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TMI Blog2018 (11) TMI 1925X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the formation of belief is from the material on record only and that no fresh tangible material had come to the knowledge of the A.O. to reopen the assessment. In the case of Orient Craft Ltd [ 2013 (1) TMI 177 - DELHI HIGH COURT] has clearly held that even an assessment done u/s 143(1) of the Act, can be reopened u/s 147 only if the AO had tangible material which has come to his knowledge, subsequent to such an assessment u/s 143(1). We hold that the reopening of the assessment which is completed u/s 143(1) of the Act is not sustainable without there being any tangible material that has come to the knowledge of the A.O. - Decided in favour of assessee. - ITA No. 679/Hyd/2017 - - - Dated:- 2-11-2018 - SMT. P. MADHAVI DEV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises living room, dining area, one bed room and attached toilet, kitchen, a covered portico and a garden while the 1st floor comprises of two bed rooms with attached toilet, study room, stair case and a balcony. He observed that the built up area measurement reported by the assessee did not include the covered portico of the ground floor and the balcony on the 1st floor. According to the A.O., these two also form part of the built up area and if these are added, the area of each villa exceeded 1500 sq. ft and therefore, the assessee is not eligible for deduction u/s 80IB(10) of the Act. He accordingly, disallowed. 4. Aggrieved, assessee preferred an appeal before the CIT(A), who confirmed the order of the A.O. and the assessee is in seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as erred in upholding the decision of the Ld. A.O. in holding that the built up area of each residential unit exceeds 1500 sft and the profits derived from the housing project do not qualify for deduction u/s 80IB(10) of the Act. 6. The CIT ought to have appreciated that there were no walls surrounding the portico area and the same cannot be included for computing the built up area. 7. The CIT ought to have appreciated that the portico and the open to sky terrace cannot be said to be a balcony or a projection so as to include those areas in the computation of the built up area. 8. The CIT ought to have appreciated the fact that balcony and projections have not been defined under the IT Act and therefore the meanings of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the assessment u/s 147 of the Act is not sustainable. 6. Learned Departmental Representative, however, supported the orders of the authorities below. 7. Having regard to the rival contentions and the material on record, we find that the reopening of the assessment is within a period of 4 years from the end of the relevant assessment year and the initial assessment was u/s 143(1) and not u/s 143(3) of the Act. As regards the change of opinion is concerned, we find that the A.O. has perused the assessment record to observe that the built up area of each of the residential units is more than 1500 sq. ft and that the assessee is not eligible for deduction u/s 80IB(10) of the Act. Therefore, it is clear that the formation of belief i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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