TMI Blog2022 (10) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... . We draw support in this regard from the celebrated decision of the Full Bench of the Delhi High Court in the case of Kelvinator India Ltd. [ 2002 (4) TMI 37 - DELHI HIGH COURT] that settles the proposition that re-assessment must be based on new and tangible material that has come to the note of the Assessing Authority after completion of the original assessment. In the present case, a perusal of the reasons would indicate clearly that there is nothing new and it is, in fact, the very note filed by the assessee as well as material that was available on record that has been invoked by the Assessing Officer to reopen the assessment. The counter filed by the Department makes a lukewarm attempt to defend the impugned proceedings by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet the requirements of the Residents the Company has constructed the Vidya Mandir school. Those who own a flat in Estancia will be given preference in the school admission at Vidya Mandhir. The school has been constructed at a total cost of Rs.20.96 crores. The school is run with the non-profit motive. The write off has started from the Financial Year 2011- 2012. For the financial year 2013-2014 a sum of Rs.1.54 crores has been written off and charged to profit and loss account. The write off is on the sales area completed proportionate to the total sale area of the project.' 3. After due enquiry, an order of assessment was passed under scrutiny on 28.03.2016 accepting the claim for write off. That the return comprises particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction, IT park and commercial activity. As seen from the records, it is ascertained by audit that the school Vidya Mandir was built by the assessee to meet the requirements of the residents. The school has been constructed at a total cost of Rs.20.96 crores. The write off has started from financial year 2011-12. For the financial year 2013-14 a sum of Rs.1.54 crores has been written off and charged to P L account. The write off is on the sales area completed to the total sale area of the project. The building has been handed over to Vidya Mandir management trust. The school is fully run by the Vidya Mandir management trust and the books of account are maintained by the Vidya Mandir school. The assessee is not receiving any income from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 7. Thus, the officer specifically records that there has been a debit of the school cost in the profit and loss accounts in respect of three years, i.e., A.Y. 2012-13, 2013-14 and 2014-15. Admittedly, no proceedings for re-assessment has been taken in respect of 2012-13 and 2014-15. This, by itself, would vitiate the proceedings, since consistency of approach has to be the basis of any proceedings to address escapement of tax. 8. Seeing as the issue spans three years, it was necessary for the Department, if at all it had been serious in the matter, to have taken a uniform and concerted approach to block the leakage for all the years in question. This, in my view, is a vital flaw by itself vitiating the impugned re-assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elvinator India Ltd. (256 ITR 1) that settles the proposition that re-assessment must be based on new and tangible material that has come to the note of the Assessing Authority after completion of the original assessment. 13. In the present case, a perusal of the reasons would indicate clearly that there is nothing new and it is, in fact, the very note filed by the assessee as well as material that was available on record that has been invoked by the Assessing Officer to reopen the assessment. The counter filed by the Department makes a lukewarm attempt to defend the impugned proceedings by stating that only a 'half page note' had been filed by the assessee which would not suffice. 14. In my considered view, this defence is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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