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TMI Blog2016 (10) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... also appearing from the record that in response to the query which has been raised by the respondent authority, the petitioner has provided adequate material related to the development work which was undertaken by the petitioner and the petitioner has tried to justify his claim by furnishing necessary documents including the agreement, profit and loss account as well as audit report. The said material has also been examined in detail in past at the time when scrutiny assessment has taken place Reopening is admittedly beyond the period of four years and there is no element of non disclosure material facts on the part of the petitioner, we are of the opinion that the action impugned is not permissible and therefore, in view of above situation, the impugned action is invalid and we hereby quash and set aside the same and accordingly, the impugned notice dated 12.03.2010 as also the order dated 21.12.2010 are quashed and set aside. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 16552 of 2010 - - - Dated:- 5-10-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR MANISH J SHAH, ADVOCATE FOR THE RESPONDENT : MR NITIN K MEHTA, ADVOCATE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informing the petitioner that he had a reason to believe that income has escaped assessment and thereby, asking the petitioner to submit the return. It is emerging from the record that the impugned notice is given beyond the period of four years from the end of relevant assessment year and upon receipt of the same, under a communication dated 20.03.2010, the petitioner has requested the authority to treat the earlier return which has been filed as one in response to this notice under section 148 of the Act. Subsequently, on 15.12.2010, a notice came to be given to the petitioner, which indicates that petitioner has not fulfilled the condition under section 80IB(10) of the Act. The said notice was given on 15.12.2010, as a result of which, under a communication dated 20.03.2010, the petitioner has requested the Assessing Officer to provide copy of reasons which have been recorded, and the Assessing Officer has supplied under a communication dated 21.12.2010. The said reasons reads as under: The assessee has filed the return of income for A.Y. 20032004 on 29/11/2003 showing total income of Rs. Nil after claiming deduction of ₹ 1,83,17,434/- u/ s. 80IB(10) of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed fully and truly all material facts related to claim of section 80IB(10) of the Act and therefore, in absence of any failure on the part of the petitioner in fully and truly disclosing all material facts beyond a period of four years, it is not open for the respondent authority to reopen the assessment. Learned counsel has further submitted that sole reason which has been reflecting from the record for reopening is the insertion of explanation attached to section 80IB(10) of the Act with retrospective effect and therefore, learned counsel submitted that in view of the consistent pronouncements by this Court in catena of decisions, the effect cannot be given and by virtue of which, the reopening cannot take place beyond the period of four years, more particularly in absence of any element of non disclosure. Based upon this, learned counsel submitted to set aside the impugned action of the respondent authority. 5. To oppose the petition, learned counsel for the Revenue Mr.N.K.Mehta submitted that the authority is thoroughly justified in giving effect to the retrospectivity attached to the explanation under section 80IB(10) of the Act and he submitted that no interference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect answer to the central issue and therefore, we deem it proper to refer the same. 7. In case of Denish Industries Ltd. v. Income-tax officer reported in (2004) 271 ITR 340 , the Division Bench of this Court while dealing with this very issue related to retrospective effect of statutory amendment for reopening of assessment beyond the period of four years, has dealt with the issue at length and has observed under: It is true that when there is a statutory amendment with retrospective effect, the statutory amendment has to operate as if the law as amended was there on the statute book. However, as per the settled legal position the fiction is to operate within the field which it is meant. Hence, if the proceedings were pending on 1/4/1986 when the statutory amendment was made, whether assessment proceedings or proceedings by way of appeal or revision or reference, Explanation 8 would have certainly operated. However, on the question whether the assessee had failed to disclose fully and truly all material facts necessary for assessment, it is obvious that when the assessee had filed its return in 1983 it could not have assumed that such a legislative amendment was goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted the fact that there is no failure on the part of the petitioner to disclose fully and truly all material facts. Only by way of submission advanced before the Court it is contended that in the light of the amendment of section 80IB, it is deemed that the petitioner has failed to disclose the correct facts. As to whether or not there is any failure on the part of the assessee in disclosing fully and truly all material facts necessary for his assessment, is a matter of fact and there can be no deemed failure as is sought to be contended on behalf of the respondents. In the circumstances, in absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment years under consideration, the notices under section 148 of the Act having been issued after the expiry of a period of four years from the end of the relevant assessment years, the very initiation of proceedings under section 147 of the Act stand vitiated and as such cannot be sustained. 9. In case of Classic Network Ltd. v. Deputy Commissioner of Income-taxCircle1 reported in (2014) 45 taxmann.com 234 (Gujarat) , in the context of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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