TaxTMI 
TaxTMI 
2021 (5) TMI 330
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....petitioner started claiming the deduction under Section 80-IA of the Act from AY 2005-06. In its return of income submitted for the Assessment Year 2006-07, as initially filed on 29.11.2006 and subsequently, revised on 31.07.2007, the petitioner /assessee claimed deduction under Section 80-IA of the Act amount to Rs. 87,29,69,962/-. Subsequently, the return of income has filed for the Assessment Year 2006-07 was selected for scrutiny and notice dated 05.10.2007 was issued under Section 143(2) of the Act. The petitioner / assessee, in response to the said notice, duly filed its written submission dated 30.10.2007, providing details regarding the claim under Section 80-IA of the Act. Relevant documents and extracts thereof were highlighted which would demonstrate that the claim for deduction in terims of Section 80-IA is claimable from any year within 15 years from the date of commencement of operations of the assessee, subject to the cap of 10 consecutive years for availment of the benefit was duly notified and communicated in the submissions made by the petitioner before the respondent. Meanwhile, the return of income was processed under Section 143(1) of the Act, determining total....
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....ains derived from the business. Therefore, the action of the assessee in claiming deduction under Section 80-IA for the Assessment Year 2006-07 to Assessment Year 2009- 10 is not in order. The relevant provisions of Section 80-IA amended by the Finance Act 1999 with effect from 01.04.2000 and the amendment contemplates that "...........any undertaking which has started or starts providing telecommunication services whether basic or cellular, including radio paging, domestic satellite service or network of trunking and electronic data interchange services at any time on or after the 1st day of April 1995 but before the 31st day of March 2000." 4. The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any ten consecutive assessment years out of 15 years beginning from the year in which the undertaking as the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops and industrial park or generates power or commences transmission or distribution of power. 5. W.P.No.6858 of 2015: The petitioner is engaged in the business of providing Telecommunication Services and o....
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....erefore, liable to be quashed. 6. W.P.No.6879 of 2015: The petitioner is engaged in the business of providing Telecommunication Services and operates in the Chennai Circle pursuant to the License granted by the Department of Telecommunications, Government of India. Pursuant to the commencement of business operations during the Assessment Year 1996-97, the petitioner started claiming the deduction under Section 80-IA of the Act from AY 2005-06. In its return of income submitted for the Assessment Year 2009-10, as initially filed on 30.09.2009. The petitioner /assessee claimed deduction under Section 80-IA of the Act amount to Rs. 85,04,61,371/- Subsequently, the return of income has filed for the Assessment Year 2009-10 was selected for scrutiny. The petitioner / assessee, duly filed its written submission dated 17.08.2010, providing details regarding the claim under Section 80-IA of the Act. Relevant documents and extracts thereof were highlighted which would demonstrate that the claim for deduction in terms of Section 80-IA is claimable from any year within 15 years from the date of commencement of operations of the assessee, subject to the cap of 10 consecutive years for av....
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....09-10 as well as the contentions are admitted by the Assessing Officer and the petitioner also clarified the facts and circumstances with reference to documents and evidences, assessment order was passed under Section 143(3) of the Act. Thus, by giving different interpretation, the subject adjudicated and concluded by the Assessing Officer, cannot be reopened under Section 147 of the Act and the same would amount to change of opinion and thus, the writ petitions are to be allowed. 9. The writ petitioner is of an opinion that there are no new facts or materials available on records for the purpose of reopening of assessment. The material facts already adjudicated by the Assessing Officer in the assessment order, sought to be reopened, which is impermissible under the provisions of Section 147 of the Act. 10. The learned counsel for the respondent objected the contentions raised on behalf of the petitioner by stating that it is not the change of opinion. There are concrete materials to arrive a conclusion that there is a reason to believe as required under Section 147 of the Act. Even an under assessment or otherwise is a ground for reopening of assessment. In the present ca....
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....s permissible." Even Explanation 1 clarifies "Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso." Thus, various circumstances are provided for the Assessing officer for reopening of assessment, in the event of identifying any new materials including new assessment or certain facts not adjudicated with reference to certain documents etc., The very purpose and object of reopening of assessment is to ensure that the assessee pay the correct tax as applicable with reference to the provisions of the Act. In the event of any escapement and the Assessing Officer found that certain materials are available for the purpose of reopening of assessment, then it is to be construed that the Assessing Officer has reason to believe and the assessee would get ample opportunity to defend the case in the manner known to law. If the assessee has got certain reasons / clarifications / defense, then all such defense or documents are to be produced before the Assessing officer at the time of assess....
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....% of the profits and gains derived from the business. Therefore, the action of the assessee in claiming deduction under Section 80-IA for the Assessment Year 2006-07 to AY 2009-10 is not in order. The relevant provisions of Section 80-IA amended by the Finance Act 1999 w.e.f.1.4.2000 reads as under: "...........any undertaking which has started or starts providing telecommunication services whether basic or cellular, including radio paging, domestic satellite service or network of trunking and electronic data interchange services at any time on or after the 1st day of April 1995 but before the 31st day of March 2000." The deduction specified in sub-section (1) may, at the option of the assessee, be claimed by him for any ten consecutive assessment years out of 15 years beginning from the year in which the undertaking as the enterprise develops and begins to operate any infrastructure facility or starts providing telecommunication service or develops and industrial park or generates power or commences transmission or distribution of power. The initial assessment years is to be taken as AY 1996- 97 and the assessee is eligible only for 30% of the deduction ....
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....ts. It may be stated that the facts regarding the deduction claim under Section 80-IA, all would have stated by the assessee in the return of income. However, during the scrutiny and while passing that the final order of assessment by the Assessing Officer, which was done based only on the informations provided by the assessee and thereafter, if the authorities identified some materials for reopening of assessment, then they have got every reason to believe that the assessment is to be reopened. In the event of not reopening the assessment, the interest of the Revenue would be prejudiced. Therefore, this Court is of the considered opinion that the petitioner cannot merely say that he has produced all the informations. Certain informations, which were not provided fully and truly caused loss to the Revenue with reference to the deductions made under Section 80-IA of the Act and such materials identified by the Department, while reopening the assessment must be adjudicated with reference to the documents and evidences available and the petitioner is at liberty to defend his case by submitting his objections or by producing documents and evidences. 17. High Court cannot adjudica....