TMI Blog2019 (11) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for the Assessing Officer to come to reason to believe that income chargeable to tax has escaped assessment. The reasons set out in the order of disposing of objections cannot form basis of his reason to believe that income chargeable to tax has escaped assessment at the time he issued the impugned notice. As pointed out above the reasons recorded prior to issue of the impugned notice were on facts which was a subject of consideration in proceedings under section 143(3) of the Act. Thus a clear case of change of opinion and notice without jurisdiction. - Decided in favour of assessee. - WRIT PETITION NO. 8045 OF 2019 - - - Dated:- 17-10-2019 - M.S. SANKLECHA NITIN JAMDAR, JJ. Mr. Mihir Naniwadekar a/w Mr. Rohan Deshpande i/b Ms. Alisha Pinto, for the Petitioner. Mr. Sham V. Walve a/w Mr. Pritish Chatterjee, for Respondents. P.C. : At the request of the parties the Petition is being taken up for final disposal at this stage. 2. This Petition under Article 226 of the Constitution of India seeks to challenges a notice dated 29 March 2019 issued under Section 148 of the Income Tax Act 1961 (Act). The impugned notice se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2012-13. The assessee has claimed deduction u/s.80IB(10) in respect of its projects Shagun Phase I . As per records number of buildings in shagun phase-I are A,B,C,D,E,F, Row houses and Bungalows G1 and G2. The first sanction for the project was received on 20.03.2007 i.e. F.Y.2006-07. After that, the assessee had received completion certificate for building A,B,E,F, Row House 1,2,3,4,17 and 18 on 25.03.2011 whereas completion certificate for building C D, Row House 5 to 11, 11A, 12, 13, 14, 15 16 and Bungalows G1 and G2 was received on 25.09.2012. As per section 80IB(10), the project as a whole should be completed within 5 years after the end of F.Y. in which the first sanction was received. As the project got sanction on 20.03.2007, the project should have been completed by 31st March, 2012. As per the provisions of Section 147 of the I.T.Act, 1961, the undersigned has reason to believe that the income chargeable to tax amounting to ₹ 3,38,63,518/- has escaped assessment as assessee has wrongly claimed deduction u/s 80IB(10) in respect of Profit earned in these buildings and filed ITR declaring Income at ₹ 8,487/-. Thus there is failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also the notice would be without jurisdiction. In view of the above it is submitted that the impugned notice be quashed as being without jurisdiction. 6. On the other hand Mr.Walve, learned counsel appearing on behalf of Revenue in support of the impugned notice submits as under : (a) The order disposing objections records the fact that the material which led to the belief of the Assessing Officer that income chargeable to tax has escaped assessment was found / noticed during the assessment for the subsequent Assessment Year 2014-15. In the Assessment Year 2014-15 it was found that the completion certificate received by the Petitioner was only of part completion. Therefore, it was a case of fresh tangible material leading to the impugned notice to prima facie hold that benefit under section 80IB(10) of the Act could not be granted to the Petitioner; and (b) The Petitioner cannot take advantage of having disclosed incorrect and/or incomplete facts in the regular assessment proceedings for the subject Assessment Year. It is not open to the Petitioner to claim that having accepted the claim in regular assessment proceedings, it is not open to reopen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that the benefit of section 80IB(10) of the Act is not available to the entire project. However, these facts which are being relied upon by Mr.Walve are only recorded in the order disposing of the Petitioner s objections and do not form a part of the reasons for the Assessing Officer to come to reason to believe that income chargeable to tax has escaped assessment. This reliance upon an order disposing of objections to the reopening notice cannot be a ground different for the reasons recorded. The validity of the impugned notice has to be tested only on the basis of the reasons recorded for issuing the notice. In fact this issue is no longer res-integra. This Court in Hindustan Lever Vs R.B.Wadkar 208 ITR page 332 has held that the reopening notice must stand or fall only on the reasons recorded by the Assessing Officer while issuing the reopening notice. It is not permissible for the Assessing Officer to either substitute and/or delete and/or add to the reason recorded while issuing the notice of reopening. Thus this reliance by Mr.Walve on the order disposing of objections is not justified. 9. Therefore one has only to examine the reasons as record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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