TaxTMI 
TaxTMI 
2013 (8) TMI 554
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.... Act on 28-12-2006. Thereafter, assessing officer reopened the case mainly on the ground that neither the development permission was in favour of the assessee nor the land owned by the firm, which indicated that assessee was a mere contractor and in view of retrospective amendment of section 80IB(10) of the Act was not eligible for deduction under this section. The reassessment was completed after withdrawing the deduction claimed u/s 80IB(10) of the Act. 5. Before Ld. CIT(A) assessee placed reliance on the following written submissions. "Being aggrieved by an order passed by the ld. Assessing Officer, Wd-4, Gandhinagar (hereinafter referred as the ld. A.O.) dt. 31-12- 211; the appellant has preferred an appeal on the grounds of appeal appended with the appeal memo, in support of the said grounds the appellant hereby submit the facts of the case as under: 1) That appellant has been engaged in construction and development of land since long. It has been assessed to income tax since its commencement. 2) The appellant firm partners were co-owners of the land and they had paid Rs.8.94 lacs to other co-owner for the land purchase. Thus the land owned by the firm and it had c....
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....rded are as under. "In this case Development permission was nor in favor of the assessee firm. The firm was not owner of the fond. This indicates the assessee is mere construction contractor, not eligible for deduction u/s 801B(10) of the action view of retrospective amendment to the section. In view of the said facts, i have reason to believe that the income chargeable to tax has escaped assessment for A.Y.2004-05, hence it is a fit case to reopen the assessment u/s 147 of the I T act" From the above, it is ample clear the present case has been reopened merely on the three grounds : - 1. the permission was not in favor of the assessee, 2. the firm is not owner of land, 3. there has been amendment in act retrospectively, At the outset, we would like to draw your attention towards the provision of section 80IB(10) of the act, which clearly stipulates that there have been three conditions stated in para -3 supra. It is also note worthy during the course of original assessment proceeding, we had submitted all the evidences in respect of land purchase and bank statement, which clearly transpires the observations of ld. AO has been far from truth and perverse. A. th....
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....laim of appellant, as the appellant had carried out the development and construction work on his own land with complete risk and entire profit went into its hand only; hence it could not be treated as work contractor in any case. These apparent facts have been fully considered earlier scrutiny assessment and allowed the deduction accordingly. Even otherwise the appellant cannot predict the future amendment before the end of its housing project in Sept. 2006. Thus the reasons recorded have been irrelevant and contrary to fact and evidences on record, hence the assessment order bad in law ab initio; so the same may quashed. Considering the clear fact & stated above, we rely on following case laws. Sadbhav erg. Ltd Vs. DCIT - 333 ITR 483 (Guj,), GPCL Vs. JCIT - 238 CTR (Guj) 91. Austin eng. Co. ltd - Vs. JCIT - 312 ITR 70 (Guj.) Hynoup food Vs, ACIT 307 ITR 115. Telco Dadajee Dhackjee ltd. Vs. DCIT-ITA No.4613 / Mum / 2005 Without prejudice to above, even on merits of the case; the appellant was owner of lard it had made the payments of land, Guda fees, labor contractors, materials purchases and fixed rate of residence units. In nut shell the appellant had complete doma....
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....case Development permission was not in favour of the assesses firm. The firm was not owner of the land. This indicates the assesses is mere construction contractor, not eligible for deduction u/s 80IB(10) of the action view of retrospective amendment to the section. In view of the said facts, I have reason to believe that the income chargeable to tax has escaped assessment for A.Y.2004-05, hence it is a fit case to reopen the assessment u/s 147 of the I. T. Act." Clearly, the reopening is on the basis of retrospective amendment to the section 80IB(10). From the reasons recorded. it is apparent that the assessment was sought to be reopened on the ground that as per the Explanation given below sub-section (13) of section 80-IA, which had been substituted by the Finance (No. 2) Act, 2009 with retrospective effect from 1/4/2000, deduction under section 80-IA would not be admissible to an assessee who carried on business which was in the nature of works contract. However, the notices were totally silent as regards any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the relevant assessment years. As laid down in ....