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TMI Blog2015 (8) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... M. R. Shah And S. H. Vora, JJ. For the Appellant : Mr SN Divatia, Adv. For the Respondent : Mr KM Parikh, Adv. JUDGMENT ( Per : Honourable Mr. Justice M. R. Shah ) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned notices dated 29.03.2014 and 31.03.2014, by which, the reassessment for AY 2009-10 is reopened in exercise of powers under Section 147 of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 1.1. The petitioner has also prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 02.01.2015 passed by the AO rejecting the objections of the petitioner and upholding validity of the reassessment proceeding under Section 147 of the Act for AY 2009-10. 2.0. The facts leading to the present Special Civil Application in nutshell are as under: 2.1. That the assessee filed his return of income for AY 2009-10 declaring total income at ₹ 15,69,994/- after claiming deduction under Section 80IB(10) of the Act of ₹ 77,41,250/-. That the return of income was sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned notice under Section 148 of the Act to reopen, complete and finalize the assessment for AY 2009-10 in exercise of powers under Section 147 of the Act is absolutely illegal and invalid. 3.1. It is submitted that the finalize and complete assessment for AY 2009-10 has been sought to be reopened on the ground that though the petitioner assessee was not entitled to the deduction under Section 80IB(10) of the Act of ₹ 77,41,250/-, the AO had allowed the same and therefore, the income of amounting to ₹ 77,41,250/- has escaped assessment. It is submitted that as such the deduction claimed by the assessee under Section 80IB(10) of the Act of ₹ 77,41,250/- came to be considered by the AO in detailed. It is submitted that as such the case was selected for scrutiny assessment and the petitioner was served with the notice under Section 142(1) of the Act and the AO sent specific questionnaire with respect to the deduction claimed under Section 80IB of the Act. It is submitted that in response to the same the petitioner replied to the same and submitted necessary documents / materials in respect of his claimed under Section 80IB of the Act and only thereafter and havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim and thereafter having forming an opinion and having reason to believe that the income amounting to ₹ 77,41,250/- as escaped assessment, assumption of the jurisdiction by the AO to reopen the assessment for AY 209-10 is absolutely just and proper, which is not required to be interfered with by this Court at this stage in exercise of powers under Article 226 of the Constitution of India. Making above submissions, it is requested to dismiss the present Special Civil Application. 5.0. Heard the learned advocates for the respective parties at length. 6.0. At the outset, it is required to be noted that finalize and complete assessment for AY 2009-10 is sought to be reopened by impugned order on the following reasons recorded. The assessee is engaged in the building construction business, has filed his return of income for AY 2009-10 on 29.09.2009 declaring income of ₹ 15,69,994/-. The assessment was completed under Section 143(3) and income and returned income was accepted vide order dated 04.11.2011. As per subsection 10 of the section 80IB, the date of completion of construction of the housing project shall be taken to the date on which the completion cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the deduction u/s. 80IB(10) is claimed. The copy of purchase deed of land (with original for verification) with reference to the housing projects in respect of which the deduction is claimed. c. Copy of Plan Layout with approval letter of Local Authority for the housing projects under reference with original for verification. Please also furnish the Broacher of the housing projects. d. Details of residential unit wise built up area of each residential unit with supporting evidence. Please note that the built up area is defined to mean the inner measurements of the residential unit at the floor level including the projection and balconies as increased by the thickness of the wall but not include the common are shared with other residential units. e. Date of commencement and completion of the housing project with cogent and sufficient evidences in support thereof. Please also furnish the copy of permission letter of Local Authority for commencement of the construction of project. f. The details is in the following manner in respect of the residential units sold/ booked. Full name of the person to/ for whom sold / booked Complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in catena of decision in the case of Kelvinator of India Ltd (supra), reassessment on mere change of opinion of the AO is not permissible. In the case of Gujarat Power Corporation Ltd (supra), the Division Bench of this Court in para 42 and 43 has observed and held as under: 42. Bearing in mind these conflicting interests, if we revert back to central issue in debate, it can hardly be disputed that once the Assessing Officer notices a certain claim made by the assessee in the return filed, has some doubt about eligibility of such a claim and therefore, raises queries, extracts response from the assessee, thereafter in what manner such claim should be treated in the final order of assessment, is an issue on which the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partially, in what manner the assessment order should be framed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en while finalizing original assessment under Section 143(3) of the Act, the AO along with notice under Section 142(1) of the Act sent questionnaire to the petitioner, more particularly, with respect to deduction claimed under Section 80IB of the Act by the assessee and to which petitioner assessee supplied necessary details as required by the AO and only thereafter when the AO allowed the deduction under Section 80IB of the Act claimed by the assessee, the impugned reassessment proceedings/ reopening of the assessment for AY 2009-10 is nothing but on mere change of opinion of the AO, which is not permissible. Under the circumstances, impugned notice under Section 148 of the Act, to reopen the complete and finalize the assessment for AY 2009-10 in the impugned reassessment proceedings for the reasons recorded is absolutely illegal and invalid. 7.0. In view of the above and for the reasons stated above, petition succeeds. The impugned notices under Section 148 of the Act dated 29.03.2014 and 31.03.2014 to reopen the assessment for AY 2009-10 is hereby quashed and set aside and consequently impugned reassessment proceedings for AY 2009-10 is hereby quashed and set aside on the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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