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TMI Blog2021 (10) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 2005-06 and 2006-07 vide notice dated 15th March 2010 under section 148 of the Act. In the present case the notice under section 148 was also issued on the same date i.e. 15th March 2010. In the assessment year 2005-06 and 2006-07 the reassessment proceedings were held to be invalid. Therefore, the issue on technical ground was decided in favour of the assessee. The facts of the present case seems to be similar to the assessment year 2005-06 and 2006-07 as the notice under section 148 was issued on the same date. Accordingly, we can draw an inference that the proceedings were initiated merely on the change of opinion. Thus proceedings in the year under consideration were initiated on account of the insertion of explanation to section 80 IA(4) of the Act which is nothing but change of opinion - Decided in favour of assessee, - ITA No. 3142/AHD/2011 - - - Dated:- 7-10-2021 - Shri Mahavir Prasad, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Vartik Chokshi, A.R For the Revenue : Shri S.S. Shukla, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 1st April 2000. As per the explanation the assessee was denied for the benefit of deduction under section 80 IA (4) of the Act if it is arising from the project which is the nature of works contract. Accordingly, the AO assumed that the assessee being a works contract is not eligible for deduction of the benefit granted under section 80 IA (4) of the Act. It was contended by the learned AR that the explanation was brought under the statute by the Finance Act 2009 with retrospective effect from 1st April 2000. As such, at the time of framing the assessment under section 143(3) of the Act there was no such explanation available under the statute which is denying the deduction if it is found that the assessee is engaged in the capacity of works contractor in the project awarded by the Government/ Local Authority. The learned AR was of the view that such amendment with retrospective effect cannot be a basis for initiating the proceedings under section 147 of the Act as held by various Hon ble Courts. The learned AR in support of his contention made reference to the orders of this tribunal in its own case for the assessment years 2005-06 and 2006-07 in ITA Nos. 1864/AHD/2013 and 225/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and, therefore, it needs to be held as mere change of opinion. Hence, the assumption of jurisdiction on the Assessing Officer shall need to be interfered by way of writ jurisdiction. [Para 16] 9.1 When the assessment was framed for the year under consideration there was no such explanation available under the statute. For any particular assessment year the law as applicable to that assessment year has to be prevailed while deciding the issue on hand as held by the Hon ble High Court of Gujarat in the case of M/s Denish Industries Ltd versus Income Tax Officer reported in 271 ITR 340. The relevant extract of the judgment is reproduced as under: Whether for purpose of deciding question under section 147 as to whether assessee had disclosed fully and truly all material facts necessary for relevant assessment year, law applicable would be such law as it stood on date of filing of such return - Held, yes - Whether since when assessee filed its return, it could not have assumed that such a legislative amendment was going to be made with retrospective effect, it could be said that there was failure on part of assessee to disclose truly and fully all material facts - Held, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence the condition precedent for invocation of powers under section 147 r/w ss. 148 and 149 was not fulfilled impugned notice quashed and set aside. We invite your attention to the Judgment by ITAT Mumbai 'J' Bench of Mumbai in the case of Jewel Enterprises Vs. 1TO Ref No. ITA Nos. 6477 6478 /Mum/07 as long as an AO has taken a possible view of a matter after applying his mind to fact of case and legal provision, view so taken cannot be subjected to revision proceedings under section 263 merely because the Commissioner has a different view of that matter. The true test, therefore, must lie in whether or not the view taken by the Assessing Officer could be said to be a possible view of the matter, upon due application of mind to facts of the case as also the applicable legal provisions. In view of the above facts it is very clear that notice issued by you for reassessment under section 148 is not proper and it is requested that the proceedings initiated may kindly be dropped. 9.4 Likewise, we refer the order of the AO dated 8 October 2010 where objection raised by the assessee were disposed off. The copy of the order is placed on pages 111 to 115 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07 as the notice under section 148 was issued on the same date. Accordingly, we can draw an inference that the proceedings were initiated merely on the change of opinion. The relevant extract of the order of the ITAT for the assessment year 2005-06 and 2006-07 in ITA No. 1864/AHD/2013 and 225/AHD/2014 is reproduced as under: At the time of hearing, the ld.counsel for the assessee made reference to the decision of Hon ble Gujarat High court in the case of Classic Network Ltd. Vs. DCIT, (2014) 45 taxmann.com 234(Guj), Parixit Industries P. ltd. vs. ACIT, 352 ITR 349 (Guj) and Sadbhav Engineering Ltd. Vs. DCIT, (2014) 223 taxmann 229 (Guj) (Mag). In all these judgments, the AO has earlier granted deduction under section 80IA, \ thereafter reopened the assessment by re-appreciating the same material. The Hon'ble Court has held that reopening is being made on account of change of opinion and it is not justifiable. In the present case, the Id.AO has re-appreciated the material. Earlier, the AO considered the assessee as engaged in the business of development of infrastructure project, but later on the basis of same material he construed the assessee as a contractor. To our mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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