TaxTMI 
TaxTMI 
2012 (5) TMI 146
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.... Rs.3,64,17,127/-. 2.2 The working of this calculation was attached with the statement of income. A note No.7 pertaining to the fact that audit report in prescribed form No. 10CCB under Section 80IB [10] was enclosed along with the evidence. Note No.9 to such statement mentioned the different enclosures viz. development agreement, partnership deed of the firm, construction development permission, building use permission, approved plans and sample copy of allotment agreement with members which were attached to the computation of income. Over and above, the balance-sheet and profit and loss account were also attached to the return of income along with Form No. 3CB and 3CD wherein in Form No. 3CD, at Point No.26, specifically the details of deduction under Chapter VI-A had been mentioned in accordance with the requirement. 2.3 Form No. 10CB which is a form of audit report for claiming deduction under Section 80IB and which is prescribed under Rule 18BBB was also enclosed with the return in which the details about the project on which deduction under Section 80IB[10] was claimed were submitted. 2.4 A notice dated December 11, 2006 under Section 142[1] of the Act....
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..... In the said submission, the petitioner requested that a copy of the reasoned order be given to the petitioner which had not been provided. 2.10 Thereafter, a notice dated July 25, 2011 under Section 143[2] of the Act was served on the petitioner on July 27, 2011, asking the petitioner to attend the office of the respondent. The petitioner replied to the said notice vide letter dated August 2, 2011, wherein, the petitioner once again drew attention of the respondent to the letter objecting to reassessment notice and requested the respondent to furnish a copy of the reasons recorded. 2.11 The respondent vide letter dated August 4, 2011 furnished the copy of the reasons recorded by him for taking steps for initiating process of reassessment. The reasoned order is quoted below: "The assessee who is engaged in the business of real estate has filed its return of income at Rs 20,39,924/- on 22/07/2005. Income is assessed u/s. 143[3] of the Act at Rs.20,95,530/- on 20.12.2007 after allowing exemption u/s. 80IB of Rs.3,64,17,127/-.The assessee entered in a development agreement with Mahima [Satellite] Co. Op. Housing Society Ltd. On 07.07.2003. The terms of agreeme....
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.... the point. 2.13 The petitioner received another notice dated November 15, 2011 given by the respondent asking it to furnish the details so that the reassessment proceedings could be decided on merits. The petitioner vide letter dated November 18, 2011 once again drew the attention of the respondent to its previous objections taken vide letter dated April 12, 2011. The petitioner also mentioned the decision of the Supreme Court in the case of GKN Driveshafts [India] Ltd. [supra] and requested that at least 30 days may kindly be granted to the petitioner in case the objections were not accepted favourably so that the legal remedy could be availed of by the petitioner. 2.14 However, the petitioner received the impugned reassessment order dated December 12, 2011 under Section 143[3] read with Section 147 of the Act, instead of an order disposing of the objections taken by it. Hence this petition. 3. This petition is opposed by the respondent by filing affidavit-in-reply and the defence taken by the respondent may be summed up thus: 3.1 In view of the alternative remedy prescribed in the Act itself, this petition should be rejected. 3.2 After pas....
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.... details on record, it was evident that the assessee did not fulfill the conditions to be eligible for deduction under Section 80IB[10] of the Act. Therefore, the case was reopened under Section 147 of the Act after recording the reasons and obtaining the approval from the Commissioner of Income Tax, Ahmedabad-IV, Ahmedabad. The case was reopened in due time as per Section 149 of the Act. 3.5 The assessee vide letter dated April 12, 2011 raised objections to the reopening of assessment. The objections so raised were not acceptable and accordingly, the reassessment had been finalized under Section 143[3] read with Section 147 of the Act. 3.6 The assessee had not disclosed fully and truly all the material facts necessary for its assessment. Therefore, the proviso to Section 147 was applicable. The assessee ought to have disclosed the full and true material facts and as such, it is a fit case of rejection. 4. The assessee has given a rejoinder to the affidavit-in-reply filed by the respondent. In the said rejoinder, the assessee has reiterated the statements made in the petition and in addition to that, it was also pointed out that: [a] It had furnished....
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....e enrolled at the instance of the petitioner. [g] It was also denied that the petitioner was constructing the houses on behalf of the society, because, the petitioner had entered into housing construction and development agreement in accordance with which the petitioner had all the rights of construction and the petitioner was not constructing on behalf of the society. The petitioner is, therefore, a developer and not work contractor as the risk and reward under the development agreement is entirely on the petitioner. 5. Mr. M.J. Shah, learned advocate appearing on behalf of the petitioner, laboriously contended before us that the respondent acted without jurisdiction in initiating the reassessment proceedings as well as passing the reassessment order, as the conditions precedent for invoking the jurisdiction for reassessment were absent. According to Mr. Shah, even when the petitioner raised objections against the proposed reassessment and asked for disposing of such objections, the respondent failed to dispose of such objection in spite of repeated reminders and ultimately, passed the reassessment order. Thus, according to Mr. Shah, this Court should set aside the....
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....smissed. 11. It is now settled law that if a litigant has concurrent remedies against the selfsame order, it can avail of the both without prejudice to his rights and contentions made therein unless there is a specific bar created by statute in the matter of availing both the remedies. For instance, under the Code of Civil Procedure, against a judgment and decree, a party can file an application for review before the selfsame court on limited grounds and also file regular appeal before the higher forum the scope of which is much wider. However, the law provides that once the appeal is filed, thereafter, the application for review cannot be filed, whereas during the pendency of the application for review, if the appeal is subsequently filed, for that reason, the review application filed before filing of the appeal does not become infructuous. However, if the appeal is disposed of on merit before disposal of the application for review, the application for review will become infructuous. 12. Similarly, against an exparte decree, an aggrieved defendant can prefer both regular appeal under Section 96 and an application for setting aside exparte decree by taking recourse ....
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....uestion loses its importance once the High Court has entertained the writ-application and invited the respondent to file affidavit and the respondent has already filed such affidavit. We, therefore, overrule the preliminary objection raised by Mrs. Bhatt regarding the maintainability of this application. 16. On merit, we find that in the original assessment proceedings, when specific queries were made by issuing notice under Section 142 of the Act on the question of getting the benefit under Section 80 IB(10) of the Act, the petitioner specifically answered all the queries. Earlier, at the time of filing of original return, it complied with all the requirements of law for getting the benefit of Section 80IB[10] of the Act. In spite of existence of all those materials, the Assessing Officer decided to grant the above relief. 17. Therefore, if from the selfsame materials, the Assessing Officer forms a second opinion and reopens the assessment merely on the ground that on second thought, a different view is possible, such fact does not authorize him to reopen the assessment within the purview of Section 147/148 of the Act. In this connection, we may profitably refer to....
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.... ground that it would vest arbitrary powers in the assessing officer. 8. We quote hereinbelow the relevant portion of Circular No. 549 dated 31-10-1989, which reads as follows: " 7.2. Amendment made by the Amending Act, 1989, to reintroduce the expression 'reason to believe' in Section 147. - A number of representations were received against the omission of the words 'reason to believe' from Section 147 and their substitution by the 'opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, 'reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from Section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended Section 147 to reintroduce the expression 'has reason to believe' in the place of the words 'for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new Section 147, however, remain the same." (emphasis supplied) 9. For the aforestated reasons, we see no merit in these civil appeals filed by the Department....
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...., and furthermore, the respondent authorities having come to a conclusion and passed an order at Mumbai, the appeal from the said order was required to be filed at Mumbai before the appellate authority. Therefore, according to the learned Single Judge, no integral part of cause of action had arisen within the jurisdiction of Calcutta High Court in respect of the order passed by the authority under Section 163 of the Act. 24. As the assessee had challenged the notice under Section 148 of the Act, according to the said learned Single Judge, the notice had been served on the petitioner to file return by respondent no.1 who had his office at Mumbai and against the order, if any, passed by the said authority, the appeal against such order would also be required to be filed at Mumbai by the petitioner as agent under Section 148 of the Act. Accordingly, the learned Single Judge was of the view that no integral part of cause of action to challenge the notice had arisen within the jurisdiction of the Calcutta High Court. 25. After deciding the aforesaid question of territorial jurisdiction on merit, His Lordship proceeded to decide whether alternative remedy available should....
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....alternative remedy. 30. In the case of Mafatlal Industries Ltd. v. Union of India (supra), the majority laid down the following proposition of law about alternative remedy in the facts of that case: "Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to ....