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TMI Blog2012 (1) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... y disclose all material facts. The suggestion that the assessee failed to disclose the nature of works executed and that the same was executed only as works contractor and not as a developer, cannot be accepted for two reasons. Firstly, the reasons recorded do not refer to such a ground. Secondly, when the assessee filed the return of income, the Explanation in question was not in picture. It would not be possible to expect the assessee to comply with the requirements of such Explanation by making disclosures in this regard which Explanation did not form part of the statute book when he filed his return – Decided in favor of assessee. - 18574 of 2011 - - - Dated:- 16-1-2012 - MR.JUSTICE AKIL KURESHI, MS JUSTICE SONIA GOKANI, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in its revised return with respect to Section 80IA of the Act. 5. The Assessing Officer thereafter issued a notice on 16.3.2011 stating that he had reason to believe that income chargeable to tax for the assessment year 2005-06 has escaped assessment. He, therefore, proposed to reopen assessment for the said year and that therefore the assessee should file return within 30 days from the date of receipt of the notice. 6. The Assessing Officer also supplied the reasons recorded for reopening the assessment in which it is stated that :- 2. On verification of the records, it is noticed that the assessee has filed form No.10CCB showing the total sale of Rs.5,76,29,462/- and the profit derived on it is Rs.2,11,87,992/- and the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment and making grievance that the Assessing Officer consumed nearly 6 months time for disposing of the objections raised by the petitioner and thereafter proceeded to pass the final order of assessment in less than 2 weeks, thereby giving no opportunity to the petitioner to avail of its legal remedies. 8. Counsel for the petitioner submitted that the assessment previously framed was reopened beyond the period of 4 years. The reasons recorded do not even suggest that the Assessing Officer had reason to believe that income chargeable to tax had escaped assessment for the reason of the assessee failing to disclose truly and fully all material facts. He submitted that the sole ground on which the assessment is sought to be reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80IA of the Act. Firstly,we are of the opinion that by virtue of such retrospective amendment assessment previously framed after scrutiny could not have been reopened beyond the period of 4 years without any thing on record to suggest that the income chargeable to tax had escaped assessment for the failure on the part of the assessee to fully and truly disclose all material facts. We may notice that the Explanation in question, which was introduced in the year 2009 but with retrospective effect from 1.4.2000 reads as under:- Explanation- For the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in subsection (4) which is in the nature of a works con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements of such Explanation by making disclosures in this regard which Explanation did not form part of the statute book when he filed his return. 16. In the result, we have no hesitation in quashing the notice for reopening. The subsequent order of assessment which is based on such reopening also therefore stands invalidated. 17. Before closing we would recall that the objections raised by the assessee against the notice for reopening remained pending with the Assessing Officer for nearly 6 months. Sometime in the middle of December, 2011 the Assessing Officer disposed of such objections and, thereafter proceeded to pass the final order of assessment in less than two weeks. Had this been an isolated case of such nature, we w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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