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TMI Blog2019 (6) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (f) to Section 80-IB(10) of the Act are unsustainable factually and legally respectively. The assessee had provided full details including built up area of the flats sold contrary to what the AO had asserted in the reasons recorded. Further, the clause (f) of Section 80-IB(10) would apply in case of allotment to an individual as the Section itself clearly provides which is not a case in the present case. Contention of the Revenue that certain objections not having been taken by the assessee in response to the notice issued would preclude him from raising a contention that the petition is not borne out from any authority or statutory provision. If there is legal contention which goes to the root of the matter and which would render the action of the AO of issuing notice of reassessment without jurisdiction, such a ground cannot be showed out merely because in the written objections, the petitioner had not thought of raising it. Accepting any such contention would enable the revenue to proceed further with the reassessment which at a later relatably stage when shown to be without jurisdiction, would be liable to be quashed. - Decided in favour of assessee. - WRIT PETITION N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deduction u/s. 80-IB(10) had to be computed on the basis of commercial profit whereas it had been computed in accordance with provisions of Section 28 to 44 of the I.T. Act and after set off of losses in accordance with provisions of Section 70, 71, 72 and 73 of the I.T. Act. Further, it had been observed that assessee had availed deduction on sale of car parking also which cannot be construed as derived from housing projects as the car parking space cannot be sold to flat buyers and excluding car parking the eligible profit works out to ₹ 50,49,35,215/- whereas deduction had been allowed at ₹ 56,13,80,172/-. Therefore, the same resulted in excess allowance of deduction of ₹ 5,74,34,957/-. 3. Further, it was observed that assessee submitted details containing saleable area and carpet area in respect of each flat. On going through the same, it was noticed that the area of each flat was more than 1000 sq. ft. and the corresponding carpet area was less than 1000 sq. ft. and the built-up area was not given. Obviously, the deduction was allowed on the basis of carpet area which is incorrect because the provisions of the Act clearly mentions that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed all the material facts necessary for his assessment during the assessment proceedings which has led to the escapement of income for AY 2011-12. On the basis of the aforesaid tangible material available with me now, I have reason to believe that an amount of more than ₹ 1,00,000/- has escaped assessment for AY 2011-12 within the meaning of section 147 of the IT Act. 2.2 The petitioner raised objections to the notice of reopening under a communication dated 4.9.2018. Such objections were, however, rejected by the Assessing Officer by order dated 17.9.2018. Hence, this petition. 3. Perusal of the reasons recorded by the Assessing Officer would show that he objects to the petitioner s claim of deduction under Section 80-IB(10) of the Act on following three grounds:- i. The petitioner had sold car parking spaces and claimed it as a profit out of development under the housing project. According to the Assessing Officer, such income would not qualify for deduction under Section 80-IB(10) of the Act; ii. According to the Assessing Officer, the assessee had given details of saleable area and carpet area of the facts constructed were in exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king spaces which cannot be stated to be income derived out of development under housing project. The petitioner s claim of deduction under Section 80- IB(10) to that extent was not sustainable; (iii). The petitioner had not raised contentions with respect to the Assessing Officer s ground of unsustainability of deduction of the income derived from car parking spaces. 6. Having thus heard learned counsel for the parties and having perused the documents on record, in our opinion, the impugned notice cannot survive the test of law. Our reasons are as follows:- 7. As noted, the petitioner had filed return of income. One of the main claim in the return was deduction under Section 80-IB(10) of the Act relatable to the petitioner s income from development of housing project. The petitioner s return was taken in scrutiny. During scrutiny assessment, the Assessing Officer had raised queries which can be gathered from the fact that the petitioner had supplied several details as called for by the Assessing Officer. In one of the communications, the petitioner had made detail submissions providing materials on allowability of deduction under Section 80- IB(10) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to not providing built up area details and breach of clause (f) to Section 80-IB(10) of the Act are unsustainable factually and legally respectively. The assessee had provided full details including built up area of the flats sold contrary to what the Assessing Officer had asserted in the reasons recorded. Further, the clause (f) of Section 80-IB(10) of the Act would apply in case of allotment to an individual as the Section itself clearly provides which is not a case in the present case. 11. The last contention of the learned counsel for the Revenue that certain objections not having been taken by the assessee in response to the notice issued would preclude him from raising a contention that the petition is not borne out from any authority or statutory provision. If there is legal contention which goes to the root of the matter and which would render the action of the Assessing Officer of issuing notice of reassessment without jurisdiction, such a ground cannot be showed out merely because in the written objections, the petitioner had not thought of raising it. Accepting any such contention would enable the revenue to proceed further with the reassessment which at a late ..... X X X X Extracts X X X X X X X X Extracts X X X X
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