2019 (7) TMI 1997

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.... year 201011. 2. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for wrong initiation of the proceedings u/s 148 of the Act without compliance of the proviso to Section 147 as there is no allegation in the reasons recorded to issue the notice u/s 148 that there is a failure on the part of the assessee to make full and true disclosure in the return of income which has resulted in escapement of the income alleged whereas the assessee has disclosed the deduction u/s 3 5AD of the Act in the return of income and allowed in the assessment u/s 143(3) of the Act. 3. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for wrong initiation of the proceedings u/s 148 of the Act in case of change of opinion u/s 147 of the Act. 4. That on the facts and in the circumstances of the case the Learned CIT (A) Panchkula has erred in law and facts in upholding the contention of the learned A O for failure to provide any fresh tangible material which has come to....

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....0-11 has been reopened. That even the reasons to believe have not been supplied to the assessee. 5. We have heard the rival contentions on this issue. The Ld. DR in this respect has invited our attention to page Nos.4 to 8 of the Paper Book filed by him and submitted that the A.O. has recorded the reasons that the income of the assessee has escaped assessment for assessment year 2010-11 i.e. the assessment year under consideration. 6. We have gone through the aforesaid documents relied upon by the Ld. DR. We find that in the Performa, which was sent by the A.O. to the Principal Chief Commissioner of Income Tax, Panchkula seeking permission to issue notice u/s 148 of the Act to the assessee, assessment year has been mentioned "assessment year 2010-11". Further the A.O. recorded the reasons second time on 28.10.2015 wherein though in the title the assessment year has been mentioned as "assessment year 2014-15", however, from the reading of the entire document it is apparent that the A.O. has mentioned the assessment year 2010-11. The mention of the assessment year 2014-15 in the title, in our view, is a clerical mistake. Moreover, the Ld. DR has also invited our attention to th....

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....ed 27.03.2013 c) Notice u/s 148 was issued on 28.10.2015. 8. It is evident from the above that re-assessment proceedings were initiated after the expiry of four years from the end of the relevant assessment year and assessment u/s 143(3) had already been framed on the assessee. In such factual circumstances, it is only in the conditions stipulated in the 1st proviso to section 147 that the re-assessment proceedings can be resorted to. A perusal of the reasons recorded by the A.O. reveals that the A.O. has disputed eligibility of the assessee to claim deduction u/s 35AD of the Act. During the assessment proceedings for assessment year 2012-13, the A.O. noticed that the assessee had claimed deduction u/s 35AD of the Act while the assessee had been running its business for so many years. The A.O. was of the view that the deduction u/s 35AD of the Act could be allowed only for prior period of commencement of the specified business. He accordingly, on the basis of his opinion formed for assessment year 2012-13, reopened the assessment for the assessment year under consideration. There is no allegation that the assessee had not fully and truly disclosed all the material facts....

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....appeal are accordingly, dismissed. Ground No.5: 11. Vide ground No. 5, the assessee has pleaded that the A.O. has made the assessment in question without disposing off one of the preliminary objections i.e. preliminary objection No. 6 taken by the assessee. The Ld.Counsel for the asssessee himself has placed on the file the order dated 17.2.2018 of the A.O. on the preliminary objections. We find that the plea taken by the assessee vide preliminary objection No. 6 has been duly considered by the A.O. in the order dated 17.2.2016 while deciding point Nos. 3 and 4 of the said objections vide order dated 17.2.2016 on the preliminary objections. In view of this, there is no merit in this ground and the same is accordingly dismissed. Ground No.6: 12. This ground pertains to the merit of the case. 14. The brief facts relevant to the issue are that the assessee has claimed deduction u/s 35AD of the Act from its profits on account of construction of warehouses in different Districts of Haryana, however, the AO disallowed the deduction observing that as per the proviso to Section 35AD of the Act, the expenditure incurred wholly and exclusively for the purpose of any specified ....