2014 (3) TMI 1124

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.... Income Tax Act 1961 [in short the "Act"]. 2. In these two appeals of assessment year 2006-07 i.e in ITA No.116/Mds/2014, the Revenue challenges order of the CIT(A) holding the assessee eligible for deduction under section 80IA. In ITA No.117/Mds/2014 it is aggrieved against order of the lower appellate authority holding that reopening in question is invalid being hit by first proviso of section 147 of the Act. In the course of hearing as well, the Revenue reiterates the pleading and prays for acceptance of both appeals. 3. No one has come present on behalf of the assessee. An adjournment petition has been moved stating that its authorized representative is out of the country. However, there is no clarification forthcoming as to who repre....

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.... latter arguments by observing as follows:-  "6.0. I have considered the submissions of the assessee and the material available on record. The assessee has raised an objection regarding the validity of the reopening of the assessment on the ground that the reopening has been made after the lapse of 4 years and that there is no failure on the part of the assessee to disclose any material facts. On going through the case records of the assessee it is seen that the assessment was completed originally u/s143(3) on 10/06/2008 and subsequently reopened u/s 148 on 30.3.2011. Therefore, the reopening has been done within the 4 year limit and the assessee's objections are factually incorrect. Therefore, this ground is dismissed and the reopen....

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....s filed by the Revenue, it is noticed that its mere argument is that against the decision of the hon'ble jurisdictional high court, special leave petition before the apex court is pending. In our view, merely because the Revenue's special leave petition is pending does not form a valid ground to adopt a different approach in the impugned assessment year in absence of any distinction on facts being pointed out. In assessment year 2004-05 (supra) the issue has travelled upto the 'tribunal' and stands decided in assessee's favour. Thus, in the impugned assessment year, we adopt consistency and affirm the findings of the CIT(A) holding the assessee eligible for deduction under section 80IA of the Act. The ITA No.116/Mds/2014 is dismissed. 8. N....

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.... depreciation in order to compute the income eligible for deduction u/s 80IA. However, it is noticed that the reopening has been done not within 4 years from the end of the relevant assessment year. There is no failure on the part of the assessee to disclose any material facts. In view of same, the reopening is bad in law. Since the reopening is held as bad in law the issue of applicability of section 80IA is not considered on merits. Therefore, the appeal is allowed.'' Therefore, the Revenue is in appeal. 10. We have considered arguments of the Revenue and gone through the case file. There is no dispute that this re-opening has been taken recourse to by the Assessing Officer after four years of finalizing 'regular' assessment. Under 1st ....