TMI Blog2016 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 15719 of 2010 - - - Dated:- 9-6-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE PETITIONER : MR RK PATEL, ADVOCATE WITH MR. DARSHAN R. PATEL, ADVOCATE FOR THE RESPONDENT : MR SUDHIR M MEHTA, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of the present petition, the petitioner has challenged the notice dated 24.3.2010 issued by the respondents at Annexure-D to the petition whereby the respondents seek to reopen the assessment for assessment year 2006-07 for the reasons which are recorded as under: During the course of assessment proceedings for A.Y. 2007-08, it was noted that profits shown by the assessee in compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,28,61,413/- 2 2006-07 24,07,388/- 34,16,587/- Total 1,14,69,770/- 1,62,78,000/- In A.Y. 2007-08, while fnalizing the assessment, an addition of ₹ 10,09,199/- has been made, as unaccounted investment under section 69B made by the assessee in the project `Jalaram Complex and deduction under section 80IB(10) has not been granted on such addition. The DVO has also proposed to upward adjustment in the cost of construction in A.Y. 2006-07. Therefore, on the basis of this fresh information, it is clear that the assessee has claimed incorrect /excess deduction under section 80IB wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein. The entire basis for reopening the assessment is the report of the DVO and the difference of cost as computed by him, which according to the Assessing Officer is the extent of income which has escaped assessment. 9. This court in the case of Vinayak Builders v. BD Garsar (or) Successor (supra) had in the facts of that case observed that the sole ground for reopening the assessment was that the Valuation Officer had determined the cost of construction at a higher rate than that shown by the assessee in its books of account. The reasons recorded did not reflect that the Assessing Officer had applied his mind to the facts of the case to ascertain as to whether in fact the assessee had expended more amount towards construction as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax v. Dhariya Construction Co. (supra), the opinion of the DVO per se is not an information for the purposes of reopening assessment under section 147 of the Act. The Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon. 11. In the light of the above discussion, this court is of the view that on the reasons recorded by the Assessing Officer, he could not have formed the belief that the income chargeable to tax has escaped assessment. Under the circumstances, the very assumption of jurisdiction under section 147 of the Act on the part of the Assessing Officer by issuing the impugned notice under section 148 of the Act is without authority of law, and hence, the impugned notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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