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TMI Blog2022 (5) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement in particular to show that no expenditure has been shared by the developer. We are of the opinion that the A.O. has ventured on a wrong assumption of facts though the agreement was available on hand with the A.O. in the original assessment proceedings. The AO has assumed that when the revenue is being shared, the cost/expenditure shall also be shared between the assessee and developer. Further there is no tangible material was brought to our knowledge by the Ld.DR to come to a conclusion that there is an income escaping the assessment. Thus reopening on the wrong assumption of facts by the assessing officer cannot be sustained. Accordingly, we find the reassessment is bad in law and quash the assessment order passed u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - in spite of the fact that the AO never disputed the genuiness of the expenses comprised in the whole WIP of Rs. 4,60,59,347/-. 4. The appellant craves leave to add to, amend, `alter or delete the above grounds of appeal. 3. The brief facts of the case are that, the assessee is a partnership firm and is engaged in the business of real-estate development. The assessee has filed the return of income for the A.Y 2010-11 on 30.09.2010 with a total income of Rs.30,16,54,952/- and the assessment was completed U/sec 143(3) of the Act dated 05.11.2012 with taxable income of Rs. 30,16,54,954/-. Subsequently, the assessing officer (A.O.) has reason to believe that, there is income escaping the assessment as per the reasons recorded at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason to believe that the income to the extent as mentioned above, has escaped assessment within the meaning of section 147 of the I. T Act, 1961, on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for the year under consideration. 4. The assessee has filed the objections for reopening of assessment and the A.O has disposed off the same by office letter dated 14.07.2016. Subsequently, notice u/s 143(2) and 142(1) of the Act are issued. In response to the notice, the Ld.AR of the assessee appeared from time to time and submitted the details. The A.O. found that the assessee is a builder and the owner of land situated at Village Poisar, Taluka Borivili, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment was reopened on the wrong assumption of facts and relying on the same set of material which was available with the A.O. in the original assessment proceedings and is a mere change of opinion. The Ld. AR restricted his submissions to the extent of validity of reassessment proceedings and substantiated the arguments/ submissions with the paper book and judicial decisions and prayed for allowing the appeal. Contra, the Ld. DR supported the order of the CIT(A) on the validity of re-assessment. 7. We heard the rival submissions and perused the material available on record. The Ld.AR made submissions on the validity of reassessment proceedings that the assessment was reopened on the same set of facts and material and on the wrong assump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure has to be claimed in ratio of 50% each. The Ld. AR refer to page 49 of paper book were the allocation of property for residential, sanctioned, and construction of retail park and parking lot is being developed was discussed. Further at page 52 clause -4 is read as under: The owners are hereby declare and confirm that the title to the said land is clear and marketable and is free from all encumbrances, claims, charges and demands of the any nature whatsoever and the owners have not received any injection or restraining order from any court, authority of Tribunal in regard to the development/disposal of the said land or any part therefore. 9. Similarly in the agreement at page 51, there is a discussion on the developers requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and revenue are supported with the evidences and in most of the cases it is revenue sharing inter se between the assessee and developer and there is no cost/ expenditure sharing by the developer. We find that the Ld.AR submissions are realistic and has referred to the clauses in the agreement in particular to show that no expenditure has been shared by the developer. We are of the opinion that the A.O. has ventured on a wrong assumption of facts though the agreement was available on hand with the A.O. in the original assessment proceedings. The AO has assumed that when the revenue is being shared, the cost/expenditure shall also be shared between the assessee and developer. Further there is no tangible material was brought to our knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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