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TAXAP/1582/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1582 of 2009
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
NANDAN
EXIM PVT LTD - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 28/03/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against judgement of tribunal dated 3.3.2009 raising
following question for our consideration :
“Whether
the Appellate Tribunal is right in law and on facts in confirming the
order passed by the CIT(A) in deleting the addition of Rs.5,69,706/-
made on account of disallowance of excess claim of deduction u/s.
80HHC?”
Respondent
assessee’s return of income was processed under Section 143(3) of the
Income Tax Act, 1961. However, subsequently beyond four years from
the end of relevant assessment year, notice for reopening was issued
by the Assessing officer. Ultimately, the Assessing Officer by his
order dated 5.10.2007 disallowed sum of Rs.9,85,890/- under Section
80HHE of the Act and sum of Rs.5,69,706/- under Section 80HHC of the
Act. Assessee preferred appeal before the CIT(Appeals) raising
several grounds including the ground that reopening of the
assessment itself was bad in law. CIT(Appeals) partially allowed the
appeal of the assessee, confirmed disallowance under Section 80HHE
of the Act but deleted disallowance under Section 80HHC. Assessee
went further in appeal before the tribunal. The Tribunal by impugned
judgement found that reopening itself was invalid. Revenue is
therefore, in appeal before us in the present tax appeal.
We
have perused the orders on record with the assistance of learned
counsel for the Revenue. Tribunal in the impugned judgement after
detailed and elaborate discussion came to the conclusion that
reopening beyond four years was in the present case not permissible.
Tribunal was of the opinion that even reasons recorded by the
Assessing Officer for such reopening show that there was an admission
on his part of mistake committed by him in calculation of deduction
under Section 80HHC and 80HHE. It was found that during the regular
assessment completed on 31.3.2004, the Assessing officer raised
several queries on various issues and assessee had filed detailed
reply. Only thereafter, assessment was completed considering entire
material available on record and discussing all the issues in a
detailed assessment order comprising of as many as 10 pages.
Tribunal also recorded that undisputedly, books of account of the
assessee was statutorily audited and the original return of income
was accompanied by copies of audited accounts and auditor’s report.
It was observed that assessee claimed deductions under Section 80HHC
and 80HHE after filing the necessary details in the prescribed form.
The original assessment order showed that the Assessing Officer has
accepted the assessee’s claim for deduction under Section 80HHE
however, recalculated the deduction under Section 80HHC of the Act
and part of deduction was disallowed. Tribunal therefore, was of the
opinion that there was no failure on the part of the assessee to
disclose fully and truly all material facts.
To
the above factual findings of the tribunal, no contrary material is
pointed out to us. When it is found that assessee had placed before
the Assessing Officer at the time of normal assessment full
materials, assessee could not be blamed for not truly and fully
disclosing the material facts. In facts of the present case, the
Assessing Officer had perused the materials, raised several queries,
consciously allowed certain deductions and disallowed some part.
View of the tribunal, therefore, that in the present case reopening
could not have been beyond four years, is based on facts. No question
of law therefore, is arising for our consideration.
Tax
Appeal is dismissed.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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