SAMRIDDHI INDUSTRIES LIMITED, Sangli V. CIT (A), Kolhapur

ITA 212/PUN/2011

• Counselvise Citation: 21224514 RSA 2011
• Duration Of Justice: 2 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-11-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Reopening of assessment; Tangible material; Right to appeal
• Section: 143(3); 80IB; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS. 211 TO 213/PN/2011 (ASSESSMENT YEARS : 2003-04 TO 2005-06) SAMRIDDHI INDUSTRIES LIMITED, PLOT NO. J-98, MIDC, KUPWAD, SANGLI. PAN : AABCM8805D . APPELLANT VS. CIT (APPEALS), KOLHAPUR. . RESPONDENT APPELLANT BY : MR. M. K. KULKARNI RESPONDENT BY : MR. A. K. MODI DATE OF HEARING : 26-11-2013 DATE OF PRONOUNCEMENT : 29-11-2013 ORDER PER G. S. PANNU, AM THE CAPTIONED THREE APPEALS RELATE TO THE SAME ASSE SSEE AND INVOLVE A COMMON ISSUE, THEREFORE THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATE ORDER IS BEING PASSED FOR THE SAKE CONV ENIENCE AND BREVITY. 2. THE AFORESAID CAPTIONED APPEALS ARE DIRECTED AGA INST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), KOLHAPUR DATE D 29.10.2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 13.11.2009 PAS SED BY THE ASSESSING OFFICER, U/S 143(3) R.W.S. 147 OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEARS 2003-04 TO 2005- 06. 3. IN ALL THE APPEALS, THE SUBSTANTIVE DISPUTE RAIS ED BY THE ASSESSEE IS WITH REGARD TO THE ACTION OF THE INCOME-TAX AUTHORI TIES IN DENYING THE CLAIM FOR DEDUCTION U/S 80IB OF THE ACT. IN ALL THE APPEALS, THE REASON ADVANCED BY THE ASSESSING OFFICER TO DENY THE CLAIM OF DEDUCTION IS ON ACCOUNT OF THE FACT THAT THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE DOES N OT QUALIFY TO BE A SMALL SCALE INDUSTRIAL UNDERTAKING WITHIN THE MEANING OF SECTION 11B OF THE ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 ( IN SHORT THE IDR ACT). IN TERMS OF A NOTIFICATION NO. SO-857(E) DATED 10.12.1 999 ISSUED BY THE CENTRAL GOVERNMENT IN EXERCISE OF POWERS CONFERRED BY SECTI ON 11B(1) OF THE IDR ACT, THE TOTAL INVESTMENT IN PLANT & MACHINERY SHOULD NO T EXCEED RUPEES ONE CRORE IN THE CASE OF SMALL SCALE INDUSTRIAL UNDERTAKING . IN THE CASE OF THE ASSESSEE ON THE LAST DAY EACH OF THE PREVIOUS YEAR CORRESPONDING TO THE THREE CAPTIONED ASSESSMENT YEARS, IT IS NOT IN DISPUTE TH AT THE TOTAL INVESTMENT IN PLANT & MACHINERY AS UNDERSTOOD IN THE IDR ACT EXCE EDS RUPEES ONE CRORE. IN VIEW OF THE AFORESAID, IN TERMS OF SECTION 80IB( 14)(G) OF THE ACT, THE INDUSTRIAL UNDERTAKING OF ASSESSEE NO LONGER REMA INS A SMALL SCALE INDUSTRIAL UNDERTAKING AND THEREFORE, THE PROFIT A ND GAINS DERIVED FROM SUCH AN UNDERTAKING BECOMES INELIGIBLE FOR DEDUCTION U /S 80IB(3) OF THE ACT. NOTABLY, SECTION 80IB(2) ENUMERATES THE CONDITIONS WHICH ARE REQUIRED TO BE FULFILLED BEFORE AN INDUSTRIAL UNDERTAKING IS ELI GIBLE FOR DEDUCTION U/S 80IB OF THE ACT AND IN THE CONTEXT OF THE PRESENT CONTROVER SY IT WOULD SUFFICE TO OBSERVE THAT AS PER THE REVENUE, THE CONDITION PRES CRIBED IN CLAUSE (III) TO SECTION 80IB(2) OF THE ACT IS NOT FULFILLED, IN THE ABSENCE OF ASSESSEES INDUSTRIAL UNDERTAKING BEING A SMALL SCALE INDUS TRIAL UNDERTAKING. 4. THE ASSESSING OFFICER AS WELL AS THE CIT(A) HELD THE ASSESSEE INELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT FOR TH E AFORESAID REASONING, WHICH IS SIMILAR TO THE STAND OF THE REVENUE FOR ASSESSMENT YEAR 2006-07 IN THE ASSESSEES OWN CASE. AT THE TIME OF HEARING BEFORE US, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE STAND OF THE REVENUE F OR ASSESSMENT YEAR 2006-07 ON THE SAME ISSUE HAS BEEN ADJUDICATED BY T HE TRIBUNAL IN THE ASSESSEES OWN CASE VIDE ITA NO.1002/PN/2009 DATED 31.03.2011 AGAINST THE ASSESSEE. IT IS ALSO NOT IN DISPUTE THAT THE F ACTS AND CIRCUMSTANCES AND THE REASONING WHICH HAS PREVAILED WITH THE INCOME-T AX AUTHORITIES TO DENY THE RELIEF U/S 80IB OF THE ACT IN THE CAPTIONED ASSESSM ENT YEARS STAND ON IDENTICAL FOOTING TO THAT OF ASSESSMENT YEAR 2006-07, WHICH W AS THE SUBJECT-MATTER OF APPEAL BEFORE THE TRIBUNAL IN ITS ORDER DATED 31.03 .2011 (SUPRA). AS A RESULT, ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT FOR THE CAPTIONED ASSESSMENT YEARS IS LIABLE TO BE ADJUDICATED IN THE SAID LIGHT. 5. SO, HOWEVER THE LEARNED COUNSEL FOR THE ASSESSEE HAS SOUGHT TO RELY ON A JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE C ASE OF CIT VS. DELHI PRESS PATRA PRAKASHAN LTD., (2013) 89 DTR 393 (DEL) TO SA Y THAT ONCE DEDUCTION HAS BEEN ALLOWED IN THE INITIAL ASSESSMENT YEAR, IT CAN NOT BE DENIED IN THE SUBSEQUENT YEARS. IN ORDER TO APPRECIATE THE SAID ARGUMENT THE FOLLOWING DISCUSSION IS RELEVANT. THE PRIMARY PLEA OF THE AS SESSEE BEFORE THE INCOME- TAX AUTHORITIES AS WELL AS BEFORE THE TRIBUNAL HAS BEEN THAT IN THE INITIAL ASSESSMENT YEAR I.E. THE ASSESSMENT YEAR IN WHICH T HE INDUSTRIAL UNDERTAKING OF THE ASSESSEE WAS SET-UP, IT FULFILLED THE CONDIT ION OF BEING A SMALL SCALE INDUSTRIAL UNDERTAKING AND WAS ALLOWED DEDUCTION U /S 80IB OF THE ACT. ONCE THE ASSESSEE FULFILLS THE PRESCRIBED CONDITION IN T HE INITIAL ASSESSMENT YEAR THEN THE ASSESSEE WOULD BE ELIGIBLE FOR THE GRANT O F DEDUCTION IN EACH OF THE SUBSEQUENT YEARS WITHOUT THE CONDITION BEING TESTED AGAIN IN THE SUBSEQUENT YEAR. THE AFORESAID ARGUMENT OF THE ASSESSEE HAS B EEN DEALT WITH BY THE TRIBUNAL IN ITS ORDER DATED 31.03.2011 (SUPRA) IN T HE FOLLOWING WORDS :- 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. WE HAVE ALSO CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIE S BELOW AND ALSO THE CASE LAWS CITED AT BAR AS ALSO THOSE REFERRED IN THE ORD ERS OF THE AUTHORITIES BELOW. THE DISPUTE RELATES TO DEDUCTION CLAIMED UNDER SECT ION 80IB OF THE ACT IN RELATION TO THE PROFITS DERIVED BY THE ASSESSEE FRO M ITS INDUSTRIAL UNDERTAKING. BEFORE PROCEEDING TO ADJUDICATE THE CONTROVERSY, WE FIND IT EXPEDIENT TO REPRODUCE THE RELEVANT PORTION OF SECTION 80-IB AND NOTE ITS SALIENT FEATURES: 80IB(1): WHERE THE GROSS TOTAL INCOME OF AN ASSESS EE INCLUDES ANY PROFITS AND GAINS DERIVED FROM ANY BUSINESS REFERRE D TO IN SUB-SECTIONS (3) TO (11), (11A) AND (11B) (SUCH BUSINESS BEING HEREINAF TER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED, IN COMPUTIN G THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION FROM SUCH PROFITS AND GAINS O F AN AMOUNT EQUAL TO SUCH PERCENTAGE AND FOR SUCH NUMBER OF ASSESSMENT Y EARS AS SPECIFIED IN THIS SECTION. (2) THIS SECTION APPLIES TO ANY INDUSTRIAL UNDERTA KING WHICH FULFILS ALL THE FOLLOWING CONDITIONS, NAMELY:- (I) IT IS NOT FORMED BY SPLITTING UP, OR THE RECONS TRUCTION, OF A BUSINESS ALREADY IN EXISTENCE: PROVIDED THAT THIS CONDITION SHALL NOT APPLY IN RE SPECT OF AN INDUSTRIAL UNDERTAKING WHICH IS FORMED AS A RESULT OF THE RE-E STABLISHMENT, RECONSTRUCTION OR REVIVAL BY THE ASSESSEE OF THE BU SINESS OF ANY SUCH INDUSTRIAL UNDERTAKING AS IS REFERRED TO IN SECTION 33B, IN THE CIRCUMSTANCES AND WITHIN THE PERIOD SPECIFIED IN TH AT SECTION; ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 (II) IT S NOT FORMED BY THE TRANSFER TO A NEW BUSIN ESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE; (III) IT MANUFACTURES OR PRODUCES ANY ARTICLE OR TH ING, NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE LIST IN THE ELEVENTH SCHE DULE, OR OPERATES ONE OR MORE COLD STORAGE PLANT OR PLANTS, IN ANY PART O F INDIA: PROVIDED THAT THE CONDITION IN THIS CLAUSE SHALL, IN RELATION TO A SMALL SCALE INDUSTRIAL UNDERTAKING OR AN INDUSTRIAL UNDER TAKING REFERRED TO IN SUB-SECTION (4) SHALL APPLY AS IF THE WORDS NOT BE ING ANY ARTICLE OR THING SPECIFIED IN THE LIST IN THE ELEVENTH SCHEDUL E HAD BEEN OMITTED. EXPLANATION I: EXPLANATION 2: .. (IV) IN A CASE WHERE THE INDUSTRIAL UNDERTAKING MAN UFACTURES OR PRODUCES ARTICLES OR THINGS, THE UNDERTAKING EMPLOYS TEN OR MORE WORKERS IN A MANUFACTURING PROCESS CARRIED ON WITH THE AID OF PO WER, OR EMPLOYS TWENTY OR MORE WORKERS IN A MANUFACTURING PROCESS C ARRIED ON WITHOUT THE AID OF POWER. 14. FOR THE PURPOSES OF THIS SECTION,-- (G) SMALL-SCALE INDUSTRIAL UNDERTAKING MEANS AN I NDUSTRIAL UNDERTAKING WHICH IS, AS ON THE LAST DAY OF THE PREVIOUS YEAR, REGARDED AS A SMALL SCALE INDUSTRIAL UNDERTAKING UNDER SECTION 11B OF T HE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 (65 OF 1951) . 7. SECTION 80-IB PRESCRIBES DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM CERTAIN INDUSTRIAL UNDERTAKINGS. AS PER SUB-SECTION (1) OF SECTION 80IB WHERE GROSS TOTAL INCOME OF AN ASSESSEE INCLUD ES ANY PROFITS AND GAINS DERIVED FROM THE ELIGIBLE BUSINESS PRESCRIBED IN TH E SUB-SECTIONS THEREOF, THERE SHALL BE ALLOWED IN COMPUTING THE TOTAL INCOME OF T HE ASSESSEE DEDUCTION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO SUCH P ERCENTAGE AND FOR SUCH NUMBER OF ASSESSMENT YEARS IN ACCORDANCE WITH AND A S SPECIFIED IN THE SAID SECTION. SUB-SECTION (2) OF SECTION 80-IB, WHICH IS THE SOURCE OF CONTROVERSY BEFORE US, PRESCRIBES THAT THE SECTION APPLIES TO A NY INDUSTRIAL UNDERTAKING WHICH FULFILLS ALL THE CONDITIONS STATED THEREIN. CLAUSES (I) TO (IV) OF SECTION 80- IB(2) PRESCRIBE THE CONDITIONS REQUIRED TO BE FULFI LLED BY AN INDUSTRIAL UNDERTAKING TO CLAIM A DEDUCTION UNDER SECTION 80-I B. CLAUSE (I) PRESCRIBES THAT THE ELIGIBLE INDUSTRIAL UNDERTAKING IS NOT FOR MED BY SPLITTING UP OR THE RECONSTRUCTION OF A BUSINESS ALREADY IN EXISTENCE; CLAUSE (II) PRESCRIBES THAT THE INDUSTRIAL UNDERTAKING IS NOT FORMED BY THE TRA NSFER TO A NEW BUSINESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE; CLAUSE (III) PROVIDES THAT THE INDUSTRIAL UNDERTAKING MANUFACTURES OR PRODUCES ANY ARTICLE OR THING, NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE LIST IN THE ELEVENTH SCHEDULE TO THE ACT, A PROVISO TO THIS CLAUSE CLARIFIES THAT SUCH P ROHIBITION OF NOT MANUFACTURING OR PRODUCING ANY ARTICLE OR THING SPECIFIED IN ELEV ENTH SCHEDULE SHALL NOT APPLY IN RELATION TO A SMALL SCALE INDUSTRIAL UNDERTAKIN G. EXPLANATIONS 1 AND 2 BELOW CLAUSE (III) ARE NOT RELEVANT FOR OUR PURPOSE AND THEREFORE ARE NOT BEING REFERRED TO. CLAUSE (IV) PRESCRIBES A CONDITION THA T WHERE THE INDUSTRIAL UNDERTAKING MANUFACTURES OR PRODUCES ARTICLES OR TH INGS, IT SHALL EMPLOY TEN OR MORE WORKERS IN A MANUFACTURING PROCESS CARRIED ON WITH THE AID OF POWER; OR TWENTY OR MORE WORKERS IN A MANUFACTURING PROCESS C ARRIED ON WITHOUT THE AID OF POWER. THE OTHER SUB-SECTIONS ARE NOT QUITE REL EVANT FOR OUR PURPOSE AND ARE NOT BEING REFERRED TO. IN ANY CASE, WE MAY REFE R TO SUB-SECTION (14), CLAUSE (G) WHICH PRESCRIBES THE MEANING OF SMALL S CALE INDUSTRIAL UNDERTAKING AS AN INDUSTRIAL UNDERTAKING WHICH IS, AS ON THE LA ST DAY OF THE PREVIOUS YEAR, REGARDED AS A SMALL SCALE INDUSTRIAL UNDERTAKING UN DER SECTION 11B OF THE INDUSTRIES (DEVELOPMENT & REGULATION) ACT, 1951 (65 OF 1951) (HEREINAFTER REFERRED TO AS IDR ACT). ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 8. IT IS NOT IN DISPUTE THAT THE INDUSTRIAL UNDERTA KING OF THE ASSESSEE IS ENGAGED IN THE MANUFACTURE OF PLASTIC P RODUCTS WHICH IS ONE OF THE ITEMS IN THE ELEVENTH SCHEDULE. THEREFORE, IN TERMS OF PROVISO TO CLAUSE (III) OF SECTION 80-IB, ASSESSEE COULD ENJOY THE BE NEFIT OF DEDUCTION UNDER SECTION 80-IB ONLY IN CASE IT IS A SMALL SCALE INDU STRIAL UNDERTAKING WITHIN THE MEANING OF SECTION 80-IB(14)(G) OF THE ACT. IT IS N OT DISPUTED THAT IN THE INITIAL ASSESSMENT YEAR, I.E. THE YEAR IN WHICH THE INDUSTR IAL UNDERTAKING BEGAN TO MANUFACTURE OR PRODUCE ARTICLE OR THING, THE SAID U NIT QUALIFIED TO BE A SMALL SCALE INDUSTRIAL UNDERTAKING. THE FACTUM OF THE ASS ESSEE BEING ALLOWED THE CLAIM UNDER SECTION 80-IB IN THE INITIAL YEAR IS NO T DISPUTED. FACTUALLY, DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE DOES NOT QUALIFY TO BE A SMALL SCALE INDUSTRIAL UNDERTAKING WITHIN THE MEANING OF SECTION 11B OF THE IDR ACT AND THUS IT DOES NOT COMPLY WITH THE PROVISO TO CLA USE (III) OF SUB-SECTION (2) OF SECTION 80-IB OF THE ACT. THE FACTUAL MATRIX TILL N OW IS UNDISPUTED. THE DIFFERENCE BETWEEN THE REVENUE AND THE ASSESSEE STA RTS FROM HERE. AS PER THE REVENUE, SINCE THE ASSESSEE NO LONGER REMAINS A SMALL SCALE INDUSTRIAL UNDERTAKING AND IT BEING ENGAGED IN THE MANUFACTUR E OF AN ARTICLE LISTED IN ELEVENTH SCHEDULE, ITS CLAIM FOR DEDUCTION UNDER SE CTION 80-IB HAS TO FAIL. IN OTHER WORDS, AS PER THE REVENUE, ASSESSEE DOES NOT FULFILL THE CONDITION PRESCRIBED IN CLAUSE (III) OF SUB-SECTION (2) OF SE CTION 80-IB AND, THEREFORE, THE CLAIM OF DEDUCTION UNDER SECTION 80-IB IS LIABLE TO BE DENIED. ON THE OTHER HAND, AS PER THE APPELLANT THE CLAIM CANNOT BE DENI ED EVEN IF THE SAID CONDITION IS NOT FULFILLED IN THIS YEAR, BECAUSE TH E ASSESSEE HAS FULFILLED THE CONDITION IN THE INITIAL YEAR. AS PER THE APPELLANT , THE CONDITIONS OF SECTION 80- IB ARE REQUIRED TO BE EXAMINED ONLY IN THE INITIAL ASSESSMENT YEAR AND THE SAME HAVING BEEN EXAMINED AND ACCEPTED, IT COULD NO T BE EXAMINED AGAIN BY THE ASSESSING OFFICER DURING THE YEAR UNDER CONS IDERATION. 9. WE HAVE CAREFULLY EXAMINED THE RIVAL CONTENTIONS AND FIND OURSELVES UNABLE TO ACQUIESCE TO THE PLEA OF THE AS SESSEE COMPANY. NO DOUBT, THE CONDITIONS PRESCRIBED IN SUB-SECTION (2) OF SECTION 80-IB ARE REQUIRED TO BE EXAMINED IN THE INITIAL ASSESSMENT Y EAR, HOWEVER, THERE IS NOTHING IN THE PHRASEOLOGY OF SUB-SECTION (2) TO S UGGEST THAT THE CONDITION IN CLAUSE (III) THEREOF HAS TO BE EXAMINED ONLY IN THE INITIAL ASSESSMENT YEAR. WE ARE IN AGREEMENT WITH THE POSITION OF THE APPELLANT THAT IN SO FAR AS CONDITIONS PRESCRIBED IN CLAUSES (I) AND (II) ARE CONCERNED, T HE SAME RELATE TO A POINT OF TIME WHICH CAN ONLY BE EXAMINED IN THE COURSE OF TH E INITIAL ASSESSMENT YEAR. CLAUSE (I) REQUIRES AN EXAMINATION AS TO WHETHER TH E INDUSTRIAL UNDERTAKING IS FORMED BY SPLITTING UP OR RECONSTRUCTION OF A BUSIN ESS ALREADY IN EXISTENCE. CLAUSE (II) RELATES TO EXAMINING WHETHER THE INDUST RIAL UNDERTAKING IS FORMED BY THE TRANSFER TO A NEW BUSINESS OF MACHINERY OR P LANT ALREADY USED IN BUSINESS. EVIDENTLY, THE CONDITIONS IN CLAUSES (I) AND (II) CAN ONLY BE EXAMINED AT THE TIME OF FORMATION OF A UNIT, WHICH IS THE IN ITIAL YEAR. CLAUSE (III), WHICH IS UNDER CONSIDERATION, DOES NOT IMPLY ANY SUCH INTERP RETATION. IN OUR CONSIDERED OPINION, THE IMPORT OF THE CONDITION PRESCRIBED IN CLAUSE (III) IS THAT THE INDUSTRIAL UNDERTAKING OUGHT TO BE A SMALL SCALE UN DERTAKING IN THE YEAR OF CLAIM OF DEDUCTION, BE IT BE THE INITIAL YEAR OR AN Y OF THE SUBSEQUENT YEARS, SO LONG AS IT MANUFACTURES PRODUCTS LISTED IN THE ELEV ENTH SCHEDULE. QUITE CLEARLY, IN THIS CASE ADMITTEDLY THE ASSESSEE IS MA NUFACTURING ARTICLES OR THINGS STATED IN THE ELEVENTH SCHEDULE AND IT DOES NOT QUA LITY TO BE A SMALL SCALE INDUSTRIAL UNDERTAKING IN THE INSTANT YEAR AND, THU S, THE SAID CONDITION IS NOT FULFILLED. 10. MUCH HAS BEEN ARGUED BY THE APPELLANT TO THE EF FECT THAT THE CONDITIONS ARE TO BE VERIFIED ONLY IN THE INITIAL Y EAR AND SUCH EXAMINATION IS NOT INTENDED BY THE LEGISLATURE TO BE CARRIED OUT IN TH E SUBSEQUENT YEARS BY THE ASSESSING OFFICER. FOR THIS PROPOSITION, HEAVY RELI ANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF SAURASHTRA CEMENT ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 & CHEMICAL INDUSTRIES LTD (SUPRA). WE HAVE PERUSED THE SAID DECISION. IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD . (SUPRA), THE FACTS WERE AS FOLLOWS. THE ASSESSEE WAS CARRYING ON BUSINESS O F MANUFACTURING CEMENT AND THE CAPACITY OF THE FIRST CEMENT PLANT WAS 600 TONS PER DAY. IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 1968-69, THE CAPACI TY WAS EXPANDED AND IT WAS RAISED TO 1600 TONS PER DAY. THE ASSESSEE COMPA NY THEREFORE MADE A CLAIM FOR RELIEF UNDER SECTION 80J OF THE ACT WITH REFERENCE TO THE CAPITAL EMPLOYED IN THE EXPANSION OF THE PLANT AND MACHINER Y. THE ASSESSING OFFICER ALLOWED THE SAID CLAIM FOR THE ASSESSMENT YEAR 1968 -69. HOWEVER, IN THE ASSESSMENT YEAR 1969-70 THE ASSESSING OFFICER DISAL LOWED THE ASSESSEES CLAIM, AS IN HIS OPINION, THE EXPANSION OF CEMENT M ANUFACTURING UNIT DID NOT AMOUNT TO SETTING UP A NEW INDUSTRIAL UNDERTAKING, INASMUCH AS THE ACTIVITIES OF THE EXPANDED PART OF THE UNIT AS WELL AS THOSE O F THE ORIGINAL UNITS WERE MUCH INTER-CONNECTED. THUS, HE DISALLOWED THE CLAIM ON THE GROUND THAT NO NEW UNIT CAN BE SAID TO HAVE BEEN SET UP SEPARATE F ROM THE EXISTING UNIT ON ACCOUNT OF MERE EXPANSION. THE APPELLATE COMMISSION ER, IN APPEAL, HELD THAT IN THE ABSENCE OF THERE BEING ANY SPECIFIC PROVISIO N IN THE ACT THAT THE NEW UNIT SHOULD BE ALTOGETHER DISTINCT AND EVEN PHYSICA LLY AT A DISTANCE FROM THE OLD UNIT, AND THAT, IF THE RELIEF WAS ADMISSIBLE FO R ASSESSMENT YEAR 1968-69, IN RESPECT OF THE EXPANDED UNIT OF THE ASSESSEE COMPAN Y, THAT RELIEF WOULD CONTINUE TO BE AVAILABLE TO THE ASSESSEE FOR THE SU BSEQUENT PERIOD OF FOUR YEARS. THE TRIBUNAL ALSO UPHELD THE ORDER OF THE AP PELLATE COMMISSIONER GRANTING RELIEF TO THE ASSESSEE SINCE IN THE OPINIO N OF THE TRIBUNAL UNLESS THE ASSESSMENT FOR THE ASSESSMENT YEAR 1968-69 WAS DIST URBED BY WITHDRAWAL OF THE RELIEF, THERE COULD BE NO SUBSTANCE OR JUSTIFIC ATION IN THE REVENUES ATTEMPT TO WITHDRAW THE CLAIM UNDER SECTION 80J OF THE ACT FOR THE SUBSEQUENT YEAR, I.E. ASSESSMENT YEAR 1969-70. THE HONBLE HIGH COURT HE LD THAT IF THE RELIEF OF TAX HOLIDAY WAS GRANTED TO THE ASSESSEE FOR THE ASSESSM ENT YEAR 1968-69, THE ASSESSEE WAS ENTITLED TO CONTINUANCE OF THAT RELIEF FOR THE SUBSEQUENT FOUR YEARS AND THE ASSESSING OFFICER WOULD NOT BE JUSTIF IED IN REFUSING TO CONTINUE THE ALLOWANCE FOR THE ASSESSMENT YEAR 1969-70, WITH OUT DISTURBING THE RELIEF FOR THE INITIAL YEAR. IN THE WORDS OF THE HONBLE HIGH COURT, --NO DOUBT, THE RELIEF OF TAX HOLIDAY UNDER SECTION 80J CAN BE WITH HELD OR DISCONTINUED PROVIDED THE RELIEF GRANTED IN THE INITIAL YEAR OF ASSESSMENT IS DISTURBED OR CHANGED ON VALID GROUNDS. BUT WITHOUT DISTURBING TH E RELIEF GRANTED IN THE INITIAL YEAR, THE ITO CANNOT EXAMINE THE QUESTION AGAIN AND DECIDE TO WITHHOLD OR WITHDRAW THE RELIEF WHICH HAS BEEN ALREADY ONCE GRA NTED. 11. AS THE AFORESAID DISCUSSION SHOWS, THE MATRIX O F THE DISPUTE IN SAURASHTRA CEMENT & CHEMICALS LTD. (SUPRA) STOOD ON AN ALTOGETHER DIFFERENT FOOTING. THE ASSESSMENT YEAR IN DISPUTE WAS 1969-70 , WHICH WAS THE SECOND YEAR OF CLAIM OF DEDUCTION UNDER SECTION 80J OF THE ACT. IN THE INITIAL ASSESSMENT YEAR OF 1968-69 THE CLAIM WAS ALLOWED BY TREATING THE EXPANSION IN CAPACITY AS FORMATION OF A NEW INDUSTRIAL UNDERT AKING. WHETHER EXPANSION IN CAPACITY AMOUNTED TO FORMATION OF A NEW INDUSTRIAL UNDERTAKING WAS A CONDITION REQUIRED TO BE EXAMINED ONLY IN THE INITI AL YEAR, AND WHICH WAS DONE IN THE COURSE OF ASSESSMENT FOR THE ASSESSMENT YEAR 1968-69, BEING THE INITIAL YEAR. IN THE ASSESSMENT YEAR 1969-70, THE ASSESSING OFFICER SOUGHT TO DENY THE DEDUCTION ON THE GROUND THAT EXPANSION OF MANUF ACTURING CAPACITY DID NOT AMOUNT TO SETTING UP OF A NEW INDUSTRIAL UNDERTAKIN G. IN OTHER WORDS, A CONDITION WHICH WAS RELEVANT ONLY AT THE TIME OF FO RMATION OF UNIT, WAS EXAMINED AND ACCEPTED IN THE ASSESSMENT YEAR 1968-6 9 AND THE SAME WAS SOUGHT TO BE REVIEWED BY THE ASSESSING OFFICER IN T HE COURSE OF THE ASSESSMENT FOR THE SUBSEQUENT ASSESSMENT YEAR 1969- 70 AND ARRIVE AT A DIFFERENT CONCLUSION. THIS ACTION WAS NEGATED BY TH E HONBLE HIGH COURT WITH AFORESAID OBSERVATIONS THAT WITHOUT DISTURBING THE RELIEF GRANTED IN THE INITIAL YEAR, THE REVENUE CANNOT EXAMINE THE QUESTION AGAI N TO DENY THE RELIEF IN SUBSEQUENT YEAR. IN OUR CONSIDERED OPINION, IN THE INSTANT CASE MATRIX STANDS ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 DIFFERENTLY, INASMUCH IN THE INSTANT CASE THE ASSES SING OFFICER IS NOT ATTEMPTING TO REVIEW A POSITION ACCEPTED WITH REFER ENCE TO THE INITIAL YEAR. IN FACT, IN THE PRESENT CASE ON ACCOUNT OF CHANGED CON DITION NAMELY THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE LOOSING THE STATUS OF A SMALL SCALE INDUSTRIAL UNDERTAKING UNDER THE IDR ACT, THE ASSES SING OFFICER SEEKS TO HOLD THAT THE SAID CONDITION IS NOT SATISFIED DURING THE YEAR UNDER CONSIDERATION. THE SAID ACTION CANNOT BE INTERPRETED TO MEAN THAT THER E IS AN ATTEMPT BY THE REVENUE TO REVIEW AN ACCEPTED POSITION OF THE INIT IAL ASSESSMENT YEAR WHICH WAS THE CASE BEFORE THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (SUPRA). IN THE C ASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (SUPRA) ONCE HAVING ACCE PTED IN THE INITIAL ASSESSMENT YEAR THAT THE EXPANSION IN CAPACITY AMOU NTED TO SETTING UP OF A NEW UNIT, THE SAME WAS SOUGHT TO BE REVIEWED IN THE SUBSEQUENT YEAR BY HOLDING DIFFERENTLY. IN FACT, THE HONBLE GUJARAT H IGH COURT ITSELF ENVISAGED THAT THE RELIEF OF TAX HOLIDAY UNDER SECTION 80J CAN BE WITHHELD, PROVIDED THE RELIEF GRANTED IN THE INITIAL YEAR IS DISTURBED OR CHANGED ON VALID GROUND. IN THE PRESENT CASE, IT IS QUITE CLEAR THAT ON ACCOUNT OF EVENTS SUBSEQUENT TO THE INITIAL ASSESSMENT YEAR THE ASSESSEE FAILS TO FULFI LL THE IMPUGNED CONDITION AND, THEREFORE, IT IS INELIGIBLE FOR THE CLAIM OF DEDUCT ION IN THIS YEAR. IN OUR CONSIDERED OPINION, THE RATIO OF THE JUDGMENT OF TH E HONBLE GUJARAT HIGH COURT IN THE CASE OF SAURASHTRA CEMENT & CHEMICALS LTD. (SUPRA) DOES NOT HELP THE ASSESSEE IN THE PRESENT CASE. 12. THE NEXT DECISION RELIED UPON BY THE APPELLANT IS IN THE CASE OF PAUL BROTHERS (SUPRA) WHEREIN THE FACTS WERE AS FOL LOWS. IN THE CASE OF PAUL BROTHERS (SUPRA), THE ISSUE RELATED TO JURISDICTION ASSUMED BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT FOR ASSES SMENT YEARS 1981-82 AND 1982-83 WHICH WAS QUASHED BY THE TRIBUNAL, WHIC H WAS APPEALED BY THE REVENUE BEFORE THE HONBLE HIGH COURT. THE FACTS WE RE THAT THE ASSESSEE FIRM HAD BRANCHES IN BACKWARD AREAS CARRYING ON THE BUSI NESS OF CONSTRUCTION OF BUILDINGS, TRANSPORTATION AND MANUFACTURE AND SUPPL Y OF BRICKS. FOR THE USE IN CONSTRUCTION ACTIVITY, ASSESSEE ALSO MANUFACTURED W INDOWS, CONCRETE SLABS ETC. FOR ASSESSMENT YEARS 1980-81 AND 1981-82 IT CL AIMED DEDUCTION UNDER SECTION 80HH OF THE ACT, WHICH WAS ALLOWED FOR THE ASSESSMENT YEAR 1980-81 BY THE ASSESSING OFFICER WITHOUT DISCUSSION AND SUC H ASSESSMENT HAD BECOME FINAL. IN THE ASSESSMENT YEAR 1981-82 ALSO T HE DEDUCTION WAS ALLOWED BY THE ASSESSING OFFICER AND WHILE ALLOWING DEDUCTI ON, RELIANCE WAS PLACED ON THE JUDGMENT OF THE HONBLE ORISSA HIGH COURT IN TH E CASE OF CIT V N.C. BUDHARAJA & CO 121 ITR 212 (ORI) WHICH WAS THE ONLY DECISION THEN OPERATING IN THE FIELD. FOR THE ASSESSMENT YEAR 1981-82, THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEA LS) ON CERTAIN OTHER ISSUES. AGAIN FOR ASSESSMENT YEAR 1982-83 THE ASSES SING OFFICER ALLOWED DEDUCTION UNDER SECTION 80HH OF THE ACT. THE COMMI SSIONER EXERCISING JURISDICTION UNDER SECTION 263 OF THE ACT QUASHED T HE ORDERS OF THE ASSESSING OFFICER FOR ASSESSMENT YEARS 1981-82 AND 1982-83. AS PER THE TRIBUNAL, (I) SINCE THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 1981 -82 WAS MERGED IN THE APPELLATE ORDER, SECTION 263 JURISDICTION COULD NOT BE EXERCISED BY THE COMMISSIONER; (II) SINCE THE ASSESSMENT WAS BASED O N A BINDING DECISION OF THE HIGH COURT, IT COULD NOT BE INTERFERED UNDER SE CTION 263 OF THE ACT; (III) UNLESS DEDUCTION ALLOWED IN THE ASSESSMENT YEAR 198 0-81 ON THE SAME GROUND WAS WITHDRAWN, THEY COULD NOT BE DENIED FOR THE SUBSEQUENT YEARS. THE HONBLE HIGH COURT AFFIRMED THE APPROACH OF THE TRIBUNAL ON ALL THE THREE COUNTS. BEFORE US, THE LEARNED COUNSEL FOR THE APPE LLANT POINTED OUT THAT THE PARITY OF REASONING APPROVED BY THE HIGH COURT TO T HE EFFECT THAT UNLESS DEDUCTION ALLOWED IN A PRECEDING YEAR ON THE SAME G ROUND IS WITHDRAWN, SIMILAR RELIEF FOR THE SUBSEQUENT YEARS COULD NOT B E WITHHELD. SECONDLY, THE LEARNED COUNSEL ALSO REFERRED TO THE OBSERVATIONS O F THE HONBLE HIGH COURT THAT IN SECTIONS 80HH OR SECTION 80J THERE IS NO PR OVISION FOR WITHDRAWAL OF ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 SPECIAL DEDUCTION FOR THE SUBSEQUENT YEARS FOR BREA CH OF CONDITIONS. IT WAS POINTED OUT THAT SIMILAR IS THE SITUATION WITH REGA RD TO THE PROVISIONS OF SECTION 80-IB AND THEREFORE IN THE INSTANT CASE THE RELIEF UNDER SECTION 80-IB COULD NOT BE DENIED IN THIS YEAR. 13. IN OUR CONSIDERED OPINION, THE RATIO OF THE AF ORESAID JUDGMENT ALSO DOES NOT HELP THE ASSESSEE IN THE INSTANT CASE . THE FACTUAL MATRIX IN THE AFORESAID CASE WAS THAT IN EARLIER YEAR THE BENEFIT STOOD ALLOWED TO THE ASSESSEE AND WITHOUT ANY CHANGED CIRCUMSTANCES, THE SAID CLAIM WAS SOUGHT TO BE DENIED IN A SUBSEQUENT YEAR, AND SUCH AN ATTE MPT WAS NEGATED BY THE HONBLE HIGH COURT. IN THE INSTANT CASE, AS WE HAVE NOTED EARLIER THE CIRCUMSTANCES HAVE CHANGED AFTER THE INITIAL ASSESS MENT YEAR AND THEREFORE, THE CLAIM IS SOUGHT TO BE DENIED ON VALID GROUNDS A ND WITHOUT DISTURBING THE CLAIM IN THE INITIAL YEAR BECAUSE THE CIRCUMSTANCES IN THE INITIAL YEAR HAVE NOT UNDERGONE ANY CHANGE. THEREFORE, THE DECISION IS IN APPLICABLE TO THE INSTANT CASE. 14. IN THE RESULT, WE HEREBY AFFIRM THE ORDERS OF T HE AUTHORITIES BELOW DENYING RELIEF TO THE ASSESSEE UNDER SECTION 80-IB OF THE ACT. THE ASSESSEE FAILS. 6. OSTENSIBLY, THE TRIBUNAL HAS CONSIDERED SIMILAR ARGUMENT AS IS BEING ADVANCED BEFORE US, BY THE LEARNED COUNSEL. THE CO NDITION IN DISPUTE BEFORE US IS CONTAINED IN CLAUSE (III) TO SECTION 80IB(2) OF THE ACT. FACTUALLY SPEAKING, IT IS NOT IN DISPUTE THAT FOR THE ASSESSMENT YEARS BEFORE US AS WELL AS IN ASSESSMENT YEAR 2006-07 CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 30.03.2011 (SUPRA), THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE DOES NOT COMPLY WITH THE CONDITION PRESCRIBED IN CLAUSE (III ) TO SECTION 80IB(2) OF THE ACT. THE PLEA OF THE ASSESSEE THAT THE DEDUCTION H AS BEEN ALLOWED IN THE INITIAL ASSESSMENT YEAR WHEN IT COMPLIED WITH THE S AID CONDITION AND THEREFORE, THE SAME CANNOT BE DENIED IN THE SUBSEQUENT ASSESSM ENT YEARS, HAS ALSO BEEN APPROPRIATELY DEALT WITH IN THE ABOVE PRECEDEN T. IN THE CONTEXT OF THE AFORESAID ARGUMENT, THE TRIBUNAL EXPLAINED THE POSI TION WITH REGARD TO THE VARIOUS CONDITIONS PRESCRIBED INASMUCH AS THE CONDI TIONS PRESCRIBED IN CLAUSES (I) AND (II) OF SUB-SECTION (2) OF SECTION 80IB OF THE ACT, WERE FOUND TO BE WITH REFERENCE TO A PARTICULAR POINT OF TIME I.E . AT THE TIME OF FORMATION OF THE UNIT AND THUS COULD ONLY BE EXAMINED IN THE INITIAL ASSESSMENT YEAR, AND, THE PROPOSITION OF THE ASSESSEE MAY BE RELEVANT IN THE SAID CONTEXT; SO HOWEVER, IN SO FAR AS CLAUSE (III) TO SUB-SECTION (2) OF SEC TION 80IB OF THE ACT IS CONCERNED, WHICH IS THE BONE OF CONTENTION BEFORE U S, THE SAME DOES NOT LEND ITSELF TO SUCH AN INTERPRETATION. THEREFORE, THE C ONDITION PRESCRIBED IN CLAUSE ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 (III) TO SUB-SECTION (2) OF SECTION 80IB OF THE ACT WAS NOT FOUND AMENABLE FOR INTERPRETATION IN THE LIGHT OF THE PROPOSITION BEIN G ADVANCED BY THE ASSESSEE. THE DETAILED REASONING HAS ALREADY BEEN DISCUSSED I N OUR ORDER DATED 31.03.2011 (SUPRA) AND IS NOT BEING REPEATED FOR TH E SAKE OF CONVENIENCE. 7. HOWEVER, THE LEARNED COUNSEL HAS RELIED UPON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DELHI PRESS PATRA PRAKASHAN LTD. (SUPRA) TO AGAIN SUPPORT THE PROPOSITION THAT IF TH E ASSESSING OFFICER HAS ACCEPTED THE CLAIM OF THE ASSESSEE OF DEDUCTION IN THE INITIAL ASSESSMENT YEAR, IT WOULD NOT BE OPEN FOR THE ASSESSING OFFICER TO D ENY THE DEDUCTION IN A SUBSEQUENT YEAR ON THE GROUND OF NON-FULFILLMENT OF THE CONDITION PRESCRIBED WITHOUT DISTURBING THE ASSESSMENT FOR THE INITIAL A SSESSMENT YEAR. WE HAVE PERUSED THE SAID JUDGMENT, AND FIND THAT THE ISSUE BEFORE THE HONBLE DELHI HIGH COURT PERTAINED TO THE CLAIM OF DEDUCTION U/S 80I OF THE ACT AND THE CONDITION IN DISPUTE WAS TO THE EFFECT THAT THE UNI T OUGHT TO HAVE NOT BEEN FORMED BY SPLITTING UP OR THE RECONSTRUCTION OF A B USINESS, A CONDITION WHICH IS PARI-MATERIA TO CONDITION PRESCRIBED IN CLAUSE (I) TO SUB-SECTI ON (2) OF SECTION 80IB OF THE ACT. OSTENSIBLY, THE CONDITION BEFORE THE HONBLE DELHI HIGH COURT WAS TO BE EXAMINED ONLY AT THE TIME OF FORMATION OF THE UNIT, WHICH WAS IN THE INITIAL ASSESSMENT YEAR, AND THEREFORE IT WAS IN TH IS CONTEXT THAT THE JUDGMENT OF THE HONBLE DELHI HIGH COURT HAS TO BE UNDERSTOO D. THE AFORESAID JUDGMENT OF THE HONBLE DELHI HIGH COURT IS CONCURRENCE WITH THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SAURASHTR A CEMENT AND CHEMICAL INDUSTRIES VS. CIT, 123 ITR 669 (GUJ) AND ALSO THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PAUL BROTHERS, 21 6 ITR 548 (BOM), WHICH HAVE ALREADY BEEN CONSIDERED BY THE TRIBUNAL AND FO UND INAPPLICABLE IN THE CASE OF THE ASSESSEE WHILE DETERMINING THE ISSUE IN ASSESSMENT YEAR 2006-07 (SUPRA). THEREFORE, PRESENT PLEA OF THE AS SESSEE, BASED ON THE HONBLE DELHI HIGH COURT IN THE CASE OF DELHI PRESS PATRA PRAKASHAN LTD. (SUPRA) DOES NOT PROVIDE ANY REASON TO DEPART FROM THE DECISION RENDERED BY THE TRIBUNAL IN ITS ORDER DATED 31.03.2011 (SUPRA), WHICH IS SQUARELY APPLICABLE ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 FOR THE YEAR UNDER CONSIDERATION BEFORE US. AT THI S POINT, WE MAY ALSO PERTINENTLY MENTION THAT THE DECISION OF THE TRIBUN AL IN ASSESSMENT YEAR 2006-07 HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORIT Y AND CONTINUES TO HOLD THE FIELD, AS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE AT BAR. 8. THEREFORE, IN VIEW OF THE AFORESAID DISCUSSION H AVING REGARD TO THE PRECEDENT IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07, AND IN THE ABSENCE OF ANY CHANGE IN THE FACTS AND CIRCUMST ANCES IN THE CAPTIONED ASSESSMENT YEARS, WE AFFIRM THE ORDERS OF THE AUTHO RITIES BELOW DENYING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB OF THE ACT. 9. ANOTHER ISSUE WHICH HAS BEEN RAISED BY THE ASSES SEE IS TO THE EFFECT THAT REOPENING OF ASSESSMENT MADE BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IS BAD-IN-LAW. IN THIS C ONTEXT, IT IS RELEVANT TO NOTE THAT ASSESSMENTS FOR THE CAPTIONED ASSESSMENT YEARS WERE REOPENED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT ON THE GROUND THAT CER TAIN INCOME HAD ESCAPED ASSESSMENT INASMUCH AS THE DEDUCTION U/S 80IB(3) OF THE ACT HAS BEEN WRONGLY ALLOWED FOR THE REASONS NOTED BY US IN EARL IER PARAGRAPHS. BEFORE US, THE ONLY REASON ON THE BASIS OF WHICH THE ASSESSMEN T IS CANVASSED TO BE BAD IN LAW IS ON ACCOUNT OF THE FACT THAT THE ASSESSING OFFICER DID NOT PASS A SEPARATE ORDER ON THE OBJECTIONS RAISED BY THE ASSE SSEE TO THE NOTICE U/S 148 OF THE ACT BUT THE SAME HAS BEEN DECIDED ALONG WITH THE ASSESSMENT ORDER. THE LEARNED COUNSEL HAS POINTED OUT THAT THE AFORES AID INFIRMITY WOULD RENDER THE ASSESSMENT ORDER NULL AND VOID AND IN SUPPORT R ELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT I N THE CASE OF GENERAL MOTORS INDIA P. LTD. VS. DCIT, (2013) 354 ITR 244 ( GUJ). IN OUR CONSIDERED OPINION, THE AFORESAID OBJECTION RAISED BY THE ASSE SSEE DOES NOT EMPOWER THE TRIBUNAL TO HOLD THE IMPUGNED ASSESSMENT AS NULL AN D VOID, ESPECIALLY IN THE FACE OF THE SITUATION THAT THE OBJECTIONS OF THE AS SESSEE TO THE NOTICE U/S 148 OF THE ACT HAVE INDEED BEEN DEALT WITH, ALBEIT IN THE ASSESSMENT ORDER. THE HONBLE GUJARAT HIGH COURT WAS CONSIDERING A WRIT P ETITION PREFERRED BY THE ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 ASSESSEE UNDER ARTICLE 226 OF THE CONSTITUTION OF I NDIA CHALLENGING THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 148 OF THE ACT AS ALSO THE CONSEQUENT ASSESSMENT ORDER. AFTER CONSIDERING THE VARIED SUB MISSIONS MADE BEFORE IT, THE FIRST QUESTION WHICH THE HONBLE HIGH COURT CON SIDERED WAS AS TO WHETHER THE WRIT PETITION CHALLENGING THE NOTICE U/S 148 OF THE ACT AND THE REASSESSMENT WAS MAINTAINABLE OR WAS LIABLE TO BE D ISMISSED AS ADEQUATE ALTERNATIVE REMEDY OF FILING OF AN APPEAL WAS AVAIL ABLE. IN APPRECIATING THE AFORESAID QUESTION, THE FOLLOWING OBSERVATIONS OF T HE HONBLE GUJARAT HIGH COURT ARE RELEVANT :- FROM THE AFORESAID DISCUSSION, WE ARE OF THE CONSI DERED OPINION THAT THE WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITU TION OF INDIA IS MAINTAINABLE WHERE NO ORDER HAS BEEN PASSED BY THE ASSESSING OFF ICER DECIDING THE OBJECTION FILED BY THE ASSESSEE UNDER SECTION 148 O F THE ACT AND ASSESSMENT ORDER HAS BEEN PASSED OR THE ORDER DECIDING AN OBJE CTION UNDER SECTION 148 OF THE ACT HAS NOT BEEN COMMUNICATED TO THE ASSESSEE A ND ASSESSMENT ORDER HAS BEEN PASSED OR THE OBJECTION FILED UNDER SECTIO N 148 HAS BEEN DECIDED ALONG WITH THE ASSESSMENT ORDER. IF THE OBJECTION UNDER SECTION 148 HAS BEEN REJECTED WITHOUT THERE BEING ANY TANGIBLE MATERIAL AVAILABLE WITH THE ASSESSING OFFICER TO FORM AN OPINION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT AND IN THE ABSENCE OF REASONS HAVING DIR ECT LINK WITH THE FORMATION OF THE BELIEF, THE WRIT COURT UNDER ARTIC LE 226 CAN QUASH THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THE WRIT PETI TION FILED BY THE PETITIONER IS MAINTAINABLE. THE ASSESSING OFFICER IS MANDATED TO DECIDE THE OBJECTION TO THE NOTICE UNDER SECTION 148 AND SUPPLY OR COMMUNIC ATE IT TO THE ASSESSEE. THE ASSESSEE GETS AN OPPORTUNITY TO CHALLENGE THE O RDER IN A WRIT PETITION. THEREAFTER, THE ASSESSING OFFICER MAY PASS THE REAS SESSMENT ORDER. WE HOLD THAT IT WAS NOT OPEN TO THE ASSESSING OFFICER TO DE CIDE THE OBJECTION TO NOTICE UNDER SECTION 148 BY A COMPOSITE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS REQUIRED TO, FIRST DECIDE THE OBJECTION OF THE ASSESSEE FILED UNDER SECTION 148 AND SERVE A COPY OF THE ORDER ON THE ASSESSEE. AND AFTER GIVING SOME REASONABLE TIME TO THE ASSESSEE FOR CHALLENGING HIS ORDER, IT WAS OPEN TO HIM TO PASS AN ASSESSMENT ORDER. THIS WAS NOT DONE BY THE ASSESSING OFFICER, THEREFORE, THE ORDER ON THE OBJECTION TO THE NOTICE UNDER SECTION 148 AND THE ASSESSMENT ORDER PASSED UNDER THE ACT DESERVES TO B E QUASHED. 10. AS PER THE HONBLE HIGH COURT, THE WRIT PETITI ON WAS MAINTAINABLE IN VARIOUS SITUATIONS ENUMERATED THEREIN AND ONE OF TH E SITUATIONS WAS WHERE THE OBJECTIONS FILED TO THE NOTICE U/S 148 OF THE ACT W AS DECIDED ALONGWITH THE ASSESSMENT ORDER. IN OUR CONSIDERED OPINION, THE O BSERVATIONS OF THE HONBLE HIGH COURT HAVE TO BE UNDERSTOOD IN THE CONTEXT OF WHAT WAS BEING DECIDED NAMELY, THE MAINTAINABILITY OF THE WRIT PETITION. AS PER THE HONBLE HIGH COURT, THE ASSESSING OFFICER WAS MANDATED TO DECIDE THE OB JECTION TO THE NOTICE U/S ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 148 OF THE ACT AND INDICATE IT TO THE ASSESSEE SO T HAT ASSESSEE GETS AN OPPORTUNITY TO CHALLENGE THE ORDER IN A WRIT PETITI ON AND THEREAFTER THE ASSESSING OFFICER MAY PASS THE REASSESSMENT ORDER. THIS IS NOT THE SITUATION BEFORE US INASMUCH AS THE ASSESSEE DOES NOT HAVE A RIGHT OF APPEAL AGAINST A MERE ISSUE OF NOTICE U/S 148 OF THE ACT. NOTABLY, IN THE APPELLATE PROCEDURE PRESCRIBED UNDER THE ACT, NO SEPARATE APPEAL IS PRO VIDED AGAINST THE ORDER REQUIRED TO BE PASSED BY THE ASSESSING OFFICER DECI DING THE OBJECTIONS TO THE NOTICE U/S 148 OF THE ACT. THE SAME IS LIABLE TO B E CHALLENGED IN THE APPEAL PREFERRED AGAINST THE ORDER OF THE REASSESSMENT PAS SED BY THE ASSESSING OFFICER, BEFORE THE APPELLATE AUTHORITIES PRESCRIBE D UNDER THE ACT. THUS, IN THE COURSE OF THE APPELLATE PROCEDURES PRESCRIBED UNDER THE ACT, WITH WHICH WE ARE PRESENTLY CONCERNED WITH, THE APPEAL HAS ONLY B EEN PROVIDED AGAINST AN ASSESSMENT ORDER, AND NO SEPARATE APPEAL IS PROVIDE D AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER TO DECIDE THE OBJEC TION TO THE NOTICE U/S 148 OF THE ACT RAISED BY THE ASSESSEE. IN THE PRESENT CASE BEFORE US, IN THE CONTEXT OF THE APPELLATE JURISDICTION PROVIDED IN T ERMS OF THE ACT, ASSESSEE HAS A REMEDY TO CHALLENGE THE ORDER OF THE ASSESSING OF FICER DECIDING THE OBJECTION TO THE NOTICE ISSUED U/S 148 OF THE ACT A LONGWITH THE ASSESSMENT ORDER ONLY AND, ACCORDINGLY THE ASSESSEE IS FREE TO RAISE A GROUND CHALLENGING THE ORDER OF THE ASSESSING OFFICER DECIDING THE OBJ ECTION TO NOTICE ISSUED U/S 148 OF THE ACT. PERTINENTLY, ASSESSEE HAS NOT RAIS ED ANY PLEA ON THE MERITS OF ORDER OF ASSESSING OFFICER DECIDING THE OBJECTIONS RAISED AGAINST THE NOTICE ISSUED U/S 148 OF THE ACT. UNDER THESE CIRCUMSTANC ES, IN OUR VIEW, THE PARITY OF REASONING CONSIDERED BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA P. LTD. (SUPRA) DOES NOT RENDE R THE ASSESSMENT ORDER AS NULL AND VOID. ACCORDINGLY, WE DO NOT FIND ANY MER IT IN THE PLEA OF THE ASSESSEE AGAINST THE REOPENING OF ASSESSMENTS BY IS SUANCE OF NOTICE U/S 148 OF THE ACT FOR THE CAPTIONED ASSESSMENT YEARS. THU S, ON THIS ASPECT ALSO, ASSESSEE FAILS. ITA NOS. 211 TO 213/PN/2011 A.YS. 2003-04 TO 2005-06 11. IN THE RESULT, THE THREE CAPTIONED APPEALS OF T HE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 29 TH NOVEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), KOLHAPUR; 4) THE CIT, KOLHAPUR; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE