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2010 (2) TMI 26 - HC - Income TaxReopening of an assessment – claim of benefit u/s 80IB - The challenge in these proceedings under Article 226 of the Constitution of India is to the reopening of assessments for Assessment Years 2003-2004 and 2004-2005 by notices dated 24th March 2009 and 31st March 2009 in purported exercise of powers under Section 148 of the Income Tax Act, 1961. – held that - the reopening of the assessment has taken place within a period of four years from the expiry of the relevant assessment year. However, so far as this case is concerned, it is apparent that the Assessing Officer did not have before him any additional material at all to form a belief that income had escaped assessment. The assessee had admittedly placed on record before the Assessing Officer for A.Y. 2003-2004 the circumstance that the plans have been approved for the building on 12th September 1988. There was no material before the Assessing Officer, that would lead to a formation of belief that the income had escaped assessment. We may also note that in the present case as well the Assessing Officer appears to have relied exclusively on an audit objection, which has already been dealt with while considering the facts of Writ Petition no.269 of 2010. There was hence a total absence of “tangible material”, as explained in the judgment of the Supreme Court in Kelvinator to justify the conclusion that income had escaped assessment. Finally, it would be necessary to note, as we have observed earlier, that mere existence of the land and building since 1988 is not a circumstance which would disentitle the assessee to the benefit of a deduction under Section 80IB of the Act, once other requirements of the provisions are fulfilled – notice u/s 147 quashed
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