TaxTMI 
TaxTMI 
2012 (6) TMI 108
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....engineering works, building and developing of residential properties. The petitioner company had filed its return of income for the assessment year 2004-2005, admitting a total income of Rs.38,16,748/-. The return of income, filed by the petitioner company, had been processed, under Section 143(1) of the Act, on 18.5.2005. The revised return had been filed, on 29.4.2005, admitting a total income of Rs.46,13,030/-. The said return was processed, under Section 143(1) of the Act, on 25.11.2005. The case of the petitioner company was selected for scrutiny and a notice, under Section 143(2) of the Act had been issued, on 7.6.2005. 4. It had been further stated that the respondent, after scrutinizing the entire records, including the agreement, had completed the assessment, by an order, dated 27.3.2006, issued under Section 143(3) of the Act, disallowing the entire exemption relating to the deduction, under Section 80IB(10) of the Act. Aggrieved by the said order, the petitioner company had filed a first appeal, before the Commissioner of Income Tax (Appeals), who had confirmed the order of the respondent. Thereafter, the petitioner company had filed a further appeal, before th....
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...., had been initiated correctly and properly, and had issued a notice, under Section 143(2) of the Act, dated 27.9.2011, fixing the date of hearing as 7.10.2011. In such circumstances, the petitioner has preferred the present writ petition, before this Court, under Article 226 of the Constitution of India. 8. The learned Senior Counsel appearing on behalf of the petitioner had submitted that the notice, dated 25.3.2011, issued by the respondent, under Section 148 of the Act, and the consequential order, dated 28.9.2011, rejecting the objections made by the petitioner company, is arbitrary, illegal and void. He had further submitted that the assessment, for the assessment year 2004-2005, had been completed, by an order, dated 27.3.2006, under Section 143(3) of the Act, after considering all the issues relevant to such assessment. Therefore, the re-opening of the assessment, by the respondent, under Section 147 of the Act, is a case of `change of opinion , on a concluded scrutiny assessment, on the same set of facts, contrary to the decision of the Supreme Court, in Commissioner of Income Tax, Delhi Vs. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC). 9. It had be....
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....oner had submitted all the relevant materials to the respondent, at the time of scrutiny of assessment, under Section 143(3) of the Act. It had also been submitted that the respondent, without deciding the issue relating to jurisdiction, as a preliminary issue, had rejected the objections raised by the petitioner, without adducing proper reasons for such rejection. 15. The learned counsel appearing on behalf of the petitioner had relied on the decision of the High Court of Gujarat in Aayojan Developers Vs. Income Tax Officer 2011 (335) ITR 234. It has been stated that the facts and circumstances of the said case is very similar to the present case before this Court. In the said case, the High Court of Gujarat had held as follows: "39. Examining the facts of the present case in the light of the above principles enunciated by the Supreme Court, a bare perusal of the reasons recorded indicates that there is not even a whisper as regards any failure on the part of the petitioner to disclose fully and truly all material facts, nor is it possible to infer any such failure from the reasons recorded. Merely because of the fact that the assessee had asserted that it is a develo....
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....sessment was made out as a result of the failure on the part of the assessee to disclose, fully and truly, all material facts necessary for the assessment. Thus, the Division Bench of this Court had approved the decision of this Court, in Fenner (India) Ltd. Vs. Deputy Commissioner of Income Tax (2000) 241 ITR (Mad.) 672. 18. The learned counsel appearing on behalf of the petitioner had further submitted that there is nothing stated in the notice issued by the respondent, for the re-opening of the assessment, under Section 147 of the Act, in respect of the assesment year 2004-2005 to show that there was a failure on the part of the petitioner to disclose all material facts, fully and truly, for the passing of an assessment order. 19. A mere change of opinion, by the assessing authority, on the finding of a new fact, by such authority, cannot be a reason for the re-opening of the concluded assessment. As such, in the present case, no such reason exists for the re-opening of the concluded assessment, in respect of the assessment year 2004-2005. Therefore, the impugned notice, dated 25.3.2011, issued under Section 148 of the Act, and the consequential proceedings, ....
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....dia) Ltd. Vs. Income-Tax Officer (2003) 259 ITR 19 had been meticulously followed, it would not be proper for the petitioner to state that the said decision had been violated by the respondent. 23. It has been further stated that the petitioner had not fully and truly disclosed the relevant facts, at the time of the original assessment proceedings and therefore, reassessment proceedings had been initiated, as per the proviso to Section 147 of the Act. As such, the contention of the petitioner that the proceedings initiated by the respondent is barred by limitation is liable to be rejected. 24. In fact, the time limit prescribed for the re-opening of the assessment, which is six years from the end of the relevant assessment year, had not lapsed. The re-opening of the assessment had been done only on the basis of the fresh facts gathered after the original assessment. Therefore, the contention of the petitioner that the re-opening of the original assessment is as a result of the change of opinion, cannot be accepted for the reason that no opinion was formed on the issue of eligibility of the deduction, under Section 80IB of the Act, in view of the retrospective ef....
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....lid, cannot be accepted. The Tribunal had no occasion to consider the issue of eligibility of the deduction, under Section 80IB of the Act, from the point of view of the retrospective amendment made to the section, in the year, 2009, with effect from the year, 2001. 27. Further, the issue pending before a Division Bench of this Court, in a Tax Case Appeal, is different from the issue, in respect of which the assessment had been re-opened. In fact, the reason for the re-opening of the assessment is the amendment to Section 80IB(10) of the Act, which says that the benefit of the deduction shall not be allowed, in respect of an undertaking which executes housing projects, as a works contract. 28. It had been further stated that the petitioner is wrong in stating that fresh facts had not come to light for the re-opening of the assessment. The Supreme Court, in Phool Chand Bajrang Lal vs Income-Tax Officer And Another, (1993) 203 ITR 456 SC, had held, in similar facts and circumstances, that when the assessing officer gets fresh information, which were not available at the time of the original assessment, which enables him to form a reasonable belief that certain inc....
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....in Raj Kumar Shivhare Vs. Directorate of Enforcement (2010) 4 SCC 772. As such, the writ petition is devoid of merits and therefore, it is liable to be dismissed. 31. The learned counsel appearing on behalf of the respondent had submitted that the question as to whether the petitioner is a developer or a contractor, undertaking works contracts, was not relevant at the time of the passing of the original assessment order. Only thereafter, after the amendment had been introduced, in Section 80IB of the Act, in the year 2009, with effect from 1.4.2001, the respondent had proposed to reassess the income of the petitioner, by issuing a notice, under Section 147 of the Act. Therefore, it would not be open to the petitioner to contend that the respondent had issued the notice, for the passing of a reassessment order, based on a mere change of opinion. The respondent is empowered to pass a reassessment order based on new grounds, which were not available at the time of the passing of the original assessment order. 32. In reply, the learned counsel appearing on behalf of the petitioner had submitted that the case of the respondent should stand or fall based on the reason....