TMI Blog2011 (12) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ures and the assessment was finalized after scrutiny assessment, whereby he was granted deduction under Section 80IB(10) of the Income Tax Act, 1961. ( to be hereinafter referred to as the Act ) 3. It is the say of the petitioner that the Assessing Officer seeks to reopen the assessment by issuance of impugned notice. Since this exercise is undertaken beyond the period of 4 years at the end of the relevant assessment year, after the scrutiny assessment and in absence of any indication that the petitioner had not disclosed fully and truly all material facts, this notice in not tenable. 4. It is further the say of the petitioner that the reasons were furnished by the respondent No.1 on 19.10.2011 stating therein that the assessee was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for those, who were executing the works contract of housing project. 6. After considering those objections, the same were rejected. Disposing of the same, it was noted by the Assessing Officer that mere production of evidence before the Income Tax Officer was not sufficient. Relying on the decision of Apex Court in the case of Indo-Aden Salt Mfg. Trading Co.(P) Ltd.vs. CIT reported in 159 ITR 624(SC), it has been stated that if there is an omission or failure to make a true and full disclosure and if some material for the assessment lay embedded in the evidence which the assessee could have uncovered but did not, then it is the duty of the assessee to bring it to the notice of the assessing authority. The assessee knows all the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed by the assessee in its original return of income. Therefore, the assessee had not disclosed fully and truly all material facts necessary for its assessment before the Assessing Officer warranting any remedial action under Section 148 of the Act. It is also the say of the respondent that as per amendment under Section 80IB of the Finance Act, the works contract to execute the work awarded by any person, includes land owners, which is, in the instant case, M/s.Madhav Cooperative Housing Society, a legal entity and assessee being merely a contractor for the purpose of construction of the project since was not entitled to deduction under Section 80IB(10) and for his not having disclosed the status of being a works contractor, the deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- had been permitted. Thus it can be seen that after raising the specific query and on getting reply and after duly considering the same, the assessment order had been passed. This fact also is not being disputed by the respondent. In its reply the only ground which has been put-forth for reopening of the assessment beyond 4 years from the assessment year under consideration is the ground of amendment which has been brought into effect by the Finance Act, 2009. 11. Similar issue also had come up before this Court where the Division Bench of this Court in the case of Aayogan Developers vs. Income-Tax Officer reported in [2011]335 ITR 234(Guj) examined the issue and had held thus:- 44. Examining the facts of the present case in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings under section 147 of the Act which have been initiated by issuance of the impugned notice under section 148 of the Act, therefore, cannot be sustained. 45. On behalf of the petitioner, reliance has been placed upon the decision of this court in the case of Sadbhave Engineering Co.Ltd. v. Deputy CIT [2011] 333 ITR 483(Guj) rendered on July 20, 2010, in Special Civil Application No.5846 of 2010 and other allied matters. On behalf of the Revenue, nothing has been pointed out to indicate as to why the said decision would not be applicable to the facts of the present case. It is also not the case of the Revenue that the said decision has been carried further and that the same has been stayed or set aside by the higher forum. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project and, therefore, it would not be feasible for any person to contemplate any such retrospective amendment and disclose in the return, which was otherwise not required. As can be seen from the assessment order as well as from the record that has been placed before the Court that the petitioner had disclosed all the material facts which were necessary for the purpose of assessment and as the notice under challenge is issued on expiry of the period of 4 years from the end of the relevant year of assessment under consideration, there is nothing to indicate nor anything to establish that the assessee has not disclosed fully and truly all material facts. The very edifice to the impugned notice is not to be held sustainable. 14. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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