TMI Blog2013 (8) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for his assessment - Following decision of Sadbhav Engineering Ltd. Versus Deputy Commissioner of Income-tax [2010 (7) TMI 521 - Gujarat High Court] and Aayojan Developers Versus Income-tax Officer [2011 (2) TMI 738 - Gujarat High Court] - Decided against Revenue. - ITA No. 2765/Ahd/2012 - - - Dated:- 19-7-2013 - Sri D. K. Tyagi And Shri A. K. Garodia,JJ. For the Petitioner : Sri R. K. Vohra, D.R. For the Respondent : None ORDER Per : D. K. Tyagi, Judicial Member:- This is the revenue's appeal against the order of Ld. CIT(A), Gandhinagar dated 06-09-2012. 2. At the time of hearing none appeared on behalf of the assessee despite the fact that notice for today's hearing was served upon him through D.R. So, we proceeded to decide this appeal after hearing Ld. D.R. 3. Only effective ground taken by the revenue reads as under:- "1. The Ld. CIT(A) has erred in law and on facts in holding the reassessment proceedings u/s 147 of the Act as invalid." 4. Brief facts of the case are that assessee filed return of income for assessment year under appeal declaring the total income at nil after claiming deduction at Rs. 44,82,950/- u/s 80IB(10) of the Act. Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was also clarified that the reasons supplied for reopening the assessment are wholly irrelevant to appellant case, along with some relevant judicial pronouncement. With the above set of the facts, the appellant would like to submit as under: Grounds of Appeal no.l "That, the Id. A.O. grossly erred in law by invoking the provision of sec.147 of the Income Tax Act; in view of the reasons supplied for reopening have been irrelevant, the reassessment proceedings initiated is null and void ab initio." At the outset, I wish to draw your honour attentio toward the provisions of section 80IB(10) of the I. Tax Act, which clearly stipulate that conditions mentioned in it should be satisfied; which accepted by the ld. AO in scrutiny assessment. In original assessment we submitted all the evidences in regard to commencement of housing project onward Aug.2002, the size of plot was 10734 sq.yards; which is more than 1 acre and housing project completed prior to 2006, hence the claim of deduction u/s 801B(10) granted by the ld. A.O. Then after, the Id, A.O. had invoked the provision of sec.147 of the act and initiated reassessment proceeding. We sought the reasons recorded for reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted a copy of land purchase deed copy of 7/12 form and bank statement in original assessment proceedings wide our submission dt.22-10-2007. The ld. A.O. had accordingly granted the deduction u/s 80IB(10) of the act, in order u/s 143(3). Thus the reasons recorded have been in perversity in toto. Considering the crystal clear facts stated above, we rely on following case laws. 1. Tulsi Developers Vs. DCIT - (2012) 246 CTR (Guj) 106. 2. H. K. Bulldcon ltd. Vs. ITO - (2011) 339 ITR 535 / (2010) 40 DTR (Guj) 277. 3. Ganesh hous. Corpo, Ltd. Vs. DCIT (2012) 246 CTR (Guj) 465. 4. Monitor India (p) ltd. Vs. UOI (2012) 252 CTR (Bom) 7S. B. there has been Amendment in act retrospectively: - The ld. A.O. has pointed out wide para -5 as under- "Further to clarify these issues it is specifically mentioned in the explanation of the sec. 80IB of the Act that: Explanation - for the removal of doubts. It Is hereby declared that nothing contained in this sub section shall apply to any undertaking which executes the housing projects as a works contract awarded by any person (including the central state Government)". From the above, insertion of above explanation in said provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is against validity of reopening and the AO allegedly not disposing off the objections of the appellant on the reopening. As far as the part of ground against the AO allegedly not disposing off the objections of the appellant on the reopening is concerned; the appellant has not brought on record any petition or letter which it has filed before the AO objecting to the reopening. In these circumstances, the AO was not obliged to pass an order on the issue of reopening separately. This part of the ground is therefore, dismissed. As discussed in brief earlier, the original assessment order was passed u/s 143(3) wherein the appellant's claim u/s 80IB was allowed. There is no doubt that the reopening is beyond 4 years and therefore, the proviso to section 147 is applicable. In the submissions, the appellant has mainly raised the following contentions: a) The reopening is not valid as the reasons recorded that neither the development permission was in favour of the assessee nor the land owned by the firm was contrary to the facts. b) There was no failure on the part of the appellant to disclose full and true facts and as the reopening is beyond 4 years, it is not valid. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal High Court in the following cases: Sadbhav Engineering 333 ITR 483 Aayojan Developers 335 ITR 234 In the circumstances the very initiation of proceedings under section 147 stood vitiated and as such it could not be sustained. In the light of above, the reassessment proceedings are held invalid and the reassessment order is consequently held to be annulled. The ground of appeal is decided as above. 7. Aggrieved by this order, now the revenue is in appeal before us. 8. At the time of hearing Ld. DR relied on the order of assessing officer. 9. After hearing the Ld. DR and perusing the record, we find that there is no dispute about the fact that the reopening of assessment has been done in this case on the basis of retrospective amendment to Section 80IB(10) of the Act. In the reasons recorded for re-opening of the assessment, there was no mention that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment at the time of original assessment. There is also no dispute about the fact that re-opening has been done after four years from the end of the relevant assessment year. As per first proviso to section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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