2018 (4) TMI 703 - ITAT MUMBAI

Reopening of assessment - claim of the assessee for deduction u/s. 80IB(10) is not allowable and is liable to be withdrawn - Held that:- The tangible and material incriminating information came in possession of the AO during the course of assessment proceedings conducted by the AO for AY 2009-10 that the assessee did not meet the conditions stipulated for claiming deduction u/s 80IB(10) but still the same were claimed by the assessee for AY 2007-08, which led to reopening of the concluded assessment for the impugned assessment year 2007-08 u/s 147 of the 1961 Act.

There is no estoppel against law and any view which is adopted by the AO in original assessment proceedings which is in contravention of the law is not sustainable will fall within rigors of Section 147/148 as the AO cannot form any opinion which is contrary to the express provisions of law and hence the instant case is covered within rigors of Section 147/148 of the 1961 Act as the view adopted by the AO was perverse and contrary to the provisions of Section 80IB(10), as there could not be two different views on this issue and hence there can be no question of change of opinion by the AO. Any view adopted by the AO which is contrary to the provisions of law will give rise to an occasion for Revenue to reopen the concluded assessment within rigors of Section 147/148 as the income had escaped assessment due to perverse view contrary to law adopted by the AO in original assessment. Hence reopening of the concluded assessment u/s 147 in the instant case before us is considered to be valid as also on merits, the assessee claim for deduction u/s 80IB(10) deserves to be rejected and the appeal of the Revenue stood allowed.

In view of the major error which crept in the orders for AY 2009-10 and AY 2010-11 wherein the learned CIT(A) and tribunal proceeded on the belief that the project was approved by SRA on 04-06-2004 which was a wrong belief instead of correct date of approval of the project by SRA on 07-11-2002 and the said error goes to the root of the matter to decide this controversy because CBDT vide its notification no. 67 dated 31-08-2010 which was later clarified vide notification no. 2 of 2011 had mandated grant of benefit u/s 80IB(10) to slum rehabilitation / redevelopment project which were approved on or after 01-04-2004 but by local authority, and before 31st March 2008, thus no benefit could be allowed to projects approved prior to 01st April 2004, the said error/mistake cannot be allowed to be perpetuated as there is no heroism in perpetuating the mistake is a cardinal principle of jurisprudence.

Assessee is not entitled for deduction u/s 80IB(10) of the 1961 Act w.r.t. its residential project at Parel,Mumbai and the appeal of the Revenue is allowed.