TMI Blog2011 (11) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, for the Assessment Year 200405, filed return of income with the relevant statement of income, audited accounts, auditor's report in Form No. 3CB, 3CD, etc. Scrutiny assessment under Section 143 (3) of the Act was framed granting deduction under Section 80IB of the Act. 2.2 The respondentAssessing Officer has sought to reopen the assessment by issuance of the Notice under Section 148 read with Section 147 of the Act. The reason for reopening indicates that this is being reopened in view of the explanation given below subsection (10) of Section 80IB which has been inserted by the Finance Act No.2 of 2009; applicable with retrospective effect from 1st April 2001, as such the petitioner is not entitled to protection under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for assessment, therefore, assessing officer had reason to believe that the income chargeable to tax has escaped assessment and this claim for deduction of ₹ 22,06,353/= under Section 80IB (10) was an incorrect claim. 2.4 Objections to the said notice of reassessment were furnished on 28th September 2011 emphasizing therein that notice of reassessment is a mere change of opinion of the Assessing Officer, as in the scrutiny assessment At the time of processing original return, this issue has been pertinently gone into by the Assessing Officer. Not only that but, all the necessary documents pursuant to the queries were furnished justifying the claim of deduction under Section 80IB (10) of the Act and after examining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer. 4. Notice was issued to the respondents, pursuant to which affidavitinreply has been filed by the respondents contending therein that the assesseecompany, being merely a contractor and not a developer, was not disclosed by him in his original return of income, and therefore, he had not disclosed fully and truly all the material facts necessary for his assessment, and therefore, the provision of Section 147 of the Act would be made applicable. It is also contended that the petition challenging the constitutional validity of insertion of Section 80IB (10) is pending before this Court and as there is sufficient material to indicate that all material facts were not truly and full disclosed, the income chargeable to tax ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessor in office on 6/4/2006. A photo copy of the said notice is enclosed for ready reference and placing on record. (ii) That in compliance to the said notice, the assessee has already filed requisite written submissions dated 12/4/2006 with supporting documents/enclosures in respect of each of the year under consideration, separately. The then assessing officer had duly placed them on record through order sheet entries, in respective folders of the concerned years. (iii) However, at the cost of repetition, the assessee submits herewith copies of his earlier submissions dated 12/4/2006 for the above referred years for kind perusal and placing on record. From the record it may kindly be appreciated that the assessee has du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht into the statute book much later. As rightly pointed out by the petitioner, there is no evidence indicating any reason much less a valid reason for assuming jurisdiction under Section 147 of the Act, except the amendment in the statute in the year 2009, particularly when there is no concealment on the part of the petitioner. 5.5 It is necessary to refer to, at this stage, the judgment of this Court rendered in case of Sadbhav Engineering Limited v. Deputy Commissioner of IncomeTax [333 ITR 483], where the issue of reopening of assessment beyond the period of four years from the end of the relevant assessment year was under consideration. The Division Bench of this Court held that the assessee carried on the business which was in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts, the assessee is a developer or a works contractor is a matter of inference. Hence, the assertion that the petitioner is a developer, without anything more cannot be said to be an incorrect disclosure of facts, as is sought to be contended on behalf of the revenue. In the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration, the assumption of jurisdiction under section 147 of the Act after the expiry of four years from the end of the relevant assessment year is illegal and invalid. The proceedings under section 147 of the Act which have been initiated by issuance of the impugned notice under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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