Point of Law: Taxation – Assessment – Deduction of - Claim of assessee for deduction under Section 80IA of Act along with reasons for revising return of income with respect to claim under Section 80IA of Act was before Assessing Officer and such claim was also processed.

ORDER :

J.B. PARDIWALA, J.

1. By this writ application under Article 226 of the Constitution of India, the writ applicant (assessee) has prayed for the following relief’s;

“(A) quash and set aside the impugned notice at Annexure-A to this petition;

(B) pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at Annexure-A to this petition and stay the further proceedings for the Assessment Year 2012-13;

(C) any other and further relief deemed just and proper be granted in the interest of justice;

(D) to provide for the cost of this petition.”

2. The present litigation is one of reopening of the assessment for the A.Y. 2012-13 in a case where the original return was taken in scrutiny and an order of assessment under Section 143(3) of the Act was passed. This is a case in which the reopening is beyond the period of four years.

3. The case of the writ applicant may be summarized as under;

“2.2. The writ applicant, during the Financial Year 2011-12 relevant to Assessment Year 2012-13 (i.e. the year under consideration), was engaged in the business of manufacturing and trading of agro processing as well as maize processing. The writ applicant also operated wind mills for power generation. The writ applicant filed the original return of income for the year under consideration on 29.11.2012 declaring total income at Rs.36,73,42,030/- after claiming deduction of Rs.3,72,55,271/- under section 80-IA of the Act. Later, the writ applicant filed revised return of income on 18.01.14 declaring total income at Rs.30,62,30,930/- wherein the claim of deduction under section 80-IA of the Act was enhanced to Rs.9,92,13,248/-. Copy of acknowledgment of original return of income and computation of income is annexed herewith and marked as Annexure-B (Colly). Copy of acknowledgment of revised return of income and computation of income is annexed herewith and marked as Annexure-C (Colly).

2.3 The case of the writ applicant for the year under consideration was selected for scrutiny assessment. Various details and information were called for by the then Assessing Officer and the same were duly furnished by the writ applicant from time to time. The Assessing Officer, vide notice dated 22.08.14, called upon the writ applicant to furnish various details including the details with respect to the claim of deduction under section 80-IA of the Act (Point No.34). Copy of notice dated 22.08.14 issued under section 142(1) of the Act is annexed and marked as Annexure-D.

2.4 The writ applicant, vide letter dated 14.11.14, furnished various details and information called for by the then Assessing Officer including details pertaining to the claim of deduction under section 80-IA of the Act as well as explanation for revising the return of income with respect to the said claim. It was submitted that the writ applicant had claimed deduction of Rs.3,72,55,271/- under section 80-IA of the Act in the original return of income whereas such deduction was enhanced to Rs.9,92,13,248/- in the revised return of income. It was stated therein that in view of provisions of section 80-IA of the Act as well as various judicial pronouncements, deduction under section 80-IA of the Act is to be computed on standalone basis for the initial assessment years and subsequent years without setting off brought forward notional business loss / depreciation of years prior to the initial assessment year against the current year's eligible business income. Revised Tax Audit Report in the Form No.3CD as well as revised Form No.10CCB have also been obtained. In view of the same, the return of income was revised and claim of deduction under section 80-IA of the Act was taken at Rs.9,92,13,248/- as against Rs.3,72,55,271/- claimed in the original return of income Copy of letter dated 14.11.14 addressed to the Assessing Officer is annexed and marked as Annexure-”E”.

2.5 The then Assessing Officer, after considering the details and information fur