TMI Blog2011 (11) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment to section 80IA(10) of the Act, the assessee was not entitled to claim any deduction - Decided in favor of the assessee - Special Civil Application No. 15351 of 2011 - - - Dated:- 28-11-2011 - Akil Kureshi, Sonia Gokani, JJ. Saaurabh Soparkar, Sr. Adv., with Swati Soparkar for the Appellant Mauna M. Bhatt for the Respondent JUDGEMENT Akil Kureshi: Rule. Learned advocate Mrs.Bhatt waives service of rule on behalf of the respondent. 2. Petitioner has challenged notice dated 15.3.2011 as at Annexure A to the petition by which the Assessing Officer proposed to reopen the assessment for the assessment year 2004-05 in following factual background. 3. The petitioner is a private limited company. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IA to the tune of Rs.44,88,708/- in respect of two projects viz GWSSB (Modhuka) Project and SADA - Gwalior Project. It has been noticed that the assessee has worked as a contractor and not as a developer. Further, infrastructure facilities were also not owned by the assessee. In view of the latest amendment made. In view of the explanation to section 80IA made by the Finance Act, 2009; retrospectively made in the section 80IA, assessee's claim for deduction is disallowable. As such income to that extent has escaped assessment within the meaning of section 147 of the Act. The case is therefore reopened u/s.147 of the Act. A notice u/s.148 is issued to the assessee." 5. The petitioner raised objections to such reopening under commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible. 6.2 Counsel for the petitioner relied on a decision of Division Bench of this Court in the case of Aayojan Developers v. ITO, (2011) 335 ITR 234 (Guj.) wherein under similar circumstances, reopening notice was quashed. 7. On the other hand, learned counsel for the Revenue submitted that the assessee was acting only as a contractor and not as a developer and by virtue of the amendment to section 80IA(10) of the Act, the assessee was not entitled to claim any deduction. He drew our attention to the explanation introduced in the statute by Finance Act, 2009 with retrospective effect from 1.4.2000. 11. Having thus heard the learned counsel for the parties and having perused the record, we may recall that the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition, we are also prepared to accept the stand of the counsel for the Revenue that explanation in any case is only in the nature of clarification or a declaration. Nevertheless, to give the Assessing Officer jurisdiction to reopen the assessment previously framed after scrutiny beyond four years, necessary requirement that income chargeable to tax had escaped assessment due to reason of the assessee failing to disclose truly and fully all material facts is required to be fulfilled. In the present case, we do not find any such material or even suggestion by the Assessing Officer. It was further noticed that under similar circumstances, this Court in the case of Aayojan Developers (supra) had quashed the notice for reassessment. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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