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TMI Blog2019 (1) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... s settled position of law that reopening of assessment is not to review the assessment order passed under Section 143(3). Therefore, no reopening is permissible on mere change of opinion. In the present facts, we note the reopening notice is issued beyond a period of four years from the end of the assessment year 2011-12 in respect of assessment completed under Section 143(3) of the Act. The basis of the impugned notice is the Government approved Valuer's Certificate dated 24th March, 2014. We note that this very certificate was a subject of consideration while passing the assessment order dated 25th March, 2014 under Section 143(3). The reason do not state that the above certificate dated 24th March, 2014 came to the notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer by a scrutiny assessment passed an order dated 25th March, 2014 under Section 143(3) of the Act allowing the petitioner's claim for benefit of deduction under Section 80IB(10) of the Act. This after having considered the issue of eligibility of Section 80IB(10) of the Act to the project as some of the flats appeared to be in excess of the area of 1,500 sq.ft. 4. On 29th March, 2018, the impugned reopening notice was issued. In support of the impugned notice, the Assessing Officer had recorded the following reasons : 1. Brief of the Assessee : The assessee is a partnership firm falling within the jurisdiction of Income-Tax Officer, Wd 5(1), Pune. The assessee firm is engaged in the business of development of prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The project consisted of 252 flats in 5 buildings A,B,C,D E. The Valuer's Report dated 24.3.2014, vide Para Nos. 4.2 and 4.3 clearly mention (as per Area Statement enclosed therewith) that areas of 8 flats on the 1st floor and 16th flats on the 9th floor are in excess of 1,500 sq.ft. and terrace area was also a part of the flat. In accordance with the provisions of Sec. 80IB(10)(c) of the Act, the built up area of each residential unit should not be more than 1500 sq.ft. in order to be eligible to claim deduction u/s 80IB(10) of the IT Act. As per Sec. 80IB(a), definition of built-up area is builtup area means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Report, it is found that the areas of as many as 24 flats in the said project constructed by the assessee are in excess of 1,500 sq.ft. (including terrace areas). The assessee firm, therefore, did not comply with the conditions laid down u/s 80IB(10)(c) of the Act. Hence, the income of the assessee has been escaped from assessment to the extent of the deduction allowed u/s 80IB(10) i.e. ₹ 8,19,29,331/. 6. Basis of forming reason to believe and details of escapement of income : In view of the above Para Nos. 2, 3, 4 and 5 and the information in my possession, I have reason to believe that the assessee's income chargeable to the extent of ₹ 8,19,29,331/has been escaped from assessment. I am, therefore, satisfied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the impugned notice is without jurisdiction and in support made the following submissions : (a) The impugned notice is issued in respect of an assessment completed under Section 143(3) of the Act, beyond the period of four years from the end of the relevant assessment year and in the absence of any failure to disclose fully and truly all material facts, is without jurisdiction. This particularly when the Government approved Valuer's Report dated 24th March, 2014 was a part of assessment under Section 143(3) of the Act; and (b) The reasons recorded in support of the impugned notice clearly indicate a change of opinion on the part of the Assessing Officer as report dated 24th March, 2014 of the Government approved v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n do not state that the above certificate dated 24th March, 2014 came to the notice of the Assessing Officer after passing the Assessment Order dated 25th March, 2014. Thus, there is no failure to disclose all material facts truly and fully on the part of the petitioner during regular assessment proceedings. Thus, on the above ground itself, the impugned notice is bad. We further find that in the assessment order dated 25th March, 2014 under Section 143(3) of the Act, the above certificate dated 24th March, 2014 was considered before passing the order. In the above circumstances, the impugned notice is an attempt to reopen an assessment completed under Section 143(3) of the Act based on the change of opinion. The Government approved valuer& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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