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TMI Blog2016 (10) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... endered invalid. Once the Assessing Officer examined the claim of deduction u/s. 80IB(10) of the Act in the original scrutiny assessment without there being anything further, it would not be open for him to contend that since a particular aspect of the deduction was not examined, he should be permitted to reopen the assessment. It is not even the case of the Revenue that during the scrutiny assessment, the assessee did not furnish true and full details in response to the queries raised by the Assessing Officer. If the element of the explanation below sub section (10) of section 80IB, as suggested by the counsel for the Revenue, was in the mind of the Assessing Officer, the same is not reflected in the reasons recorded by him. It is well settled that the notice for reopening can be supported on the strength of the reasons recorded by the Assessing Officer. It is even otherwise questionable whether with the aid of a statutory change made later on, assessment can be reopened, a question we need not finally decide in this petition. In any case, the Assessing Officer has not even relied on such explanation in the reasons recorded.- Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that if the assessee has purchased the land for fixed consideration from the land owner and has developed housing project at its own risk, then only the deduction u/s. 80IB(10) is allowable to the assessee. In the case of the assessee, it has not purchased the land from the land owner and also the permission from the AUDA not obtained by the assessee and hence, deduction u/s. 80IB(10) is not allowable to the assessee. In view of the above, I have every reason to believe that due to illegitimate claim of the deduction of ₹ 45,73,135/- made and allowed to the assessee u/s. 80IB(10) of the I.T.Act the income chargeable to tax has escaped assessment within the meaning of section 147 of the I.T.Act." 5. Upon being supplied with such reasons, the assessee objected to the notice of reopening under a letter dated 16.11.2010. Such objections were rejected by the Assessing Officer by an order dated 24.11.2010. Hence, this petition. 6. Learned counsel Mr. Hemani for the petitioner drew our attention to the documents on record contending that the entire claim of deduction under section 80IB(10) of the Act was examined by the Assessing Officer during the original assessment. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e project. 10. In support of your claim of deduction u/s. 80IB of the Act, you are requested to submit the following details:- Sr. no First date of approval of project Date of receipt of BU certificate Size of plot (in sq.mtrs) Built up area of biggest unit of the project Total built up area of shop and other commercial establishment. 9. In reply to such queries, the assessee, under a letter dated 12.02.2007, replied as under: "We submit herewith the following details as required by your goodself: 1. We are doing the construction business and developed the residence project. Our site is situated at village:Bopal, Ahmedabad, Block No. 338. 2. In the assessment year under review, the project has not been completed. And closing stock as work in progress is reflected in the Profit & Loss Account and offered as income. As the project is not completed, we have not raised any bills to the customers. 3. This is the first assessment year and provision regarding the deduction of TDS is not applicable to us. 4. The Xerox copy of the bank statement for the whole year is enclosed herewith in the Annexure-I. 5. The copy of the approved plan and the copy of the concerned auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction u/s. 80IB(10) of the Act on the grounds that the assessee was not a constructive owner of the land and that the permission from AUDA was also not obtained by the assessee. On the basis of documents on record, the Assessing Officer was of the opinion that the assessee was merely a contractor and not a developer of a housing scheme. 12. First and foremost, only on the ground of change of opinion, the notice would be rendered invalid. Once the Assessing Officer examined the claim of deduction u/s. 80IB(10) of the Act in the original scrutiny assessment without there being anything further, it would not be open for him to contend that since a particular aspect of the deduction was not examined, he should be permitted to reopen the assessment. It is not even the case of the Revenue that during the scrutiny assessment, the assessee did not furnish true and full details in response to the queries raised by the Assessing Officer. If the element of the explanation below sub section (10) of section 80IB, as suggested by the counsel for the Revenue, was in the mind of the Assessing Officer, the same is not reflected in the reasons recorded by him. It is well settled that the notice f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire task of development, construction and sale of the housing units to be located on the land belonging to the original land owners. It was also agreed between the parties that the assessee would be entitled to use the the full FSI as per the existing rules and regulations. However, in future, rules be amended and additional FSI be available, the assessee would have the full right to use the same also. The sale proceeds of the units allotted by the assessee in favour of the members enrolled would be appropriated towards the land price. Eventually after paying off the land owner and the erstwhile proposed purchasers, the surplus amount would remain with the assessee. Such terms and conditions under which the assessee undertook the development project and took over the possession of the land from the original owner, leaves little doubt in our mind that the assessee had total and complete control over the land in question. The assessee could put the land to use as agreed between the parties. The assessee had full authority and also responsibility to develop the housing project by not only putting up the construction but by carrying out various other activities including enrollin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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