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2018 (12) TMI 1964 - AT - Income TaxReopening of assessment u/s 147 - Deduction u/s 80IA(4) - application under rule 27 of ITAT Rules vide letter contending the validity of the reopening u/s 147 - HELD THAT:- There was an amendment under the Act by the Finance Act 2009 with retrospective effect from 01.04.2000. AO was of the view that the assessee who is acting as a work contractor is not entitled to the benefit of deduction u/s 80IA(4) - Accordingly, the AO on the basis of such retrospective amendment reopened the case of the assessee under section 147 - The reason for the reopening has already been discussed in the preceding paragraph. It is settled law that reopening of the assessment under section 147 of the Act cannot be done on account of retrospective amendment in view of the judgment of Hon’ble Gujarat High Court in the case of Sadbhav Engineering Ltd. [2014 (6) TMI 296 - GUJARAT HIGH COURT] The principles laid down by the Hon’ble Gujarat High Court as discussed above are squarely applicable to the facts of the present case on hand. Therefore respectfully following the same we are not inclined to uphold the reassessment proceedings under section 147 of the Act. Thus we hold that the order framed under section 147 of the Act is not sustainable in the given facts and circumstances. The assessee succeeds on the technical ground raised by it in the application filed under rule 27 of ITAT rules. Thus we are not inclined to decide the issue on the grounds raised by the Revenue on merit. Hence the ground of appeal of the Revenue is dismissed. Eligible for deduction u/s 80IA(4) - As there is no ambiguity that the issue whether the assessee is acting as developer or works contractor has already been decided by the Tribunal in the own case of the assessee for the assessment year 2007-08 after considering explanation added in subsection 13 to section 80IA(4) of the Act which has already been discussed in the preceding paragraph. Therefore we are of the view that the impugned issue stands decided in favor of the assessee. There was no change in the facts and circumstances in the case of the assessee in the year under consideration. Therefore in our considered view, the principle of consistency will be applied in the case on hand as held by the Hon’ble Supreme Court in the case of Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] We hold that the assessee is very much eligible for deduction u/s 80IA(4) of the Act. Accordingly, we set aside the order of the CIT-A and direct the AO to delete the addition made by him by making the disallowance under section 80IA(4) of the Act. Thus, the ground of appeal of the assessee is allowed.
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