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TMI Blog2019 (7) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act in Form No.3CB and Form No.10CCB being the audit report for claiming deduction under section 80IB of the Act. Thereafter, the case of the petitioner was selected for scrutiny assessment and a notice dated 12.08.2013 came to be issued to the petitioner under section 143(2) of the Act. The Assessing Officer again issued another notice dated 19.05.2014 under section 143(2) of the Act calling upon the petitioner to furnish audited balancesheet and incometax return, which was complied with by the petitioner vide its letter dated 27.05.2014. The respondent issued another notice dated 12.09.2014 under section 142(1) of the Act asking for details, wherein at point No.13, he had specifically asked the petitioner to justify the deduction under Chapter VI and had also asked the petitioner to submit necessary details with regard to its claim of deduction under section 80IB(10) of the Act. The petitioner complied with the above notice vide letters dated 07.10.2014 and 15.10.2014. The petitioner also submitted complete details of the buyers, who had purchased flats in Springwood Residency project in a tabular form vide point No.3 to its reply dated 15.10.2015. After considering the replies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he details furnished by the petitioner, the Assessing Officer did not deem it fit to disallow the deduction under section 80IB(10) of the Act and hence, the reopening of assessment on the part of the Assessing Officer is based upon a mere change of opinion. 5.2 It was further submitted that during the assessment proceedings, the entire focus of the scrutiny was in respect of the deduction claimed under section 80IB(10) of the Act, in respect of which the Assessing Officer had called for complete details and after perusal of the same, had allowed the deduction. It was submitted that since the reopening of assessment is based upon material which was already available on record, it cannot be said that there is any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment and, hence, the reopening of assessment, after a period of four years from the end of the relevant assessment year, is without authority of law. 6. Opposing the petition, Mr. Varun Patel, learned Senior Standing Counsel for the respondent, submitted that in this case seven flats had been sold either to family members or to the same individual and hence, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2012) 346 ITR 228 (Guj), wherein the court, in the context of clause (22) of section 2 of the Act had held that by simply stating that the petitioner company holds certain shares in SDBL, the duty to truly and fully disclose all material facts necessary for assessment of the income was not discharged; particularly viewed from the Explanation 1 to section 147. It was submitted that in this case by merely submitting a list of purchasers, without disclosing that they were related to each other, it cannot be said that the petitioner had discharged the duty to fully and truly disclose all material facts necessary for its assessment. 6.3 Reliance was also placed upon the decision of Supreme Court in case of Phool Chand Bajrang Lal and Another v. IncomeTax Officer and another, (1993) 203 ITR 456, wherein it has been held that one of the purposes of section 147 of the Act appears to be to ensure that a party cannot get away by willfully making a false or untrue statement at the time of the original assessment and when that falsity comes to notice, to turn around and say: "You accepted my lie, now your hands are tied and you can do nothing." would be a travesty of justice to allow the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the petitioner to disclose truly and fully all material facts, the reopening of assessment beyond a period of four years is without authority of law. 8. In the aforesaid backdrop, the validity of the proceedings under section 147 of the Act which have been initiated by issuing the impugned notice under section 148 of the Act has to be examined. In this regard it may be germane to refer to the reasons recorded for reopening the assessment, a perusal whereof reveals that according to the Assessing Officer, it has been found that (i) deduction of Rs. 86,23,123/was claimed under section 80IB(10) of the Act for Springwood ResidencyI Project; (ii) the petitioner had submitted the details of buyers, which revealed that the petitioner had sold residential units to, in all, seven parties, who were spouses or had more than one residential unit in the same project, as proved by the addresses given by the buyers at the time of booking. Thus, the assessee had not fulfilled the condition for claiming deduction under section 80IB(10) of the Act. The Assessing Officer has recorded that from the information and details, coupled with the provisions of law for eligibility of deduction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee along with the name and addresses, PAN, date of booking, full schedule of payment with cash / cheque, total consideration amount, date of documentation, registration number of document, built up area, super built up area, carpet area and flat no., etc. In the order dated 11.12.2018 dealing with the objections raised by the petitioner, the Assessing Officer has stated that the assessee has cited judicial decisions which have been considered; that the case has been reopened by issuance of notice under section 148 of the Act after duly recording the requisite reasons and taking prior approval from the Principal Commissioner of Incometax and duly serving the assessee and that it is well within six years from the end of the relevant assessment year and therefore, the reopening of the case is technically and legally valid. The Assessing Officer had further stated that the revenue had reason to believe that income to the extent of Rs. 86,23,123/chargeable to tax had escaped assessment and has concluded that the case is correctly opened as per the reasons recorded. In this regard it may be pertinent to note that on a perusal of the objections raised by the petitioner, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minor children of such individual (ii) the Hindu undivided family in which such individual is the karta (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. 13. Prior to its amendment vide Finance Act, 2009, clauses (e) and (f) of section 80IB(10) of the Act, did not find place in the statute book. Clauses (e) and (f) were inserted by Finance (No.2) Act, 2009 with effect from 01.04.2010. However, even after such amendment, no changes have been made in Form No.10CCB to incorporate the requisite details in terms of the amended provisions. Therefore, the Act and the rules framed thereunder do not provide for the assessee to specifically furnish such details along with the return of income. Therefore, in the absence of any column for furnishing such details in Form No.10CCB, it was not possible for the petitioner to incorporate such details therein. 14. Nonetheless, during the course of the original scrutiny proceedings, the Assessing Officer did call for various details from the assessee, including details of the purchasers, their names, addresses with PAN, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta, 17. Therefore, it cannot be said that the petitioner has failed to disclose fully and truly all material facts necessary for its assessment. Besides, during the course of scrutiny assessment the Assessing Officer did call for further details for the purpose of examining the claim for deduction under section 80IB(10) of the Act, which were duly furnished by the petitioner. A perusal of the names and details of the purchasers as furnished by the petitioner makes it clear that in case of seven parties, units had been purchased either by spouses or the same individual had purchased two residential units. Therefore, though all the facts were before him, the Assessing Officer did not examine the claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely because a certain element or angle was not in the mind of the Assessing Officer while accepting such a claim, cannot be a ground for issuing notice for reassessment. This decision would be squarely applicable to the facts of the present case. In this case also, during the course of scrutiny assessment, the Assessing Officer examined the claim for deduction under section 80IB(10) of the Act in detail and raised several queries and after processing such claim accepted the same. He, however, failed to examine the claim in the context of clauses (e) and (f) thereof. Thus, merely because while examining the claim under section 80IB(10) of the Act, a certain angle was not in the mind of the Assessing Officer would not be a good ground for reopening the assessment as the same would amount to a mere change of opinion. 20. Since in the present case, the assessment is sought to be reopened beyond a period of four years from the end of relevant assessment year, in the absence of any failure on the part of the petitioner to disclose truly and fully all material facts necessary for its assessment, the basic requirement for taking action under section 147 of the Act as postulated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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