TMI Blog2013 (6) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income Tax Act, 1961. 2. The learned CIT(A) has erred in appreciating the issue of ownership of the land for claiming deduction u/s 80IB (10) of Income Tax Act, 1961. 3. In this case CIT(A) has failed to appreciate that the land on which development had been carried out and building is constructed is in the name of M/s AVC Investments and Trading Pvt. Ltd., and not in the name of assessee firm. Further the approval and also the occupancy certificates issued by local authority is not in the name of assessee so M/s Dukle constructions is not eligible to claim deductions. 4. For this and other grounds that may be urged at the time of hearing, it is prayed that the order of learned CIT(A) be cancelled and that of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs can be initiated only if primary facts were not available at the time of initial assessment or if there was any concealment or in case where the assessment order was passed without application of mind at all. The ld. AR submitted that there is no whisper in the assessment order regarding any discrepancy found in record or any violation of provisions of law or that assessee was unable to substantiate its claim for deduction with appropriate explanations/reasons. Thus, the original assessment order u/s 143 was passed by then AO having completely satisfied himself that the assessee has abided by all the underlying conditions so as to claim the benefit of deduction u/s 80-IB(10) of the Act. The ld. AR further submitted that perusal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat details including ownership of land was on record in the original assessment for A.Y. 2005-06, this issue was also raised in A.Y. 2006-07. The Assessee has made submission on 26.12.2008 including in regards to the ownership. In the assessment order, the issue about ownership is discussed and after discussion, the claim is allowed. The ld. AR submitted that in one order Department accepts the claim after detailed discussion and also virtually simultaneously proceeds to re-open the assessment of earlier year on the same issue. This is clear abuse of provisions of Sec. 147. The ld. AR further submitted that in the present case, re-opening of the assessment is only on account of change of opinion and not on account of new finding of facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was originally completed u/s 143(3) on 28.3.2007 on total income of ₹ 11,95,000/- after allowing deduction u/s 80-IB of the Act for ₹ 85,79,483/-. Subsequently, the case was re-opened u/s 147 after obtaining the prior approval and notice u/s 148 was issued on 10.12.2008 which was duly served on the Assessee on 12.12.2008. We find that the Assessee has not filed new return but Assessee has requested that the original return may be treated as return filed in compliance of Sec. 147 of the Act. We find that the Assessee has furnished all the relevant details to claim the deduction u/s. 80-IB(10) of the Act. We find that in the original assessment order, the AO has discussed the issue while completing the assessment order. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that it is merely change of opinion and when it is merely change of opinion, it cannot be re-opened u/s 147 of the Act. We have also gone through the reasons recorded for issue of notice u/s 148 of the Act wherein the AO did not find any new facts in the notice itself. We find that the re-assessment proceeding will be invalid in the case. The assessment order itself records that the issue was raised and decided in the favour of the assessee. The re-assessment proceeding in this case will be hit by principle of change of opinion. In the re-assessment proceeding is invalid in this case on the ground that in the original assessment proceeding the Assessing Officer has examined claim of deduction under section 80-IB(10) of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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