TMI Blog2012 (1) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening the assessment already closed. Further, there is no allegation that the assessee had concealed any material particularly – Decided in favor of assessee. - Special Civil Application No. 16871 of 2011 - - - Dated:- 10-1-2012 - Akil Kureshi and Sonia Gokani, JJ. S.N. Soparpar with Swati Soparkar for the Petitioner Pranav G. Desai for the Respondent JUDGMENT Akil Kureshi, J 1. Rule. Learned advocate Shri PG Desai waives service of rule. Looking to the nature of the controversy involved, this petition is taken for final hearing immediately. 2. Petitioner is a limited company assessed to tax regularly. The petitioner challenged the notice dated 18.3.2011 issued by the Assessing Officer seeking to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.11. At that stage, the petitioner has approached this Court filing the present petition challenging the notice for reopening. 3. On 28.11.11, while issuing notice, we had recorded thus: "1. Counsel for the petitioner submitted that the assessment previously framed under scrutiny has sought to be reopened beyond a period of 4 years from the end of the relevant assessment year. He submitted that the reasons recorded does not allege that income chargeable to tax has escaped assessment due to failure on the part of the assessee to disclose fully and truly all material facts. Counsel further pointed out that the Assessing Officer has found a belief that income has escaped assessment because the project had commercial construction in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue was not able to dispute that the requirement of commercial establishment not exceeding 5% of the total construction or 2000 sq. ft. whichever is less was introduced in the assessment year 2005-06, it is submitted that housing project developed by the petitioner contained commercial establishments and was therefore not eligible for deduction under section 80IB(1) of the Act. 6. Having heard the learned counsel for the parties, we have no hesitation in holding that the notice for reopening is wholly invalid. The only reason for which assessment previously framed was sought to be reopened beyond the period of four years was that the housing project developed by the petitioner occupied commercial establishment exceeding 5% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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