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TMI Blog2014 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... e normal provisions of the Act was arrived at after claiming 100% deduction of the profit and gains of the business of Rs. 3,52,02,368/- under section 80IA of the Act. The case was completed in scrutiny manner under section 143 (3) of the Act, on 22.12.2008 by accepting the income declared by the assessee in its return and tax was charged under section 115JB. On verification of the assessment records revealed that the assessee was allowed deduction u/s. 80IA for development of fourlane Rail Over Bridge [ROB] in lieu of an existing under pass at Chhayapuri [Near GSFC Junction] on Mumbai Delhi Broad Gauge Railway Line, Baroda. The project, as per the assessee was given to it on Build Operate & Transfer [BOT] basis by Gujarat State Road Development Corporation, a Government of Gujarat enterprise incorporated under the Companies Act, 1956. From the records, it was observed that assessee has entered into a 'concession agreement' with GSRDC on 13.10.2001 wherein, assessee was entitled to collect from ROB for 181 months and at the end of the stipulated period. ROB was to be transferred to Government of Gujarat. Based on the concession agreement between assessee and GSRDC, the government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operate and Transfer [BOT] basis. Under the agreement, the petitioner was allowed to collect toll at a specified rate for a certain period. The Assessing Officer held a belief that GSRDC was a company and not a statutory body or local authority, and therefore, the condition laid down in Section 80IA[4](i)(a) of the Act was not fulfilled. The Assessing Officer further observed that the petitioner had only subcontracted the project allotted to GSRDC by the State Government. The Government had issued a notification authorizing collection of toll, which is also issued in favour of GSRDC and not the assessee company. On such grounds, he held a reason to believe that the income chargeable to tax had escaped the assessment. In the entire reasons recorded, the Assessing Officer did not point out that such income chargeable to tax had escaped assessment due to failure on the part of the assessee to disclose truly and fully all material facts. Quite part such narration being simply absent from the reasons recorded, no such conclusion can be reached on the basis of the material emerging either from the reasons recorded, or even outside of it. In fact, the reasons recorded suggest that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of which cash compensatory support had been claimed as not amounting to the assessee's income ceased to be operative by reason of retrospective legislation." In the above decision, the apex court followed its decision in Cement Marketing Company of India Limited v. Asst. CST [1980] 124 ITR 15 under the sales tax law where the court said that a return cannot be said to be "false" unless there is an element of deliberateness in it. It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of the assessee and there is not reasonable explanation forthcoming from the assessee for such want of care, the court may in a given case, infer deliberateness and the return may be liable to be branded as a false return. But where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a "false" return. The same reasoning would apply for holding that for the purpose of deciding the question under section 147 whether the assessee had disclosed fully and truly all material facts necessary for the relevant assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second condition, viz. failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment is concerned, on a plain reading of the reasons recorded, it is apparent that the same are totally silent as regards any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the relevant assessment years. From the reasons recorded it is apparent the assessments are sought to be reopened on the ground that as per the explanation given below subsection (13) of section 80IA of the Act, which has been substituted by the Finance Act No.2 of 2009 with retrospective effect from 1.4.2000, deduction under section 80IA would not be admissible to an assessee who carries on business which is in the nature of works contract. That the petitioner assessee being a civil contractor working for the Government is not eligible for deduction under section 80IA as claimed by the assessee, hence there was reason to believe that income chargeable to tax has escaped assessment for the assessment years under consideration. The record of the case does not in any manner indicate that proceedings under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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