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2016 (10) TMI 360 - GUJARAT HIGH COURT

2016 (10) TMI 360 - GUJARAT HIGH COURT - TM - Reopening of assessment - claim of deduction under section 80IB(10) disallowed as assessee was not the owner of the land and the permission from AUDA was also not obtained by the assessee - Held that:- 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 Assessi .....

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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 80IB(10) of the Act for the subsequent year. The Tribunal had al .....

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16 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MRS SWATI SOPARKAR, ADVOCATE FOR THE RESPONDENT : MR NITIN K MEHTA, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a notice dated 30.06.2009 issued by the respondent Assessing Officer to reopen the petitioner's assessment for the assessment year 2005-06. 2. Brief facts are as under. 3. The petitioner is a partnership firm and is engaged in the business of development and c .....

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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 cal .....

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that the builtup area of each residential flat was less then 1500 sq. ft. and thus fulfilling the condition of section 80IB. The Report of the Chartered Accountants in Form No. 10CCB was also duly submitted by the assessee during the course of the assessment proceedings. 4. After such scrutiny, the Assessing Officer passed the order of assessment under section 143(3) of the Act on 26.12.2007. A part of the petitioner's claim of deduction under section 80IB(10) of the Act was disallowed and t .....

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0/2005 showing total income of Rs. Nil after claiming deduction of ₹ 86,90,981/- u/ s. 80IB(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 e .....

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has purchased the land for fixed consideration from the land owner and has developed housing project at its own risk, then only the deduction u/s. 80IB(10) is allowable to the assessee. In the case of the assessee, it has not purchased the land from the land owner and also the permission from the AUDA not obtained by the assessee and hence, deduction u/s. 80IB(10) is not allowable to the assessee. In view of the above, I have every reason to believe that due to illegitimate claim of the deducti .....

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ner filed this petition. 7. In background of such facts, counsel for the petitioner submitted that the Assessing Officer having scrutinized the petitioner's claim of deduction under section 80IB(10) of the Act in the original assessment, cannot reopen the assessment on the same ground. He further submitted that the issue of the deduction 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 [201 .....

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a for the department opposed the petition contending that in the original scrutiny assessment, the question whether the assessee had acted as a contractor or was a developer, did not come up for consideration. Whether the judgment of this Court in case of Radhe Developers (supra) would apply or not is a matter of facts to be judged on the basis of material on record. Notice of reopening was therefore valid. 9. Ordinarily, in view of the judgment of the Supreme Court in case of GKN Driveshafts (I .....

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the land and the permission from AUDA was also not obtained by the assessee. According to the Assessing Officer, the development agreement showed that the owners had not given any right or dominion over the land to the assessee. In this context, he referred to an elaborate order of assessment passed in case of the assessee for the subsequent assessment years. The Assessing Officer sought to distinguish the facts of the case from those of M/s. Shakti Corporation, decided by the Tribunal. 11. In .....

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