TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 136
X X X X Extracts X X X X
X X X X Extracts X X X X
....rties, the petition is taken up for final hearing. 3.By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : "(a) quash and set aside the impugned notice at ANNEXURE-A to this petition. (b) pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at ANNEXURE-A to this petition and stay further proceedings for the Asst. Year 2011-12. (c) any other and further relief deemed just and proper be granted in the interest of justice. (d) to provide for the cost of this petition." 4.Brief facts of the case are as under : 4.1) The petitioner, a Company incorporated under the provisions of the Companies....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Court by preferring Special Civil Application No.16338/2017 wherein this Court vide order dated 29.1.2018 quashed the notice for reopening the assessment. 4.6) The respondent thereafter issued the impugned notice dated 31.03.2018 under section 148 of the Act, 1961 to reopen the case of the petitioner for the assessment year 2011-2012 on the same facts as that of assessment year 2010-2011 for denying the deduction under section 80IB(8A) of the Act, 1961 on the ground that the certificate issued by DSIR could not have been accepted by the Assessing Officer so as to satisfy that the assessee company has carried out any research and development work either for self or for others which is foundation for availing deduction under the said ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cal and in the reasons recorded in the assessment year 2011-2012, the basis for reopening the case is the same and therefore, the impugned notice deserves to be quashed and set aside. 5.1) Learned Senior Advocate Mr. Tushar Hemani further submitted that the impugned notice under section 148 is issued beyond a period of four years and as per the proviso to section 147 of the Act, 1961 as it existed at the relevant point of time, such action of reopening can be beyond a period of four years only if there is a failure on part of the petitioner to disclose truly and fully all material facts necessary for the assessment year 2011-2012. It was submitted that for the purpose of claiming deduction under section 80IB(8A) of the Act, 1961, the peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ni submitted that on merits also the petitioner is eligible for claim of deduction under section 80IB(8A). 5.4) It was submitted that the respondent has no jurisdiction to issue the notice beyond a period of four years as per the proviso to section 147 in absence of any failure on part of the petitioner to truly and fully disclose all material facts necessary during the course of assessment under section 143(3) of the Act, 1961. 6.On the other hand learned advocate Mr. Karan Sanghani appearing for M.R. Bhatt and Co. for the respondent submitted that the respondent has issued the impugned notice under section 148 of the Act, 1961 for reopening the assessment of the assessment year 2011-2012 as new facts came to the knowledge of the Assess....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ceiving the approval of DSIR was ready to do research and development work however as per the details submitted by the petitioner, the petitioner did not derive any income from research and development activity including during the year under consideration and therefore, the petitioner is not entitled to get deduction under section 80IB(8A) of the Act, 1961. It was therefore, submitted that the respondent had seen tangible material to show that income had escaped assessment. It was submitted that mere certificate issued by DISR cannot be a conclusive proof for granting deduction for research and development under section 80IB(8A) of the Act, 1961. It was therefore, submitted that petition may be dismissed as the respondent authority has rig....