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2019 (12) TMI 381 - HC - Income TaxReopening of assessment - whether they are good reasons, as based on tangible material having live link with formation of the belief? - criteria for deduction under section 80IA - HELD THAT:- There is no dispute that for the relevant assessment year, a return under section 139 was filed by assessee. The notice issued under section 143(2) is pursuant to a notice issued under section 142(1). In such circumstances, scrutiny assessment under section 143(3) was made on the Assessing Officer having required disclosure of further particulars and information, to thereupon allow the exemption. Nothing has been disclosed by Revenue to give credence to the statement in the reasons to believe that in spite of repeatedly asking for copies of bills and vouchers towards construction of the bridges, assessee never produced any evidence, in the face of contents of said two notices issued under sections 142(1) and 143 (2). Court has once again looked at notice dated 24th October/19th November, 2007 issued under section 143(2) and earlier notice dated 9th April, 2007 under section 142(1). The assertion in the affidavit-in-opposition that the AO for the first time came to know that assessee was not in the business of infrastructural facility but in the business of outdoor advertisement, thereby not fulfilling criteria for deduction under section 80IA, is not based on any tangible material that has been placed before Court, either by the reasons or by subsequent disclosure. There is no disclosure in the affidavit-in-opposition. Letter of Executive Engineer, PWD (Roads) Department received on 14th January, 2011 in response to notice dated 27th October, 2010 issued under section 133(6), are correspondence post assessment order dated 14th July, 2008, in scrutiny assessment made under section 143(3). The notice dated 27th October, 2010 issued under clause (6) in section 133, according to the Assessing Officer, drew belated response from Executive Engineer PWD (Roads) Department and not relied upon in the reasons, for being of doubtful genuineness. Absence of reliable answer from, such as appears to be given by a government functionary, being noticee under clause (6) in section 133, can be cause for further enquiry but not tangible material having live link with formation of the belief. The letter obviously does not support contention of Revenue. As such no material has been disclosed by Revenue. All this leads to inevitable conclusion that there has been change of opinion. Writ petition succeeds. Impugned notice is set aside
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