TMI Blog2019 (3) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 143 (3) of the Act and accepted Petitioner's claim for deduction under Section 80IB (10) As held in HINDUSTAN LEVER LTD. VERSUS RB. WADKAR, ASSISTANT COMMISSIONER OF INCOME-TAX AND OTHERS (NO. 1). [2004 (2) TMI 41 - BOMBAY HIGH COURT] reasons recorded by the Assessing Officer cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the court, on the strength of the affidavit or oral submissions advanced. Therefore, in facts of this case, the reasons in support of the impugned notice not having alleged/ particularized any failure on the part of the Petitioner to disclose fully and truly all material facts necessary for the assessment, the impugned notice is without jurisdiction. - Decided in favour of assessee. - WRIT PETITION NO. 14302 OF 2018 - - - Dated:- 1-3-2019 - AKIL KURESHI M.S. SANKLECHA, JJ. Ms. Ritika Agarwal, for the Petitioner. Mr. N. C. Mohanty, for the Respondent. P.C: At the request of the parties, Petition is taken up for final disposal. 2. This Petition under Article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual or his/her spouse may own more than one residential unit in a project claiming deduction under the aforementioned section. Since multiple flats have been registered/ allotted in the name of same individuals, it is amply clear that the assessee has been in violation of express provisions of the act right from the commencement of the project Valencia in year 2010. Attention also needs to be drawn to the fact that the violation of section 80IB is not a one time event, rather the assessee has been flouting the norms right from the commencement of the project in 2010 to the year 2015. Also, it is worth noting that as many as 25 flats have been registered and advances received from against four flats in the said project 2010 to 2016 flouting the conditions stipulated in section 80IB(10)(f). In view of the above facts and circumstances the deduction claimed by the assessee firm under section 80IB of the I.T. Act, 1961 to the tune of ₹ 1,03,83,468/for the year under consideration was rejected and accordingly, an amount of ₹ 1,03,83,468/was considered as assessee's income from business and added to the total income of the assessee. From the Index II of the fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel appearing in support of the Petition, submits that the impugned notice is completely without jurisdiction as the same has been issued beyond a period of four years from the end of the relevant Assessment Year without having alleged any failure on the part of the Petitioner to disclose fully and truly all material facts necessary for assessment. It is further submitted that, in any case, the Assessing Officer had completely examined the Petitioner's case before extending the benefit of Section 80IB of the Act. The reasons in support of the impugned notice seek to deny the benefit on the ground that the Petition had not satisfied the conditions in Section 80IB (10)(f) of the Act. This issue had been examined during the Assessment Proceedings as is evident from the queries raised. Thus, the impugned notice is completely without jurisdiction and needs to be quashed and set aside. 6. On the other hand, Mr. Mohanty, learned Counsel for the Revenue submits that the reopening notice has been issued consequent to assessment order dated 26th December, 2017 passed for Assessment Year 2015-16. It was submitted that during the assessment proceedings for Assessment Year 2015- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the purchase of the flat, the date of agreement of purchase of the flats and also date of possession to the Assessing Officer. The same was examined by the Assessing Officer. At that time, the Assessing Officer was satisfied that the flats were sold prior to the amendment of 2010. It is consequent to the above that the Assessing Officer passed an order dated 26th March, 2014 under Section 143 (3) of the Act and accepted Petitioner's claim for deduction under Section 80 IB (10) of the Act. Thus, in view of the above, the full and true disclosure at the time of regular assessment, the impugned notice is without jurisdiction. 8. It may be pointed out that at the hearing, the Respondent contended that the assessment was reopened on the basis of the assessment order for Assessment Year 2015-16 where it was found that the commencement certificate for the project was received only on 21st September, 2010 in the name of the Petitioner. Therefore, there was a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for amendments. We find that, the reasons in support of the impugned notice, merely mentions about the Assessment for Assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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