Gujarat High Court
Gujarat State Petroleum Corporation ... vs Joint Commissioner Of Income Tax on 13 November, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025
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Reserved On : 15/10/2025
Pronounced On : 13/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 270 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✓
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GUJARAT STATE PETROLEUM CORPORATION LIMITED
Versus
JOINT COMMISSIONER OF INCOME TAX
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Appearance:
MR BS SOPARKAR FOR MRS SWATI SOPARKAR(870) for the Appellant(s)
No. 1
MS MAITHILI D MEHTA(3206) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned Page 1 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined Senior Standing Counsel Ms. Maithili D. Mehta for the respondent.
2. This Tax Appeal is filed by the appellant assesse under section 260A of the Income Tax Act, 1961 (For short "the Act") arising out of order passed by Income Tax Appellate Tribunal (For short "the Tribunal") in ITA No.124/Ahd/2006 dated 17.10.2008 for Assessment Year 1997- 1998.
3. The appeal is admitted vide order dated 11.10.2010 for consideration of the following substantial questions of law:
"(i) Whether, in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in not allowing the appellant deduction of Rs.4,89,22,831/- u/s 42 of the Act?
(ii) Whether, in the facts and Page 2 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined circumstances of the case, the Income Tax Appellate Tribunal was right in law in not allowing the appellant to raise the additional issue for challenging the re-
opening of assessment for the A.Y. 1997-98?"
4. The appellant is a Government company engaged in exploration and drilling of mineral oil and natural gas.
5. The appellant assessee filed return of income on 30.11.1997 declaring total loss of Rs. 1,00,85,620/-. Case of the assessee was selected for scrutiny and assessment order under section 143(3) of the Act dated 21.03.2000 was passed accepting the returned loss. The Assessing Officer took the book profit as per Profit and Loss Account at Rs. 3,25,85,894/- and 30% thereof being Rs.97,75,768/- was worked out as Book Profit under section 115JA of Page 3 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined the Act.
6. The appellant assessee also claimed deduction under section 42 of the Act of Rs.4,89,22,831/-. The Assessing Officer disallowed the claim of Rs.4,87,90,561/-
in view of provisions of section 42(1) of the Act which provides that for the purpose of computing the profit and gains of any business consisting of the prospecting for or extraction for production of mineral oil in relation to which the Central Government has entered into agreement with any person or the association for participation of the Central Government or any person authorised by any such business, there shall be made in view of or in addition to the allowance admissible under this Act, such allowance as specified in the Page 4 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined agreement.
7. The Assessing Officer considering the provisions of section 42 allowed only the expenses in relation to drilling and exploration and not the production of mineral oil.
8. Being aggrieved, the assessee preferred an appeal before the CIT (Appeals) who allowed the claim of the assessee by following decision in appeal for Assessment Year 2001-2002 and 2002- 2003.
9. Being aggrieved, the Revenue preferred an appeal before the Tribunal. The Tribunal following its order dated 29.02.2008 in case of Niko Resources and Page 5 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined held that the appellant assessee was not entitled to deduction under section 42 of the Act. However, the Tribunal while reversing the order of CIT(Appeals) directed the Assessing Officer to consider the claim of the appellant assessee for depreciation under section 32 of the Act in view of observations made in the order dated 29.02.2008 of the Tribunal.
10. The Tribunal also rejected the contention of the assessee challenging invocation of section 147 for reopening being not in accordance with law on the ground that the issue was neither being raised before the Assessing Officer nor before the CIT(Appeals) and accordingly, the same was not considered by the Tribunal being raised under the guise of Page 6 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined Rule 26 of the Income Tax Rules, 1962 which only authorises the respondent to support the order of CIT(Appeals) on the issue which has been decided.
11. The Tribunal, therefore, held that when there is no issue decided by the CIT(Appeals), the assessee cannot be allowed to raise such issue for the first time in the appeal filed by the Revenue.
12. Learned advocate Mr. B.S. Soparkar for the appellant submitted that the Tribunal ought to have allowed the assessee to raise the issue of reopening which was not in accordance with law.
13. It was submitted that the Tribunal merely followed the decision in case of Niko Resources as the appellant was in Page 7 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined joint venture with the said concern and denied the appellant to raise additional issue for challenging reopening for the year under consideration. It was therefore, submitted that the impugned order may be quashed and set aside and the matter may be remanded to the Tribunal for considering the additional issue of reopening.
14. Learned advocate Mr. Soparkar also referred to and relied upon the paper book to show that the Assessing Officer after considering the reply filed by the petitioner has discussed in detail the applicability of section 42 of the Act while invoking the provisions of section 115JA for applying Minimum Alternate Tax(MAT) on the Book Profit.
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15. Learned advocate Mr. Soparkar also referred to the decision of CIT(Appeals) wherein also it was recorded that the Assessing Officer vide letter dated 20.12.1999 issued a show cause notice as to why deduction under section 42 of the Act should be not allowed while working out book profit as per provisions of section 115JA of the Act because no such deduction has been provided by debiting Profit and Loss Account. It was therefore, submitted that issue of deduction under section 42 of the Act was already considered during the original assessment and therefore, reopening of the assessment was nothing but a mere change of opinion and if the assessee would have been allowed to raise the contention, the impugned assessment order would have been Page 9 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined quashed and set aside only on the ground of invalid reopening of assessment.
16. It was candidly submitted that on merits, in view of decision of Hon'ble Apex Court in case of Joshi Technologies International Inc v. Union of India reported in (2015) 57 taxmann.com 290 (SC), deduction under section 42 of the Act, is not allowable. It was further submitted that this Court in case of Niko Resources Ltd. V. Assistant Commissioner of Income-tax (Order dated 11.02.2025 passed in Tax Appeal No.1965 of 2008 and allied matters) has followed the decision of Hon'ble Apex Court in case of Joshi Technologies International Inc (supra) and the appeals have been dismissed by answering the question in favour of the Page 10 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined Revenue and against the assessee on merits.
17. Per contra, learned Senior Standing Counsel Ms. Maithili D. Mehta for the respondent Revenue submitted that issue of deduction under section 42 of the Act is squarely covered in favour of the Revenue in view of decision of Hon'ble Apex Court in case of Joshi Technologies International Inc (supra) which is already considered by this Court while disposing the appeals in case of Niko Resources Ltd.
(supra). It was further submitted that issue regarding claim under section 42 of the Act was never discussed or considered during the original assessment proceedings and reliance placed by the appellant assessee on the assessment order and order Page 11 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined of CIT(Appeals) wherein reference to section 42 of the Act is made, is only in respect of applying MAT provisions and not with regard to the merits of the deduction under section 42 of the Act. It was therefore, submitted that the substantial questions of law may be answered in favour of the Revenue.
18. Having heard the learned advocates for the respective parties and considering the facts of the case, so far as question no.1 is concerned, i.e. whether the assessee is entitled for special deduction under section 42 of the Act for the year under consideration or not, same is no more res integra in view of decision of Hon'ble Apex Court in case of Joshi Technologies International Inc reported in Page 12 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined (2015) 57 taxmann.com 290 (SC) wherein Hon'ble Apex Court regarding the issue of deduction under section 42 of the Act has held as under:
"35. From the reading of the writ petition filed in the High Court, the impugned judgment rendered by the High Court thereupon, and also having regard to the arguments advanced before us which have already been taken note of, it is apparent that the fulcrum of the issue, which has to be focused and to be answered, pertains to the benefit of the deductions permissible under Section 42 of the Act. In fact, as is clear from the prayers made by the appellant in the writ petition, the very first direction which the appellant sought was to declare that the appellant is entitled to such deductions in terms of the two PSCs dated 20-02-1995. Incidental issues, while deciding the aforesaid primary issue, which arises relate to the construction of the terms of the said PSCs and also the nature of the contracts which the parties intended to. Another issue relates to the jurisdiction of the High Court under Article 226 of the Constitution to pass Mandamus for Page 13 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined amending the PSCs. All these issues are formulated in the precise form hereunder:
(i) Whether in terms of the provisions contained in two Production Sharing Contracts (PSCs) dated 20-02-1995 executed between the appellant and the Central Government, appellant is entitled to the special allowances stipulated under Section 42 of the Act?
(ii) Whether Model Production Sharing Contract (MPSC) can be read as part of and incorporated in the PSCs?
(iii) Whether there was any intention between the contracting parties, namely, the MoPNG and the appellant for giving benefit of deductions under Section 42 of the Act?
(iv) If so, whether non-inclusion of such a provision in the contract can be treated as accidental and unintentional omission.
(v) If the answer to question no.
(iv) is in the affirmative, whether mandamus can be issued by the Court to the parties to amend the contract and incorporate provisions to this effect?Page 14 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025
NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined
36. We would now proceed to answer these questions seriatum.
37. Answer to question No.(i) - First and foremost aspect which has to be kept in mind while answering this issue is that the Income Tax Authorities while making assessment of income of any assessee have to apply the provisions of the Income Tax Act and make assessment accordingly. Translating this as general proposition contextually, what we intend to convey is that the Assessing Officer is supposed to focus on Section 42 of the Act on the basis of which he is to decide as to whether deductions mentioned in the said provision are admissible to the assessee who is claiming those deductions. In other words, the Assessing Officer is supposed to find out as to whether the assessee fulfills the eligibility conditions in the said provision to be entitled to such deductions. We have already reproduced the language of Section 42, which deals with special provisions of deductions in the case of business for prospecting, etc. for mineral oil. Since, the appellant herein, in its income tax returns for the assessment year in question, i.e., Assessment Year 2005-06, had claimed the Page 15 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined deductions mentioned in Section 42(1)(b) and (c) of the Act, we should take note of the nature of these deductions. Section 42(1)(b) provides for deductions of expenditure incurred in respect of drilling or exploration activities or services or in respect of physical assets used in that connection, except for those assets on which allowance for depreciation is admissible under Section 32. Section 42(1)(c) speaks of allowances pertaining to the depletion of mineral oil in the mining area. In order to be eligible to the deductions, certain conditions are stipulated in this very section which have to be satisfied by the assessees. As is clear from the reading of this Section, these conditions are as under:
(a) it grants such special allowances to those assessees who carry on business in association with the Central Government or with any person authorized by it;
(b) business should relate to prospecting for, extracting or producing mineral oils, petroleum or natural gas;
(c) there has to be an agreement in writing between the Central Government and the assessees in Page 16 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined this behalf;
(d) it is also a requirement that such an agreement has been laid on the Table of each House of Parliament;
(e) the allowances which are claimed are to be necessarily specified in the agreement entered into between the two contracting parties; and
(f) allowances are to be computed and made in the manner specified in the agreement.
38. From the nature of allowances specified in this provision, it is clear that such allowances are otherwise inadmissible on general principles, for e.g. allowances relating to diminution or exhaustion of wasting capital assets or allowances in respect of expenditure which would be regarded as on capital account on the ground that it brings an asset of enduring benefit into existence or constitutes initial expenditure incurred in setting up the profit earning machinery in motion.
39. It is for this reason this Section itself clarifies that the provisions of this Act would be deemed to have been modified to the extent necessary to give Page 17 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined effect to the terms of the agreement, as otherwise, the other provisions of the Act specifically deny such deductions. A fortiorari, the PSC entered into between the parties becomes an independent accounting regime and its provisions prevail over generally accepted principles of accounting that are used for ascertaining taxable income (See - Commissioner of Income Tax, Dehradun & Anr. v. Enron Oil and Gas India Limited(Supra).
40. In the present case, it is an admitted fact that conditions mentioned in Section 42 of the Act are not fulfilled. In the two PSCs, no provision is made for making admissible the aforesaid allowances to the assessee. It is obvious that the Assessing Officer could not have granted these allowances/deductions to the assessee in the absence of such stipulations, a mandatory requirement, in the PSCs.
41. The appellant is conscious of this position. It is for this reason the attempt of the appellant was to read the provisions of MPSC into the agreement. That bring us to the second issue.
42. Answer to question no.(ii) -
Page 18 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined Endeavour of Mr. Ganesh, on this aspect, was to show that the bids were invited on the basis of terms stated in the MPSC which specifically mentioned about deductions under Section 42 of the Act. He also endeavored to demonstrate that the appellant had submitted its bid keeping in view such a categorical stipulation in the MPSC. He also pointed out that on MPSC, opinion of Law Ministry was solicited vide Memo dated 22- 06-1992 and that the Ministry of Law gave its opinion dated 21-07- 1997 opining that benefit of both Sections 293(A) and Section 42 of the Act should be extended to the foreign companies in order to make their participation in these oil fields viable. As per the appellant, it was also made abundantly clear by the Ministry of Law that it was in relation to "foreign companies to be engaged in exploration, development and production of oil ion small sized oil and gas fields under the proposed Production Sharing Contract", thus, drawing no distinction between fields to be explored and those already discovered and also making specific reference to the MPSC. Taking sustenance from the aforesaid material, a passionate plea was made by Mr. Ganesh to read the provisions of Section 42 Page 19 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined contained in MPSC, as opined by the Ministry of Law, into the PSCs which were ultimately signed between the parties.
43. In order to appreciate this argument, we shall have to traverse through the PSCs dated 20-02-1995 which were ultimately signed between the Government and the appellant. We would like to mention here that when this argument was being advanced by the learned senior counsel for the appellant the Court asked him to produce the copy of PSCs, which were otherwise not brought on the record as the Court wanted to find out as to whether there was any such intention expressed in the agreement, namely, to incorporate the provisions of MPSC or the correspondence exchanged between the parties earlier to the signing of this agreement:
"(5) The Government has agreed to enter into this Contract with the Companies with respect to the area referred to in Appendices A & B of this Contract on the terms and conditions herein set forth.
Article 1 - In this Contract, unless the context requires otherwise, the following terms shall have the meaning ascribed to the then hereunder:
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Article 32 - ENTIRE AGREEMENT,
AMENDMENTS, WAIVER AND
MISCELLANEOUS
32.1 This Contract supersedes and replaces any previous agreement of understanding between the Parties, whether oral or written, on the subject matter hereof, prior to the Effective Date of this Contract.
32.2 This Contract shall not be amended, modified, varied or supplemented in any respect except by an instrument in writing signed by all the Parties, which shall state the date upon which the amendment or modification shall become effective.
32.3 No waiver by any Party of any one or more obligations or defaults by any other Party in the performance of this Contract shall operate or be construed as a waiver of any other obligations or Page 21 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined defaults whether of a like or of a different character.
32.4 The provisions of this Contract shall inure to the benefit of and be binding upon the Parties and their permitted assigns and successors in interest.
32.5 In the event of any conflict between any provisions in the main body of this Contract and any provision in the Appendices, the provision in the main body shall prevail.
32.6 The headings of this Contract are for convenience of reference only and shall not be taken into account in interpreting the terms of this Contract."
44. Intention behind the aforesaid clauses is more than apparent, namely, not to look into any other document or correspondence which took place between the parties prior to the signing of this agreement. Not only this, even the so-called "understanding" between the parties is to be ignored as well. It is, therefore, impermissible for the appellant to take the aid of MPSC or the clauses contained therein while construing the terms of PSCs. Therefore, it was not even open to Page 22 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined the Income Tax Authorities to go beyond the stipulations contained in the PSCs while making the assessment and had to exclusively remain within the provisions of the Agreement. On that touchstone, the Assessing Officer had no option but to deny the benefit of deductions/allowances claimed by the appellant in its income tax returns filed for the Assessment Year 2005-06. This bring us to the next question.
45. Answer to question no.(iii) - We have already noted that Article 32.2 categorically provides that this Contract shall not be amended, modified, varied or supplemented in any respect except by an instrument in writing signed by all the parties, which shall state the date upon which the amendment or modification shall become effective. In continuation to what has been observed by us while answering point no.(ii) above, it becomes apparent that the question of any intention to the contrary between the parties does not arise. It is because of the reason that Article 32 of the Agreement specifically supersedes any understanding between the parties prior to the effective date of this contract."
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19. In view of above dictum of law which is squarely applicable to the facts of the case regarding deduction under section 42 of the Act, question is answered in favour of the Revenue and against the assessee.
20. So far as question no.2 regarding not allowing the appellant to raise additional issue for challenging the reopening of the assessment is concerned, we have examined the contention of the assessee for challenging the reassessment proceedings on merits by permitting the appellant assessee to make submissions on the issue of reopening.
21. After perusal of the paper book filed by the appellant assessee containing the assessment order dated 21.03.2000 passed Page 24 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined under section 143(3) of the Act as well as order dated 11.09.2000 passed by the Commissioner of Income Tax (Appeals) and the notices and the replies filed by the appellant assessee, it is found that during the course of original assessment proceedings, the Assessing Officer has not considered the issue of claim made under section 42 of the Act. The Assessing officer has issued the show cause notice for disallowing the claim under section 42 of the Act while working out the Book Profit under the provisions of section 115JA of the Act. If the Assessing Officer had issued notice for disallowing the claim under section 42 of the Act, then applying MAT provision under the Act would not arise. Therefore, when the Assessing Officer has applied the MAT provision, it Page 25 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined is clear that deduction under section 42 of the Act was not under consideration during the original assessment proceedings. Therefore, contention of the appellant assessee that reopening of the assessment was due to mere change of opinion is not tenable and the reopening was rightly made by the Assessing Officer.
22. In view of such facts, we are of the opinion that though the reasons assigned by the Tribunal in not permitting the assessee to raise the additional issue for challenging the reopening may not be tenable, however, in the facts of the case, even if it is held that the assessee was entitled to raise the issue of challenge to reopening, such contention cannot be accepted on merits, therefore, Page 26 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025 NEUTRAL CITATION C/TAXAP/270/2009 CAV JUDGMENT DATED: 13/11/2025 undefined to remand the matter to the Tribunal would be an empty formality as we have already examined the contention of challenge to reopening on merits and are of the opinion that in the facts of the case, the reopening is valid as it cannot be said to be mere change of opinion in absence of any scrutiny and examination by the Assessing Officer on merits of deduction under section 42 of the Act. We, therefore, decline to answer the question no.2 in the facts of the case. Appeal is accordingly disposed of.
(BHARGAV D. KARIA, J) (PRANAV TRIVEDI,J) RAGHUNATH R NAIR Page 27 of 27 Uploaded by RAGHUNATH R NAIR(HC00196) on Mon Nov 17 2025 Downloaded on : Mon Nov 17 22:12:45 IST 2025