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TMI Blog2022 (3) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... tions were allowed by the learned Judge on the ground that there is no proof to show that there was escapement of income warranting initiation of re-assessment proceedings. In the decision of the Division Bench of the Gujarat High Court in the case of Ganesh Housing Corporation Limited vs. Deputy Commissioner of Income Tax, Circle 4 1 [ 2016 (9) TMI 764 - GUJARAT HIGH COURT ] it was held that re-assessment proceedings are not warranted if the assessee did not suppress any material particulars at the time of assessment or the assessing officer had not collected any new materials to show that there was escapement of assessment. The contention of the learned Senior Standing Counsel for the appellants that the re-assessment is not solely based on the amendments brought to the statute, but due to the fact that the respondents herein undertook and constructed the building as a contractor and not as a developer, also cannot be sustained in the light of the decision of the Division Bench of the Gujarat High Court mentioned supra. The learned Judge also categorically held that the Assessing Officer is not in possession of tangible material evidence to initiate re-assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re rejected. 4. Assailing the orders of rejection, the respondents herein have filed the writ petitions contending that the Assessing Officer was not justified in reopening the assessment after expiry of four years. Further, there was no failure on the part of the respondents to disclose truly and fully all facts. The Assessing Officer has no new material evidence to show that certain income earned by the respondents has escaped from the purview of assessment and therefore, the re-assessment is not warranted. The respondents also placed reliance on the decision in the case of Commissioner of Income Tax, Delhi vs. Kelvinator of India Limited reported in (2010) 320 ITR 561 (SC) and contended that the re-assessment proceedings initiated against them after lapse of four years is liable to be set aside. They have also placed reliance on the decision of this Court in the case of Fenner (India) Limited vs. Deputy Commissioner of Income Tax reported in ( 2000) 241 ITR (Madras) 672 wherein it was held that issuing re-assessment notice after expiry of four years on the ground that there is escapement of income is not sufficient. It must be shown that the escapement must be by rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have entertained the writ petitions filed under Article 226 of The Constitution of India. Therefore, the learned Senior Standing Counsel prayed for allowing the writ appeals by setting aside the orders of the learned Judge. 8. Per contra, the learned counsel for the respondents contended that in the absence of any tangible material evidence, the initiation of reassessment proceedings itself is bad. It is not the case of the appellants that the respondents, at the time of original assessment, have withheld any documentary evidence or suppressed material particulars. In the absence of the same, the re-assessment proceedings cannot be initiated against the respondents and it was rightly considered by the learned Judge while allowing the writ petitions filed by them. In support of his contention, the learned counsel for the respondents relied on the decision of the Division Bench of this Court rendered on 18.10.2012 in Tax Case (Appeal) Nos. 1348 and 1349 of 2007 in the case of Commissioner of Income Tax, Chennai vs. M/s. Arun Excello Foundations Private Limited wherein it was held that when the project undertaken by the assessee fulfils the criteria for being approved as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income Tax, Circle 4 1 reported in (2016) 74 Taxmann.com 172 (Gujarat) it was held that re-assessment proceedings are not warranted if the assessee did not suppress any material particulars at the time of assessment or the assessing officer had not collected any new materials to show that there was escapement of assessment. In Para Nos.10 and 11 of the decision, it was held as follows:- 10. Thus, the entire claim of deduction came up for consideration at the hands of the Assessing Officer in the original assessment. The claim was minutely examined and only thereafter accepted. It would therefore not permissible to the Assessing Officer to disturb such claim in exercise of powers under Section 147 of the Act by issuing the notice beyond the period of four years and beyond the period of relevant assessment year. Here again, the Assessing Officer had not recorded, in what manner, the assessee failed in its duty to disclose truly and fully all material facts. In fact, the thirst of the contention of the Assessing Officer appears to be that the assessee had not developed housing projects, but was acting as a contractor. In this respect, the Assessing Officer has place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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