TMI Blog2020 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of assessment year 2011-12, which is clearly beyond a period of four years from the end of the relevant assessment year. Therefore, the first proviso to section 147 of the Act would be attracted and for the purpose of assuming jurisdiction under section 147 of the Act by the Assessing Officer, there has to be failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration. The facts reveal that the petitioner had duly furnished the approval dated 06.02.2008 granted by the GUDA for the housing project; however, the Assessing Officer, in the reasons recorded has termed such approval as a fictitious document on the ground that the original approval was granted on 16.03.2005. Approval dated 16.03.2005 granted by the local authority was for an office building and not a housing project and hence, not submitting the same at the time of the scrutiny assessment cannot in any manner be termed as non-disclosure of relevant facts necessary for the assessment. Under the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has, therefore, presented the present petition challenging the impugned notice as well as the order passed by the respondent rejecting the objections filed by the petitioner. 3. Mr. B. S. Soparkar, learned advocate for the petitioner, invited the attention of the court to the reasons recorded for reopening the assessment to submit that the reasons recorded are factually incorrect. It was submitted that at the time of scrutiny assessment, the petitioner had given the correct facts; however, the reopening is based on incorrect facts. It was pointed out that in this case the date of approval of the housing project is 06.02.2008 and not 16.03.2005 as referred to in the reasons recorded. It was submitted that the Assessing Officer has wrongly come to the conclusion that the petitioner had furnished concocted documents on the basis of which the then Assessing Officer had allowed the deduction under section 80IB(10) of the Act for the assessment year under consideration. 3.1 It was further submitted that the reopening of assessment is based upon a mere change of opinion as during the course of scrutiny assessment, the Assessing Officer had called for the record from Gandhinagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 80IB(10) of the Act has to be computed by considering the date of approval as 16.05.2005. It was submitted that the completion date has to be computed from the date of initial approval and what is to be considered is the first approval; whereas, in this case, the first approval has been given in 2005 and hence, the petitioner would be entitled to get deduction under section 80IB (10) of the Act, provided it completes the project within a period of four year from the date of initial approval. It was submitted that in this case admittedly the B.U. Permission was granted by the GUDA on 31.03.2012 and hence, the petitioner had not fulfilled the condition stipulated under sub-clause (ii) of clause (a) of section 80IB (10) of the Act, and hence, the petitioner was not entitled to deduction thereunder. 4.1 Reliance was placed upon the decision of this court in the case of CIT v. Radhe Developers [2012] 17 taxmann.com 156/204 Taxman 543/341 ITR 403 (Guj.), wherein the court held that the assessees were entitled to the benefit under section 80IB(10) of the Act even where the title of the lands had not passed on to the assessees and in some cases, the development permissions may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different assessees and the two plans submitted by them are different. Insofar as the first plan submitted by Sheetal Developers in the year 2005 is concerned, such plan was not eligible for the benefit of section 80IB(10) of the Act. The attention of the court was invited to the fact that in the subsequent year, the Assessing Officer had disallowed the claim under section 80IB(10) on the very same ground, against which the petitioner had approached the Commissioner of Income Tax (Appeals) who had set aside the disallowance made by the Assessing Officer against which, the revenue has approached the Tribunal. It was, accordingly, urged that this is a clear case of change of opinion and in any case, on the reasons recorded by the Assessing Officer, he could not have formed the belief that the income chargeable to tax has escaped assessment. 6. Since the controversy involved in the present case relates to the eligibility or otherwise of the petitioner to get deduction under section 80IB(10) of the Act in respect of its housing project, it may be germane to refer to sub-section (10) of section 80IB of the Act, which as it stood at the relevant time, reads as under: 80-IB. Deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate built-up area of the housing project or five thousand square feet, whichever is higher. (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted on 06.02.2008, the housing project can be said to have been completed within the time allowed under clause (a)(iii) of section 80IB(10) of the Act entitling the petitioner to deduction under section 80IB(10) of the Act. 9. In the present case, the first approval was granted by way a Raja Chitthi (Permission) by the Kudasan Gram Panchayat in favour of Sheetal Developers on an application dated 16.03.2005 made in respect of a scheme called Vedika-I, whereby, approval was granted for construction of an office. In the said Raja Chitthi, it has also been recorded that the land has been converted for non-agricultural purpose. Thus, by virtue of the said Raja Chitthi, the Kudasan Gram Panchayat had granted approval for construction of an office. It appears that Sheetal Developers had floated a residential scheme being Vedika-I comprised of several residential plots with provision of internal roads, margin, common plot and the above referred approval was obtained from the Kudasan Gram Panchayat for construction of an office building for such scheme. Thus, Vedika-I appears to be a scheme for residential plots wherein, individual plots were sold to individuals. Thereafter, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on 16.03.2005 in respect of an office building, in the subsequent approval granted to the petitioner in respect of the subject land for a housing project, the plan is referred to as a revised plan. Nonetheless, from the facts as emerging from the record, it is manifest that insofar as approval for a housing project in respect of the subject land is concerned, such approval was granted for the first time on 06.02.2008. The Explanation to clause (a) of section 80IB(10) of the Act provides that in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. In the present case, approval in respect of housing project is obtained for the first time on 06.02.2008 and hence, that is the relevant date for considering the eligibility for deduction under section 80IB(10) of the Act. It is an admitted position, as reflected in the reasons recorded for reopening the assessment, that the project was completed on 31.03.2012, which is well within the period prescribed for completion of the project for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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