Pr. Commissioner Of Income Tax - 6 v. Magna Casting & Machine Works P Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL NO. 917 OF 2016 Pr. Commissioner of Income Tax - 6 ..Appellant Versus Magna Casting & Machine Works P Ltd..Respondent ................... Mr. Tejveer Singh for the AppellantMr. Tejveer Singh for the Appellant ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : JANUARY 21, 2019. P.C.: 1.This appeal is filed by the Revenue to challenge theJudgment of the Income Tax Appellate Tribunal ("the Tribunal"for short) dated 21.11.2014. Following questions arepresented for our consideration:- “(i) Whether on the facts and circumstances of the case and inlaw, the Tribunal was correct in law in quashing theproceedings initiated by the Assessing Officer underSection 147 of the Income Tax Act, 1961?law, the Tribunal was correct in law in quashing theproceedings initiated by the Assessing Officer underSection 147 of the Income Tax Act, 1961? (ii) Whether on the facts and circumstances of the case and inlaw, the Tribunal was correct in law in holding that adecision of the Tribunal on the issue could not vestjurisdiction in the Assessing Officer to exercise his powersunder Section 147 of the Income Tax Act, 1961?law, the Tribunal was correct in law in holding that adecision of the Tribunal on the issue could not vestjurisdiction in the Assessing Officer to exercise his powersunder Section 147 of the Income Tax Act, 1961? (iii) Whether on the facts and circumstances of the case and inlaw, the Tribunal has erred in law in not appreciating thejudgments of various High Courts quoted by theCommissioner of Income Tax (Appeals) in Para 3.6 of hisorder in which it has been held that the orders of theSuperior Courts and Tribunals constitute information ortangible material for reopening of assessment underSection 147 of the Income Tax Act, 1961?law, the Tribunal has erred in law in not appreciating thejudgments of various High Courts quoted by theCommissioner of Income Tax (Appeals) in Para 3.6 of hisorder in which it has been held that the orders of theSuperior Courts and Tribunals constitute information ortangible material for reopening of assessment underSection 147 of the Income Tax Act, 1961? 2.The issue pertains to validity of the proceedings forreassessment and concerns the respondent - assessee forthe assessment year 2007-08. The respondent - assessee is100% Export Oriented Unit ("EOU" for short). In the returnfiled for the relevant assessment year, the assessee hadclaimed deduction of profit derived from such exportbusiness in terms of Section 10B of the Income Tax Act, 1961("the Act" for short). A part of such claim of Rs. 4.26 Crore(rounded off) related to the assessee's sale of goods toanother EOU. Through the process of reassessment, theAssessing OfÏcer desired to disallow such claim of theassessee. The Tribunal in the impugned order, however, heldthat the notice of reassessment was invalid in view of thefact that said claim was examined by the Assessing OfÏcerduring the original assessment proceedings. In such order ofassessment passed under Section 143(3) of the Act, the Assessing OfÏcer had recorded following observations : Assessing OfÏcer had recorded following observations : "4.The assessee has made direct export of Rs. 40,53,728/- andexport to EOU of Rs. 10,12,61,099/- and deduction u/S. 10B of Rs.4,26,30,184/- has been claimed on Rs. 10,35,06,894/- (total exportturnover after excluding freight and insurance) received in foreignexchange. It is claimed that the sale from the EOU to another EOUare deemed to be exports. As per chapter 8 of the foreign tradepolicy. As per sec. 8.2 - Categories of supply of goods to EOU shalldeemed to be exports, payment for which is received either in IndianRupees or in Foreign Exchange. The equivalent invoice value offoreign exchange in US-S 22,04,611.75/- has been realized withindue dates, as per Bank Realization Certificates. As regards directexport the equivalent value is US-$ 89,422/- has been realized withindue dates, as per Bank Realization Certificates. Copies of bills,shipping bills and airway bills are furnished by the assessee." 3.On the basis of such discussion, the Tribunal came tothe conclusion that the issue was examined during theoriginal scrutiny assessment and therefore, could not besubject to reassessment proceedings. 4.We are in agreement with the view taken by theTribunal. The Tribunal has correctly placed reliance on adecision of the Supreme Court in the case of CIT Vs.Kelvinator of India Ltd[1]holding that even postamendment in Section 147 of the Act w.e.f. 1.4.1989, the 1(2010) 320 ITR 561 (SC) concept of change of opinion would continue to apply. In thepresent case, the Assessing OfÏcer had examined entireclaim of deduction under Section 10B of the Act. Thisincluded the claim made by the assessee to another EOU.This element of the claim was also examined by theAssessing OfÏcer as can be seen from the above quotedportion of assessment order. Any attempt on his part todisallow the claim would now be based on mere change ofopinion. 5.In the result, no question of law arises. The Tax Appealis dismissed. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]