TMI Blog2016 (10) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, it would be extremely doubtful whether the Assessing Officer can later on examine another facet of the same claim, contending that such aspect was not scrutinized during the original assessment. It is not the case of the Assessing Officer that in response to the queries raised during such assessment, the assessee did not make true or proper disclosures. The reasons recorded did not rely on any material outside the record. Quite apart, the very issue on the basis of which, reopening is resorted to is squarely covered by the judgment of this Court in case of Radhe Developers (2011 (12) TMI 248 - GUJARAT HIGH COURT ) which came to be confirmed by the Supreme Court concerning this assessee and its claim of deduction under section 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ueries including the following. 7. With reference to deduction u/s.80 IB(10) please give the following details: (1) Copy of approval of plan of the housing project approved by the local authorities stating date of approval, date of commencement and completion of the housing project. (2) Please also give the evidence of plot of land and builtup area of the residential units. If commercial units are included in the project, please state the builtup area of the commercial units also. In response to such queries, the petitioner filed detailed reply under letter dated 07.12.2007 giving details as called for. In particular, the petitioner produced the following information. i) Approval for development and construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IB(10) of the Income-tax Act, 1961. In this case assessment for A.Y. 2006-2007 has been finalized u/s. 143(3) of the I.T. Act, after disallowing assessee's claim of deduction u/s. 80IB( 10) of the I. T. Act, 1961 on the ground that the assessee is not the constructive owner of the land and the permission from the AUDA is also not obtained by the assessee. On a perusal of the development agreement entered into with the land owners, it is abundantly clear that the land owners have not given any right or dominion of the land to the assessee. It is, for the reason elaborately discussed in the order of assessment, also held that the assessee is merely a contractor and not a developer and hence deduction u/s. 80IB(10) is not allowable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under section 80IB(10) of the Act has been sufficiently made clear by this Court in case of Commissioner of Income-tax v. Radhe Developers, reported in [2012] 341 ITR 403 (Guj). In case of this very assessee, the Tribunal had in the subsequent assessment year held that the Revenue was not justified in rejecting the claim of deduction. Such judgment of the Tribunal is confirmed by the High Court while rejecting the Revenue's Tax Appeal No.1372 of 2011. Counsel also made a grievance about the Assessing Officer proceeding with the assessment without disposing of the petitioner's objections. 8. On the other hand, learned counsel Shri Nitin Mehta for the department opposed the petition contending that in the original s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer was hinting at the assessee not being a developer of a housing project and therefore, income not being eligible for deduction under section 80IB(10) of the Act. 12. For multiple reasons on such grounds, the reopening would not be permissible. Firstly, as noted, in the original scrutiny assessment, deduction under section 80IB(10) of the Act was the main claim of the assessee which came up for scrutiny. The Assessing Officer raised several queries, asking the assessee to justify such claim, to which, the assessee gave detailed reply, producing evidence and materials on record. In that view of the matter, it would be extremely doubtful whether the Assessing Officer can later on examine another facet of the same claim, contending that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
