TMI Blog2012 (6) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... dent that the petitioner had suppressed certain material facts due to which the original assessment order passed by the respondent is liable to be reassessed – in favour of assessee. - W.P.No.29070 of 2011 - - - Dated:- 27-4-2012 - MR.JUSTICE M.JAICHANDREN, J. For petitioner : Mr.Jehangir D.J.Mistri Senior Advocate for Mr.R.Sivaraman For respondent : Mr.J.Narayanasamy O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 2. This writ petition has been filed praying that this Court may be pleased to issue a Writ of Certiorari to call for and quash the impugned notice, dated 16.3.2011, issued under Section 148 of the Income Tax Act, 1961, (hereinafter referred to as `the Act') and the consequential proceedings, dated 25.11.2011, issued by the respondent, rejecting the objections raised by the petitioner, against the re-opening of the assessment, in respect of the assessment year 2004-2005, under Section 147 of the Act. 3. It has been stated that the petitioner is a domestic private limited company, engaged in the business of construction of residential/commercial complexes. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailed reply, dated 15.11.2011, requesting the respondent to drop the proceedings, as there was no reason to believe that the income liable to tax had escaped assessment. 7. The petitioner company had requested the respondent to decide the preliminary issue relating to the aspect of jurisdiction of the respondent to re-open the concluded assessment, under Section 148 of the Act. However, the respondent, without dealing with the issue relating to the jurisdiction, had passed the impugned order, dated 25.11.2011, holding that the proceedings, under Section 147 of the Act, had been initiated correctly and properly, and had issued a notice, under Section 143(2) of the Act, dated 25.11.2011, fixing the date of hearing as 5.12.2011. In such circumstances, the petitioner has preferred the present writ petition, before this Court, under Article 226 of the Constitution of India. 8. The learned Senior Counsel appearing on behalf of the petitioner had submitted that the notice, dated 16.3.2011, issued by the respondent, under Section 148 of the Act, and the consequential order, dated 25.11.2011, rejecting the objections made by the petitioner company, is arbitrary, illegal and void. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel had further submitted that the respondent would have jurisdiction to re-open the concluded assessment, only on obtaining tangible materials. If all the facts had been stated in the original assessment proceedings, a concluded assessment cannot be re-opened, without fresh facts having been brought to the knowledge of the assessing authority. 14. Further, the power to re-open an assessment is conditional on the formation of a reason to believe that income chargeable to tax had escaped assessment. In the present case, the petitioner had submitted all the relevant materials to the respondent, at the time of scrutiny of assessment, under Section 143(3) of the Act. It had also been submitted that the respondent, without deciding the issue relating to jurisdiction, as a preliminary issue, had rejected the objections raised by the petitioner, without adducing proper reasons for such rejection. 15. The learned counsel appearing on behalf of the petitioner had relied on the decision of the High Court of Gujarat in Aayojan Developers Vs. Income Tax Officer 2011 (335) ITR 234. It has been stated that the facts and circumstances of the said case is very similar to the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a Division Bench of this Court, in Commissioner of Income Tax Vs. Elgi Finance Ltd. (2006) 286 ITR (Mad.) 674). The Division Bench of this Court had held that, in addition to the time limits provided for, under Section 149 of the Act, the law has provided another limitation of four years, under the proviso to Section 147 of the Act. As far as proviso to Section 147 of the Act is concerned, the law prescribes a period of four years to initiate reassessment proceedings, unless the income alleged to have escaped assessment was made out as a result of the failure on the part of the assessee to disclose, fully and truly, all material facts necessary for the assessment. Thus, the Division Bench of this Court had approved the decision of this Court, in Fenner (India) Ltd. Vs. Deputy Commissioner of Income Tax (2000) 241 ITR (Mad.) 672. 18. The learned counsel appearing on behalf of the petitioner had further submitted that there is nothing stated in the notice issued by the respondent, for the re-opening of the assessment, under Section 147 of the Act, in respect of the assesment year 2004-2005, to show that there was a failure on the part of the petitioner to disclose all materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and execution of contract for constructions, the assessee is not eligibility for deduction u/s.80IB(10) on this ground. Therefore, I have reason to believe that income chargeable to tax has escaped assessment for the A.Y.2004-05." 22. As such, it is clear that the basis for the re-opening of the assessment, under Section 147 of the Act, is as per the provisions of the said Act. The petitioner had filed its objections, on 15.11.2011. The objections filed by the petitioner had been rejected by way of a speaking order, dated 25.11.2011. The petitioner had challenged the said order. As the procedures laid down by the Supreme Court, in GKN Driveshafts (India) Ltd. Vs. Income-Tax Officer (2003) 259 ITR 19 had been meticulously followed, it would not be proper for the petitioner to state that the said decision had been violated by the respondent. 23. It has been further stated that the petitioner had not fully and truly disclosed the relevant facts, at the time of the original assessment proceedings and therefore, reassessment proceedings had been initiated, as per the proviso to Section 147 of the Act. As such, the contention of the petitioner that the proceedings initiated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Tribunal had held, in Patel Engineering Vs. DCIT (2005) 94 ITD 411 (Mum), that incentive deduction is available only to a developer of a project, and not to the contractor. The explanation to Section 80IB(10) of the Act was therefore, clarificatory in nature. Therefore, the petitioner cannot be excluded from the re-assessment proceedings, by stating that the reason for re-opening of the assessment is consequent to the introduction of the explanation in the statute. 27. The reliance, by the petitioner, on an order of the Tribunal, in ITA 1058 of 2009, dated 13.8.2009, to state that the reassessment proceedings is not valid, cannot be accepted. The Tribunal had no occasion to consider the issue of eligibility of the deduction under Section 80IB of the Act, from the point of view of the retrospective amendment made to the section, in the year, 2009, with effect from the year, 2001. 28. Further, the issue pending before a Division Bench of this Court, in a Tax Case Appeal, is different from the issue, in respect of which the assessment had been re-opened. In fact, the reason for the re-opening of the assessment is the amendment to Section 80IB(10) of the Act, which say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of full accounts by the assessee, while submitting the returns relating to the original assessment. If a final order is passed by the assessing authority based on the relevant records furnished by the assessee it would be open to such assessee to file an appeal before the appellate authority and thereafter, before the Income Tax Appellate Tribunal, before approaching this Court. When such efficacious alternative remedies are available it would not be open to the petitioner to approach this Court, by way of a Writ petition filed, under Article 226 of the Constitution of India, as held by the Supreme Court, in Raj Kumar Shivhare Vs. Directorate of Enforcement (2010) 4 SCC 772. As such, the writ petition is devoid of merits and therefore, it is liable to be dismissed. 32. The learned counsel appearing on behalf of the respondent had submitted that the question as to whether the petitioner is a developer or a contractor, undertaking works contracts, was not relevant at the time of the passing of the original assessment order. Only thereafter, after the amendment had been introduced, in Section 80IB of the Act, in the year, 2009, with effect from 1.4.2001, the respondent had propo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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