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Hubtown Limited Versus Deputy Commissioner of Income tax Central Circle – 5 (1) & Another

2016 (9) TMI 334 - BOMBAY HIGH COURT

Reopening of assessment - benefit of Section 80IB - Held that:- As the reasons in support do not satisfy the requirement of the proviso to Section 147 of the Act, the impugned notice is unsustainable. Therefore at this stage, we are not considering the second submission on the part of the Petitioner that this is a case of change of opinion and therefore without jurisdiction. - As Respondent, states that on merits, the Petitioner was not entitled to the benefit of Section 80IB of the Act. Thi .....

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been rendered in the context of assessment being reopened within a period of four years from the end of the relevant assessment years. In such cases of reopening of assessment in less than four years, the jurisdiction is not dependent upon failure to disclose fully and truly all material facts necessary for assessment as in this case, where the reopening is for a period beyond a period of four years from the end of the relevant assessment year. - Thus we find absence of any failure to disclo .....

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the Assessing Officer under Section 148 of the Incometax Act, 1961 ( the Act ). The impugned notice seeks to reopen an assessment for Assessment Year 2008-09. 3. The reasons recorded in support of the impugned notice, which have been upheld in the order disposing of the objections of the Petitioner, are as under : (i) The Petitioner is not entitled to the benefit of Section 80IB(10) of the Act, as the notification dated 3 August 2010 issued by the Central Board of Direct Taxes (CBDT) read with .....

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were signed by persons other than the directors / partners / proprietors of the entity giving the loan confirmations. 4. This clearly is a case of seeking to reopen an assessment beyond the period of four years from the end of the relevant assessment year. The condition precedent to assume jurisdiction in such case is the failure of the assessee to disclose fully and truly all material facts necessary for assessment. (i) The benefit of Section 80IB of the Act was denied in regular assessment pro .....

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e Act to the Petitioner. The reasons in support of the impugned notice do not allege that there was any failure on the part of the Petitioner to disclose the notification or any other material fact while claiming the benefit of Section 80IB of the Act. Therefore, so far as this issue is concerned, the Assessing Officer has not satisfied the jurisdictional requirement by showing that there was failure to disclose fully and truly material facts on the part of the assessee necessary for assessment. .....

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any material facts in the present assessment year has been brought to our notice. Consequently, the reopening notice, to the extent it relies on this ground, is prima facie not sustainable. (iii) So far as the loan confirmation being signed by persons other than directors / partners / proprietors of the entity issuing the same is concerned, it is not the case of the Assessing Officer that the same was not produced before him during the assessment proceedings. Thus, this is also a case where the .....

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