ACIT, NEW DELHI vs. M/S. SETH KUMAR RAI INTERNATIONAL, NEW DELHI

"Whether in the facts and circumstances of the case, the CIT(A) has erred in giving relief to the assessee on the ground that as per the revised certificate from the Chartered Accountant submitted before the CIT(A) for the first time, the FOB exports comes to Rs. 9,44,04,959/- instead of Rs. 11,06,27,051/- attracting the amendment brought in Section 80HHC, without appreciating the fact that an assessee cannot amend a return filed by him for making a claim for deduction other than by filing a revised return as held in Goetze (India) Ltd vs CIT [2006] 157 Taxman 1 (SC) and accordingly, revised certificate from Chartered Accountant could not have been taken into consideration since the revised certificate has the effect of amending the claim for deduction and no revised return has been filed in the facts of the case." 3. "Whether in the facts and circumstances of the case, the CIT(A) has erred in giving relief to the assessee on the ground that as per the revised certificate from the Chartered Accountant submitted before the CIT(A) for the first time, the FOB exports comes to Rs. 9,44,04,959/- instead of Rs. 11.06,27,051/- attracting the amendment brought in Section 80HHC, by admitting additional evidence without the conditions of Rule 46A being fulfilled since neither is it a case where the assessing officer refused to admit evidence which ought to have been admitted, nor is it a case where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the AO, nor is it a case where the appellant was prevented by sufficient cause from producing before the AO any evidence which is relevant to any ground of appeal, nor is it a case where the assessing officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal and further that the Ld. CIT(A) has admitted the additional evidence giving finding that the evidence is relevant and goes in the root of the matter, however the same is not sufficient under Rule 46 for admission of additional evidence since only in case the appellant was prevented by sufficient cause from producing before the AO any evidence which is ITA No. 4277/Del./2011 3 relevant to any ground of appeal can such evidence be admitted, accordingly CIT(A) has erred in admitting the same."

The ld. DR relied on the order of the Assessing Officer and submitted that the ld. CIT(A) has wrongly accepted the additional evidences u/r 46A whereas ample opportunities were granted by the Assessing Officer during the assessment proceedings. Therefore, the AO’s order should not be disturbed. He strongly relied on the grounds raised in appeal.

On the other hand, the ld. AR relied on the order of the ld. CIT(A) and submitted that the AO was not justified in reopening the case beyond four years from the end of assessment year, as held in several decisions relied by the ld. CIT(A) in the impugned order. He also relied on the order of Hon’ble Bombay High Court in the case of Vijay Silk House vs. UOI in writ petition No. 2446 of 2010 and others (copy placed on record). He further submitted that the assessee’s case is fully covered by the above order where it has been held that the amendment will take effect prospectively and not retrospectively.

We have considered the rival submissions and have gone through the entire material available on record and we find that the ld. CIT(A) after relying on various decisions of Hon’ble higher courts has rightly held that the notice issued u/s. 148 on 28.03.2008 beyond the period of four years from the end of the relevant assessment year is not valid. Moreover, the issue under consideration, which led the AO to reopen the case of assessee, is fully covered by the decision of Hon’ble Bombay High Court in the case of Vijay Silk House vs. UOI in writ petition No. 2446 of 2010 and others (supra), wherein it has observed to follow the decision of Division Bench of Hon’ble Gujrat High Court dated 2nd July, 2012 rendered in a batch of writ petition, who disposed of the writ petitions in the following terms : “26. On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal and at the same time, for depriving the benefit earlier granted to a class of assessees whose assessments were still pending although such benefit will be available to the assessees whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assessee but not in a case where it affects even a fewer section of the assessee.

We, accordingly, quash the impugned amendment only to this extent that the operation of the said section could be given effect from the date of the amendment and not in respect of earlier assessment years of the assessees whose export turnover is above Rs.10 “Crore. In other words, the retrospective amendment should not be detrimental to any of the assessee.”