Case Law Details
Briefly stated the facts of the case are : assessment of the assessee qua the assessment year 2005-06 was completed u/s 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’) at an income of Rs.8,48,440/-. The assessee claimed an exemption of Rs. 16,74,971/- inclusive of duty drawback amounting to Rs.3,72,186/- under section 10BA of the Act which was allowed by the Assessing Officer. Subsequently, the AO found that the income chargeable to tax amounting to Rs.3,72,186/- has escaped assessment and consequently, issued the notice u/s 148 read with section 143 (2) of the Act. Shri S.C. Dang, CA appeared and filed reply explaining that the assessee has exported handmade artistic things to the tune of Rs.25,60,368/- and job work at Rs.97,56,374/- and earned duty drawback of Rs.3,72, 186/- and claimed deduction u/s 10BA at Rs.16,74,971/- which has been allowed after due scrutiny. Finding the explanation of the assessee not tenable and by relying upon the judgment cited as Liberty India vs. CIT reported in 317 ITR 218 (SC) disallowed the deduction of Rs. 16,74,971/- earlier allowed by the AO vide order u/s 143(3) of the Act and thereby the assessed the total income of assessee at Rs. 10,85,634/-.
Assessee carried the matter before the ld. CIT (A) who has dismissed the appeal vide impugned order. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
The ld. AR for the assessee challenging the impugned order contended that apparently, this is a case of change of opinion on the part of the AO to invoke provisions u/s 148 of the Act which is not permissible under law and relied upon the judgment cited as CIT Vs Atul Kumar Swami, 362 ITR 693 passed by Hon’ble Jurisdictional High Court and CIT Vs Tupperware India Pvt. Ltd., I.T.A. No. 415/2015 (Del.) order dated 10.08.2015. However, on the other hand, ld. DR relied upon the order passed by the ld. CIT (A).
Now, adverting to the case had hand, a bare perusal of the assessment order under challenge goes to show that the assessment in this case has been reopened to review the applicability of section 10BA of the Act under which assessee had claimed exemption at the time of filing the original return of income qua assessment year 2005-06 on 27.10.2005. Hon’ble Jurisdictional High Court in the case cited as Atul Kumar Swami (supra), relied upon by the assessee, decided the identical issue and the operative part of the judgment is reproduced as under for ready reference :-
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