TMI Blog2017 (3) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... - ITA No. 1428, 1429 /Hyd/2015 - - - Dated:- 22-3-2017 - SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For Assessee : Shri S. Rama Rao, AR For Revenue : Shri K.J. Rao, DR ORDER Per B. Ramakotaiah, A. M. These two appeals are by assessee against the separate but similar orders of the Commissioner of Income Tax (Appeals)-6, Hyderabad dated 06-11-2015. Assessee is aggrieved on reopening of assessment as well as on merits of disallowance made by the Assessing Officer (AO) u/s. 80IB of the Income Tax Act [Act]. 2. Briefly stated, assessee is a real estate developer and has carried the project at Cherlapally Village in the name of Silver Oak Bungalows. It envisaged development of 76 residential units on a land admeasuring over six acres and assessee has claimed deduction u/s. 80IB(10) on the income of the said project. For the AY. 2006-07, assessee filed its return of income on a total income of ₹ 2,13,281/- after claiming deduction u/s. 80IB(10) on an amount of ₹ 87,60,134/-. The assessment u/s. 143(3) was completed on 31-12-2008. In the said assessment, the ITO deputed his Inspector to verify the site and eligibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s. 80IB. Ld.CIT(A) however, rejected all the contentions and dismissed the appeals. Hence present appeals. Grounds raised are on the above two issues 4. Ld. Counsel mainly objected to the re-assessment proceedings stating that the notices were issued after four years and all the relevant details were furnished at the time of original assessment and in fact the Inspector has physically inspected the premises and gave a finding that assessee satisfies the conditions and further that a notice u/s. 143(2) was not issued but the CIT(A) rejected the contention on the reason that assessee has not filed return of income in response to notice u/s. 148. It was submitted that assessee did file a letter requesting the AO to treat the original return filed as return in response to notice u/s. 148 and accordingly, it is a deemed return. Further, the AO himself has communicated the reasons for reopening, after assessee s filing of the deemed return. Therefore, the argument of CIT(A) that assessee has not filed the return is not correct. Further, it was submitted that AO has got inspection done and allowed the deduction u/s. 80IB(10). Therefore, the successor officer differing from that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment is the basis for audit objection which indicates that assessee has duly furnished all the relevant information so that the reopening after four years will be hit by the proviso to Section 147. In fact, he pointed out that the same AO who recorded the satisfaction for reopening the assessment has indeed replied to the audit not accepting the objection in justifying the claim u/s. 80IB. It was further submitted that case law relied on by the Ld.DR pertains to the facts involving of reopening within four years, whereas law pertaining to reopening after four years from the end of the assessment year is entirely different. Not only that there is no issuance of notice u/s. 143(2) as required by the IT Act. Therefore, on that reason also, the proceedings are invalid. He relied on the case of ACIT anr. Vs. Hotel Blue Moon [321 ITR 362](SC). 7. We have considered the rival contentions and perused the documents placed on record. There is no dispute to the fact that the assessments were reopened after the end of four years from the relevant assessment year. There is also no dispute that the order u/s. 143(3) was passed after duly examining the claim of 80IB(10) as can be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside . 8. Since the facts are similar and law is also being clear, respectfully following the jurisdictional High Court, we are of the opinion that reopening of the assessments after the end of limitation period, without establishing that there is failure on the part of assessee in making full and complete disclosure of relevant information is bad in law. 8.1. Not only that, as can be seen from the assessment orders originally completed by the officer, he has deputed his inspector who has randomly inspected the premises and gave a certificate that assessee satisfies the conditions prescribed. Therefore, any different opinion on the same facts- that assessee does not satisfy the conditions- will come within the purview of change of opinion. An assessment cannot be reopened by mere change of opinion on the same set of facts as held by the Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd., [320 ITR 561] (supra). Not only the above two issues, but as rightly contended by assessee before the CIT(A), there seems to be no issuance of notices u/s. 143(2). Assessee after receipt of notice u/s 148 did inform the AO by way of letter in writing that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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