9911796707
TMI Blog2012 (1) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Companies Act. It is regularly assessed to tax under the Income Tax Act, 1961. For the assessment year 2005-06, the assessee filed its return of income declaring total income of Rs.2.04 crores( rounded off). In the return filed, the assessee had claimed deduction of Rs.2.22 crores under Section 80IA of the Act and also of Rs.3.82 crores under Section 80IB of the Act. The petitioner, however, subsequently filed a revised return and revised its total income to Rs.2.87 crores claiming deduction of Rs.2.11 crores under Section 80IA of the Act and Rs.3.10 crores under Section 80IB of the Act. 4. Such return of the income filed by the assessee was taken in scrutiny by the Assessing Officer. It is the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the central and State Government) and executed by the undertaking for enterprise referred to in subsection." As per agreement vide No.CEQ/SR/MDU/25/2003-04 dated 27.02.2004, clause 26 of page No.38 the assessee is not the owner of the plant, it is just carrying out the work as per the contract awarded by TWAD. In view of the substituted Explanation to section 80IA, the condition laid down in Sec.80IA(4)(a) of the Act, are not fulfilled by the assessee. Therefore, the entire deduction claimed u/s. 80IA is not allowable." 7. The petitioner raised objection to such proposal of the Assessing Officer to reopen the assessment previously framed after scrutiny. The Assessing Officer, however vide his order dated 14.12.2011 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... works contract. Counsel submitted that vires of such statutory provision is called in question and petitions in this regard are pending before this Court. 10. Counsel further submitted that the fact that the petitioner executed the works as a contractor and not as a developer was not disclosed in the original return. 11. Having thus heard learned counsel for the parties and having perused the documents on record, it clearly emerges that the assessment previously framed after scrutiny is sought to be reopened beyond the period of 4 years from the end of relevant assessment year. In the reasons recorded, the Assessing Officer has not suggested that such income escaped assessment for the failure on the part of the assessee to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of 4 years without any failure on the part of the assessee to disclose truly and fully all material facts. 13. Similar view was taken by this Court in the case of Sadbhav Engineering Ltd. vs. Deputy Commissioner of Income-Tax reported in [2011] 333 ITR 483(Guj). 14. The fact that vires of such Explanation is questioned by some of the assessees and such challenge is pending, should not detain us from disposing of the present petition. We have proceeded on the basis that such statutory amendment is valid. Despite such presumption, we are unable to uphold the notice for reopening for the reasons already recorded. 15. The suggestion that the assessee failed to disclose the nature of works executed and that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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