction under the said provision. ....