9911796707
TMI Blog2019 (6) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2011-12 on 30.9.2011 declaring total income of Rs. 35.94 Crores (rounded of). This was revised by declaring total income of Rs. 35.66 Crores (rounded off). In the return, the petitioner had claimed deduction for sum of Rs. 56.13 Crores under Section 80-IB(10) of the Income Tax Act, 1961 ("the Act" for short"). The return filed by the petitioner was taken in scrutiny by the Assessing Officer. The Assessing Officer passed an order of assessment under Section 143(3) of the Act on 8.3.2014 accepting the petitioner's declared income. Subsequently, the petitioner was subjected to search operations. Post search also, the assessment was carried out. Thereafter, the Assessing Officer issued the impugned notice. In order to do so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parking the eligible profit works out to Rs. 50,49,35,215/- whereas deduction had been allowed at Rs. 56,13,80,172/-. Therefore, the same resulted in excess allowance of deduction of Rs. 5,74,34,957/-. 3. Further, it was observed that assessee submitted details containing saleable area and carpet area in respect of each flat. On going through the same, it was noticed that the area of each flat was more than 1000 sq. ft. and the corresponding carpet area was less than 1000 sq. ft. and the built-up area was not given. Obviously, the deduction was allowed on the basis of carpet area which is incorrect because the provisions of the Act clearly mentions that the deduction had to be allowed to only those projects wherein built-up area of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In view of the above, it is evident that an income to the extent of Rs. 56,13,80,172/- has resulted in under assessment of income of assessee to that extent. 6. In view of the fact mentioned above, it is evident that the assessee has not fully and truly disclosed all the material facts necessary for his assessment during the assessment proceedings which has led to the escapement of income for AY 2011-12. On the basis of the aforesaid tangible material available with me now, I have reason to believe that an amount of more than Rs. 1,00,000/- has escaped assessment for AY 2011-12 within the meaning of section 147 of the IT Act." 2.2 The petitioner raised objections to the notice of reopening under a communication dated 4.9.2018. Such ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned notice has been issued beyond the period of four years from the end of relevant assessment year. There was no failure on the part of the assessee to disclose truly and fully all material facts; (ii). The assessee's claim of deduction under Section 80-IB(10) of the Act was examined minutely during the original assessment proceedings as well as during the post search assessment. Any attempt on the part of the Assessing Officer to dislodge the claim would be based on change of opinion since no additional material is available with the Assessing Officer; (iii) Even otherwise, the reasons recorded lack validity and proceeded on erroneous averments. Learned counsel pointed out that the assessee had supplied full details of carpet area. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project. The petitioner's return was taken in scrutiny. During scrutiny assessment, the Assessing Officer had raised queries which can be gathered from the fact that the petitioner had supplied several details as called for by the Assessing Officer. In one of the communications, the petitioner had made detail submissions providing materials on allowability of deduction under Section 80- IB(10) of the Act. Thus, petitioner's claim of deduction under Section 80-IB(10) of the Act was scrutinized by the Assessing Officer during the original scrutiny assessment. After such scrutiny, he passed an order of assessment in which he made no disallowance. Any attempt on his part now to disturb the claim would be based on change of opinion whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to tax had escaped assessment. We are not oblivient to the explanation to Section 147 of the Act heavily placed reliance upon by the learned counsel for the Revenue, however, since a days of decision in case of Calcutta Discount Co Ltd Vs. ITO 41 ITR 191, it is well settled that the duty of the assessee is to disclose primary facts. What legal inference to be drawn on the basis of such facts is within the realm of the Assessing Officer's jurisdiction. 10. Additionally, we find that the objections with respect to not providing built up area details and breach of clause (f) to Section 80-IB(10) of the Act are unsustainable factually and legally respectively. The assessee had provided full details including built up area of the flats ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
