9911796707
TMI Blog2020 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act on 18.03.2014, assessing the income of the petitioner at Rs. 4,26,43,229/- and book profit at Rs. 7,81,97,996/-. 2.1 Subsequently, the Assessing Officer issued the impugned notice dated 13.03.2018 under section 148 of the Act, reopening the assessment of the petitioner for assessment year 2011-12. Later on, by a letter dated 10.07.2018, the reasons for reopening the assessment came to be furnished to the petitioner. By a letter dated 14.09.2018, the petitioner raised objections against the reopening of assessment on merits and requested the respondent to drop the re-assessment proceedings. However, by a letter dated 05.10.2018, the respondent rejected the objections. The petitioner has, therefore, presented the present petition challenging the impugned notice as well as the order passed by the respondent rejecting the objections filed by the petitioner. 3. Mr. B. S. Soparkar, learned advocate for the petitioner, invited the attention of the court to the reasons recorded for reopening the assessment to submit that the reasons recorded are factually incorrect. It was submitted that at the time of scrutiny assessment, the petitioner had given the correct facts; however, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under section 80IB(10) of the Act is a revised approval granted by the GUDA on 06.02.2008. Referring to the provisions of section 80IB(10) of the Act, it was submitted that the Explanation thereto provides that in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. It was submitted that the local authority having first approved the plan on 16.05.2005, the housing project is required to be deemed to be approved on that date and accordingly the entitlement to the benefit under section 80IB(10) of the Act has to be computed by considering the date of approval as 16.05.2005. It was submitted that the completion date has to be computed from the date of initial approval and what is to be considered is the first approval; whereas, in this case, the first approval has been given in 2005 and hence, the petitioner would be entitled to get deduction under section 80IB (10) of the Act, provided it completes the project within a period of four year from the date of initial approval. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the Building Use Permission has been granted in respect of Vedika-E series. It was submitted that insofar as the approval of residential housing project is concerned, the first approval was granted on 06.02.2008 and that insofar as the use of the word 'revised' in the approval granted to the petitioner in the year 2008 is concerned; it is in the context of land and not qua the approval of the project. It was submitted that the decision of this court in the case of Radhe Developers (supra) would not be applicable in the facts and circumstances of the present case. It was submitted that in this case, Sheetal Developers and the present petitioner are two different assessees and the two plans submitted by them are different. Insofar as the first plan submitted by Sheetal Developers in the year 2005 is concerned, such plan was not eligible for the benefit of section 80IB(10) of the Act. The attention of the court was invited to the fact that in the subsequent year, the Assessing Officer had disallowed the claim under section 80IB(10) on the very same ground, against which the petitioner had approached the Commissioner of Income Tax (Appeals) who had set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year in which the housing project is approved by the local authority. (iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l year in which the housing project is approved by the local authority. 8. In the aforesaid statutory backdrop, the core question that arises for consideration in the present case is as to on which date such approval can be said to have been granted by the local authority. It is the case of the respondent Assessing Officer that such approval was granted by the Kudasan Gram Panchayat on 16.03.2005, whereas it is the case of the petitioner that such approval was granted by the GUDA on 06.02.2008. In case the approval was granted on 16.03.2005, the housing project would have to be completed within four years from the end of the financial year 2005 and since the building use permission had been granted on 31.03.2012, the petitioner would not be entitled to deduction under section 80IB(10) of the Act. However, if such approval was granted on 06.02.2008, the housing project can be said to have been completed within the time allowed under clause (a)(iii) of section 80IB(10) of the Act entitling the petitioner to deduction under section 80IB(10) of the Act. 9. In the present case, the first approval was granted by way a Raja Chitthi (Permission) by the Kudasan Gram Panchayat in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment of the petitioner for the assessment year under consideration. 10. In this regard, a perusal of the approval granted on 16.03.2005 by the Kudasan Gram Panchayat, makes it abundantly clear that such approval was only granted for construction of an office building and not for developing and building a housing project. For the first time, approval for a housing project on the subject land came to be granted only on 06.02.2008 by the GUDA. While in the approval, such plan is referred to as a revised plan, as rightly pointed out by the learned advocate for the petitioner, it is the practice of the urban development authority to refer to any subsequent approval granted in respect of any land as a revised plan. Since, in the present case, earlier a project for residential plots was approved and approval was granted on 16.03.2005 in respect of an office building, in the subsequent approval granted to the petitioner in respect of the subject land for a housing project, the plan is referred to as a revised plan. Nonetheless, from the facts as emerging from the record, it is manifest that insofar as approval for a housing project in respect of the subject land is concerned, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot in any manner be termed as non-disclosure of relevant facts necessary for the assessment. Under the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, the Assessing Officer has failed to cross the first threshold for assuming jurisdiction under section 147 of the Act, beyond a period of four years from the end of the relevant assessment year. 12. Besides, even on merits, since the permission dated 06.02.2008 was the first approval granted for a housing project on the subject land, there is no material on the basis of which the Assessing Officer could have formed the belief that income chargeable to tax has escaped assessment. The impugned notice dated 13.03.2018 issued by the respondent under section 148 of the Act, therefore, cannot be sustained. 13. For the forgoing reasons, the petition succeeds and is accordingly, allowed. The impugned notice dated 13.03.2018, issued by the respondent under section 148 of the Income Tax Act for assessment year 2011-12 as well as all proceedings pursuant thereto, are hereby quashed and set aside. Rule is made absolute accordingly with no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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