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TMI Blog2021 (4) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the audit report as well as Form 10CCB and considering these materials, the then Assessing Officer did not disallow the deduction. Therefore, the condition precedent for reopening of the assessment beyond 4 years having not satisfied and on this ground also, the impugned notice is required to be quashed and set aside. No hesitation to hold that there was no basis or jurisdiction for Assessing Officer to form a belief that any income of the assessee chargeable to tax for the year under consideration, had escaped assessment under Section 147 of the Act and reasons recorded could not have led to formation of any belief that income had escaped assessment. - R/Special Civil Application No. 18103 of 2019 - - - Dated:- 23-3-2021 - Honourable Mr. Justice J.B.Pardiwala And Honourable Mr. Justice Ilesh J. Vora For the Petitioner(s) : Ms Vaibhavi K Parikh For the Respondent(s) : Mrs Kalpana K Raval ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. By this writ application under Article 226 of the Constitution of India, the writ applicant seeks to challenge the notice dated 30.09.2019 issued by the respondent under Section 148 of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission on 01.10.2009 and 11.02.2010 respectively. As per the provisions u/s 80IB(10) deduction shall be allowed to an undertaking developing and building housing projects approved before 31st day of March 2008 by a local: authority. Therefore in view of the above deduction u/s 80IB(10) of the IT Act claimed of ₹ 19,28,66,167/was required to be disallowed. On verification of the facts, there is income escaping assessment of ₹ 19,28,66,167/-. The assessment was carried out for the relevant period, but the assessee has not disclosed fully and truly all the material facts necessary for assessment. Reasons recorded on 20.08.2019 : 2. The reasons for reopening of your assessment for A.Y.2012-13 as recorded is as under: The assessee firm constituted on 01.01.2006 is engaged in the business of Developing and building housing Project, land organizers, building contractors and has filed return of income for the A. Y. 2012-13 on 30.09.2012 declaring total income of Rs. Nil after claiming the deduction of ₹ 19,28,66,167/- u/ s 80IB(10). The ITR was processed u/s 143(1) of the Income Tax Act, 1961.The case was selected for scrutiny assessment and assessment u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above referred deduction of ₹ 19,28,66,167/- u/ s 80IB(10) required to be disallowed. On verification of the facts, there is income escaping assessment of ₹ 19,28,66,167/- . The assessment was carried out for the relevant period, but the assessee has not disclosed fully and truly all the material facts necessary for assessment. The facts of the case are covered by the explanation 1 to section 147 of the I.T. Act, 1961. As such, in view of the above facts and material, I have reason to believe that the above Income totaling amount to ₹ 19,28,66,167/- has escaped assessment because of the non-disclosure of full and true all the material facts necessary for assessment. Hence, notice u/s 148 r.w.s 147 of the I.T. Act 1961 is to be issued for the A.Y. 201213. 3. Due to change in incumbent of this office, you are hereby given a fresh Opportunity of being heard as per the provisions laid down in section 129 of the I.T. Act, 1961 to continue with the assessment proceedings. 2.5 The assessee vide letter dated filed on 31.07.2019, raised objections against reopening of the assessment, which came to be rejected by the respondent vide order dated 19.09.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the revenue opposed the writ application, contending that the assessee had not disclosed the true facts with regard to development permission in respect of building project for which the claim of the deduction under Section 80IB(10) of the Act was allowed. It was submitted that as per the provisions of Section 80IB(10) of the Act, deduction shall be allowed to housing projects approved before 31.03.2008 by a local authority. Therefore, considering the facts of the present case, the local authority of the concerned jurisdictional project had not accorded approval on or before 30.08.2008 and after noticing the facts that the assessee had not disclose true facts at the relevant time, the Assessing Officer has reason to believe that the income has escaped assessment. Referring to the assessment order dtd 13.03.2015, she urged that some of the issues were not properly considered by the Assessing Officer and therefore, it could not be said that there was a conscious application of mind applied by the Assessing Officer in the previous proceeding. 8. In view of the above contentions, the learned counsel appearing for the revenue urged that both the writ applications may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and allowed the claim of deduction. 14. In the background of the aforesaid facts and close scrutiny of the reasons recorded, we are of the view that the impugned notice is without authority of law as the initiation of proceedings is nothing but a mere change of opinion. After careful examination of the assessment order and materials furnished by the assessee at the stage of previous assessment, would go to show that there was conscious application of mind to the issue of deduction by the then Assessing Officer and after considering the evidences and materials, he thought not fit to disallow the deduction. Therefore, a mere change of opinion while persuading the same material by the Assessing Officer, while initiation of the proceedings, cannot be a reasons to believe that the income has escaped assessment. Thus, once an opinion is formed on the issue of deduction and assessment on the issue was framed under Section 143 of the Act, the reopening on the same set of facts and material, without there being any tangible material would be nothing but a change of opinion. 15. We take the notice of the fact that the assessee had disclosed true facts with regard to claim of de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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