TMI Blog2011 (7) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings for assessment year 2005-06 the appellant submitted to the Learned Assessing Officer a note in support of its claim of deduction u/s.80-IB(10) and filed necessary details in support of the claim of deduction. It was pointed out that the appellant has constructed by way of amenities to the residents of the appellant s project certain shops also. Such shops have been constructed in accordance with the building plan approved by Mira Bhayandar Municipal Parishad as a housing project only. In other words, the appellant s project is predominantly a residential housing project which has remained so in spite of construction of a few shops in the residential building premises by way of amenities to the residents of the buildings. However, in the impugned assessment order learned Assessing Officer has referred to the fact that the appellant has constructed shops with the aggregate built-up area of 3382 sq.ft. in the buildings of Yadhishtra, Bhim and Krishna with approval from Mira Bhayandar Municipal Parishad. According to him the appellant thus violated the condition laid down as per clause (d) of sub-section 10 of section 80-IB that the aggregate area in the housing project sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the Assessing Officer. It is further stated that for reopening the assessment, Assessing Officer should have material in his possession which should have escaped assessment. The appellant has relied on various case laws and argued that issue of notice u/s.148 is bad-in-law and the assessment made may be quashed. The Assessing Officer has submitted in his remand report that reopening was never challenged by the appellant before the Assessing Officer. This additional ground has been taken up in appeal. He has further stated that the case was reopened on 11.06.2007 because the appellant had wrongly claimed deduction u/s.80IB of the I.T. Act. According to the Assessing Officer reopening was not questioned before him. Therefore, contention taken now cannot be accepted. Further he has submitted that reopening was done on a valid ground because the appellant did not quality for deduction u/s.80IB(10) of the I.T. Act. As such this ground should be rejected. 5. The Ld. CIT(A) dismissed the ground holding at para 4 of his order that reopening of the assessment has been rightly done by the AO. On merits the assessee challenged the disallowance u/s. 80IB(10) in both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of income was ₹ 12,45,338/-. The assessee claimed deduction u/s.80IB(10) of I.T.Act of ₹ 8,93,018/-. The case was selected for scrutiny and order u/s.143(3) of I.T.Act was passed on 29/12/2008. During the assessment proceedings the assessee or its representative never requested for any enhancement for claim of deduction u/s.80IB(10) of I.T.Act from ₹ 8,93,018/- to ₹ 12,45,338/-. Neither any revised return was filed by the assessee. As per section 139(5) of I.T.Act, If any person, having furnished a return under section (1) or in pursuance of a notice issued under section (1) of Section 142, discovers any omission or any wrong statement herein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier . In this case, the assessee has not filed any revised return before the expiry of one year from end of the relevant assessment year or before the completion of assessment. Therefore, the claim of the assessee for enhanced deduction u/s.80IB(10) of the I.T.Act for ₹ 12,45,338/- for A.Y. 2006-07 may not be accepted. In addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impinge on the power of the Income-tax Appellate Tribunal under section 254 of the I.T.Act, 1961. There shall be no order as to costs. It is very clear from the aforesaid judgement of the Hon ble SC that Assessing Officer cannot increase the claim of deduction of the appellant except if the same is made by filing the revised return in time. Since no revised return was filed in the instant case and time for filing the revised return has already expired, the claim cannot be entertained. Not only this but the appellant has made it a habit of filing additional ground in every hearing and additional ground has been filed after the remand report today only. So relying on the remand report submitted by the Assessing Officer and JCIT and the decision of SC, the action of the Assessing Officer is confirmed. Ground of appeal is dismissed. 8. With respect to reopening for the assessment year 2005-06, we are of the opinion that the entire relevant facts are available on record at the time of processing the return u/s. 143(1) and all the facts were made available to the AO. For the reopening of the assessment AO has power to reopen an assessment, provided there is tangible material t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. (iii) The observations in the case of Gurjargravures P. Ltd. [1978] 111 ITR 1 (SC) do not rule out a case for raising an additional ground before the Appellate Assistant Commissioner if the ground so raised could not have been raised at the stage when the return was filed or when the assessment order was made or if the ground became available on account of change of circumstances or law. There may be several factors justifying the raising of such a new plea in an appeal, and each case has to be considered on its own facts. If the Appellate Assistant Commissioner is satisfied, he would be acting within his jurisdiction in considering the question so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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