2019 (3) TMI 335 - HC - Income Tax

Reopening of assessment - Original assessment u/s 143(3) - no tangible materials on record - No allegation that the assessee has filed to disclose fully and truly all materials for completion of the assessment - disallowance of benefit u/s 80-IB (10) - Held that - AO considered the entire facts, and verified the documents produced by the assessee, viz., plan approval, permit, completion certification and also the books of accounts, bills for major expenditure, which were checked and retained to the assessee. Thus, based upon the detailed material, evidences and clarifications, AO completed the assessment. Thus, in the absence of any allegation that the assessee has filed to disclose fully and truly all materials for completion of the assessment and also in the absence of no fresh tangible material, reopening of the assessment is held to be bad in law. Disallowance of benefit u/s 80-IB (10) - Applicability of amended provision in respect of allotments made before 19.08.2009. Amended provision Provision applicable from A.Y 2010-11 - HELD THAT - This has been clarified by the Board in the Explanatory Notes to the Provisions of the Finance (No.2) Act, 2009, dated 02.06.2010 that the amended provision shall not apply in respect of allotments made before 19.08.2009. So far as the assessee s case is concerned, all the allotments/sale deeds have been executed on 04.06.2009, and this aspect has not been disputed by the Revenue. In fact, the documents were considered by the Assessing Officer while completing the assessment under Section 143(3) of the Act, vide order dated 13.02.2013. Therefore, the assessment could not have been reopened based upon the amendment, which could not have been applied for the subject assessment year. Hon ble Supreme Court in the case of CIT vs. Sarkar Builders 2015 (5) TMI 555 - SUPREME COURT clause (d) is to be treated as inextricably linked with the approval and construction of the housing project and the assessee cannot be called upon to comply with the said condition either of the assessee or even the Legislature, when the housing project was accorded approval by the local authorities. Therefore, it held that the said amendment cannot be applied to those projects, which were sanctioned and commenced prior to 01.04.2005, and completed by the stipulated date, though such stipulated date is after 01.04.2005. The above decision also strengthens the case of the assessee. Thus we hold that the Tribunal was not right in rejecting the assessee s appeal. - Decided in favour of assessee.

Summary

Issues:
1. Validity of reopening assessment under Section 147 of the Income Tax Act for the assessment year 2010-11 without tangible materials.
2. Applicability of the amended Section 80-IB(10)(e) to the assessment year 2010-11.

Analysis:
1. The first issue revolves around the validity of reopening the assessment under Section 147 of the Income Tax Act for the assessment year 2010-11. The Assessing Officer alleged that the assessee violated the conditions laid down in the amended Section 80-IB(10)(e), leading to the disallowance of the relief granted in the original assessment. However, it was noted that the assessee had fully disclosed all materials during the original assessment under Section 143(3) of the Act. The Court found that there was no fresh tangible material to justify the reopening of the assessment, rendering the reopening invalid in law.

2. The second issue concerns the applicability of the amended Section 80-IB(10)(e) to the assessment year 2010-11. The Tribunal clarified that the amendment was made applicable from 1st April 2010 onwards, as per Circular No.5/2010 and Explanatory Notes to the Provisions of the Finance (No.2) Act, 2009. The Court emphasized that the amended provision would not apply to allotments made before 19.08.2009. As all allotments/sale deeds in the assessee's case were executed on 04.06.2009, the amendment could not be retroactively applied to the subject assessment year. The Court also cited a Supreme Court case and Tribunal decisions to support the interpretation that amendments should not be applied retrospectively to projects approved before specific dates.

In conclusion, the Court held that the Tribunal erred in rejecting the assessee's appeal, as it did not assess the applicability of the amended provision. Therefore, the appeal was allowed, answering the substantial questions of law in favor of the assessee.