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2015 (12) TMI 198 - GUJARAT HIGH COURTReopening of assessment - disallowance of a portion of the claim under section 80IB(10) - Held that:- While considering the claim for deduction under section 80IB(10) of the Act, the Assessing Officer has called for details of the land in question which was brought as capital of Shri Babubhai Desai, the amount of land brought as capital and the value considered, the detailed working of profit/gain offered for income-tax when land was brought as capital asset, as well as copy of the return of income with computation of income of Shri Babubhai Desai for financial years 2006-07 and 2007-08. In response thereto, the petitioner has submitted copies of the revenue record pertaining to the lands in question, the purchase deed of the land, copy of the capital account of Shri Babubhai Desai for financial years 2006-07 and 2007-08, supplementary deed and copy of the capital account of Shri Babubhai Desai and his income tax return for the above years which clearly showed that capital gain on such lands amounting to ₹ 1,08,60,381/- was offered for tax in assessment year 2007-08. Thus, the Assessing Officer, after calling for the above material, did not deem it fit to assess capital gain under section 45(2) of the Act nor has the aspect of capital gains been discussed in the assessment order. Therefore, it is evident that while examining the claim under section 80IB(10) of the Act, the Assessing Officer has also called for material relating to the lands in question and as to whether profit/gain was offered for income tax when the land was brought as capital, but has not assessed capital gain under section 45(2) of the Act in relation to conversion of the capital assets to stock in trade, under the circumstances, the reopening of assessment for the purpose of examining such issue is clearly based on a change of opinion. - Decided in favour of assessee.
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