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TMI Blog2016 (8) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ils, he had framed the assessment. It would therefore, not be permissible for the Assessing Officer to reopen such issue and that too beyond a period of four years from the end of relevant assessment year. Quite apart from the question of change of opinion, there was simply no failure on part of the assessee to disclose truly and fully material facts. As noted, in the original returns, the assessee had while claiming deduction, provided supporting materials in the form of audit report in Form No.10CCB. During the assessment proceedings, the assessee provided further details as called for by the Assessing Officer. Even the reasons recorded by the Assessing Officer for issuing notice for reopening do not even indirectly suggest that there was any failure on part of the assessee to disclose true and full facts. In fact, the reasons rely solely on the materials already on record. It can thus be seen that the Assessing Officer merely desires to revisit the claim which was granted after full scrutiny in the original assessment. His opinion that the claim was not properly examined during such assessment would not authorise him to reopen the assessment. The reasons are based on mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived from such contracts executed. In view of the provisions of section 80IA(4) of the IT Act the deduction is allowable to any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facilities. As per explanation to section 80IA(13) which as been substituted by the Finance (No.2), Act, 2009 w.e.f. 01.04.2000, the deduction u/s 80IA(4) of the Act shall not be allowed to the persons who are doing business in the nature of works contract awarded by any person (including the Central State Govt.) On the basis of details collected during the course of assessment it is seen that the receipts are mainly from works contract with Valsad (R B) Division, Valsad which is a Government body. On further perusal of copies of RA bills of the contract, it is noticed that the same are in respect of construction of bridge across Nagrol Crock. It is further seen that the assessee has been awarded contract for the completion of work by the R B Division of Government for which the assessee has been raising the bills. Therefore, the work done by the assessee is a works contracts with the Government and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said provision, Rather, the position which was earlier apparent on a careful look of the provisions of subsection( 4) has now been made available even at the cursory look through the Explanation by clarifying the hitherto intention of the legislature that no person executing the works contract shall be eligible for deduction u/s 80IA, even if it is an enterprise or undertaking as referred to in subsection (1). The language of this explanation makes it crystal clear that the benefit under subsection (4) cannot be provided to a business which is in the nature of works contract awarded by any person including the Central or State Government and executed by the undertaking or enterprise referred to in subsection( 1). From the memorandum explaining the rationale behind the substitution of Explanation, it can easily be seen that the legislature clarified its intention beyond any doubt that the deduction cannot be allowed in relation to a business which is in the nature of works contract. 6. In consideration of the above discussion and in view of the provision of section 80IA of the Income Tax Act, 1961 as applicable for the year under consideration, it is clear that the assessee is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to explanation to section 80IA(13) which was brought in statute book by virtue of Finance Act 2009 but with retrospective effect from 1.4.2000 which provides that deduction under section 80IA(4) is not available to persons who are doing business in the nature of works contract awarded by any person including the Central or State Government. 7. In this background, we may refer to the materials on record. The assessee had filed the returns showing gross total income of ₹ 70.52 lacs and entire sum was claimed by way of deduction under section 80IA of the Act. Along with the returns, the petitioner had produced audit report in Form no.10CCB which also refers to deduction claimed under section 80IA(4) of the Act. The entire working out of the deduction also formed part of the returns. 8. This being the sole claim of the assessee during the scrutiny assessment, the Assessing Officer verified the same for which purpose under a letter dated 25.1.2013, he conveyed as under : 7. On verification of audit report, it is noticed that you have claimed deduction u/s 80IA of the IT Act. In this contention you are requested to furnish the following : (i) Nature of work carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. had jointly applied to the Executive Engineer, Valsad (R B) Division, Valsad and tender sanctioned by the Government of Gujarat, R B department, Gandhinagar is mainly established to construct a bridge (i.e. developing infrastructure facility) across Nargol Creek Near Nargol village on Nargol-Dehri-Gowda Road upto Maharashtra State Border CSH6 Dist. Valsad. This is the first year of the firm and during the year the assessee has done business activity of construction of bridge. 4. As per the Running Account Bills, date of written order to commence work is 01.09.2009 and date of completion as stipulated in the contract is 31.08.2011. The Agreement No. is B2/80 Year 200910. 5. After verification of details furnished, the total income of the assessee is recomputed as under : Gross total income as per Return of Income Rs.70,52,150/- Less : Deduction u/s80IA(4)(i) of the Act Rs.70,52,150/- Return total income Rs. NIL Assessed total income Rs.NIL 11. It can thus be ..... 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