Decided on May 16,2014

Vinay Enterprises Respondents


N.K.Billaiya, J. - (1.) WITH this appeal the revenue has challenged the correctness of the order of the CT(A) -35, Mumbai, dated 13.07.2011 pertaining to A.Y. 2003 -04. The grievances of the revenue read as under: "1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding the reassessment proceedings as invalid and cancelling assessment proceedings and the order passed by the Assessing Officer under section 144 r.w.s. 147 of the Income Tax Act,1961 dated 31.12.2010 wherein the deduction under section 80IB(10) of the Income Tax Act, 1961 claimed by the assessee at Rs.35,03,447/ - was disallowed by the Assessing Officer.
(2.) ON the facts and in the circumstances of the case, and in law, the ld. CIT(A) erred in holding the reassessment proceedings as invalid and cancelling assessment proceedings without appreciating the fact that the assessee has also not raised this issue before the Assessing Officer during assessment proceedings nor in the Ground of Appeal before CIT(A)." 2. In this case the original return of income was filed on 25.11.2003 declaring total income at "nil". Deduction u/s. 80IB(10) was claimed at Rs.35,03,447/ -. The return was selected for scrutiny assessment and was completed u/s. 143(3) of the Act on 28.03.2005 determining the total income at Rs.15,150/ -.
(3.) INFORMATION was received from the DCIT, Circle -4, Mumbai, that the assessee firm has claimed deduction u/s. 80IB(10) of the Act for A.Y. 2002 -03. As per the information, the revenue audit has raised the objection regarding the claim of deduction u/s. 80IB(10) by the assessee. It was further stated in the information that the claim has to be denied because the assessee does not fulfill the mandatory conditions for claiming deduction u/s. 80IB(10) of the Act. In view of these facts, the assessment was re -opened after recording the reasons and obtaining prior approval of the Additional/Jt. CIT -25(2), Mumbai. Statutory notices u/s. 148 was issued on 24.03.2010. The assessee was asked to file a return. However, no return was filed in response to the notice u/s. 148 of the Act. As the assessment was getting barred by limitation, the AO proceeded to complete the assessment on the basis of the material available on record.;

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