TMI Blog2017 (6) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, which he had noticed in the assessment year 2009-10, for the present year i.e. assessment year 2006-07. Further his reference to the assessee not fulfilling the conditions for claim of deduction is, by itself, rather vague and general reference. In our understanding, the reasons lack clarity. there was no failure on the part of the assessee to disclose necessary facts. The documents in the nature of contracts between the government and other agencies were very much part of the record. In a case where reopening of assessment is being resorted beyond the period of four years this would be relevant. Further, during the assessment pursuant to the first notice for reopening, the Assessing Officer had examined the claim of deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment on 31.3.2010. A copy of the reasons for reopening is placed on record by the counsel for the petitioner. Perusal of such reasons would show that the Assessing Officer had dispute about the assessee's claim of deduction under Section 80IA (4) of the Act with respect to its one of the units situated at Alang. The Assessing Officer in the order of assessment dated 31.3.2010 held that said unit of the assessee did not qualify for deduction on the ground that the assessee did not fulfill one of the conditions viz. of owning the infrastructure facilities. According to the Assessing Officer, the assessee derived the income from Alang unit by the assessee executing a work contract and not executed the work directly. 4. To once again r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act, 1961. 5. Assessee objected to such notice of reopening and the communication dated 25.3.2012. These objections were rejected by the Assessing Officer by an order dated 29.10.2012. Hence, this petition. 6. Appearing for the petitioner, learned counsel Shri Bandish Soparkar raised following contentions. (i) Impugned notice has been issued beyond period of four years from the end of the relevant assessment year and there was no failure on the part of the assessee to disclose truly and fully all material facts. (ii) During the assessment, original as well as in the reopening process, the Assessing Officer had examined the assessee's claim of deductions under Section 80IA (4) of the Act. To the extent he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the norms and thus failed to fulfill the status of solid waste management treatment plant, which was eligible for deduction. He further formed the opinion that the assessee did not fulfill the conditions for exemption under said provision. The assessee's claim for exemption was thus disallowed for the said year for all its treatment plants. Second paragraph of the reasons concerns the assessment year in question. With respect to the same, the Assessing Officer recorded that since the assessee was not fulfilling the conditions laid down under Section 80IA of the Act, deduction of ₹ 1.43 Crores claimed by the assessee would have to be disallowed by reopening the assessment. 9. What can be seen from such reasons is that though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure on the part of the assessee to disclose necessary facts. The documents in the nature of contracts between the government and other agencies were very much part of the record. In a case where reopening of assessment is being resorted beyond the period of four years this would be relevant. Further, during the assessment pursuant to the first notice for reopening, the Assessing Officer had examined the claim of deduction under Section 80IA (4) of the Act. It may be that the Assessing Officer had only one of the units of the assessee in mind when such assessment was being framed. Nevertheless nothing prevented him from disallowing such deduction qua other units also if similar situation obtained. 12. There is another reason why this gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not necessarily imply that such defects existed during the period nearly three to four years back. Unless that defect was of such a nature, which would automatically establish that no facilities were ever created, the revenue would have to have some foundation to suggest that during the period relevant to assessment year 2006-07 also such defects existed. This being a case of reopening of assessment, only for the purpose of fishing inquiry the same would not be permissible. 14. In the result, petition is allowed. Impugned Notice dated 28.3.2012 issued by the respondent-Assessing Officer to reopen the petitioner's assessment for the assessment year 2006-07 is set aside. Rule is made absolute. - - TaxTMI - TMITax - Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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