TaxTMI 
TaxTMI 
2014 (2) TMI 798
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....t the plan for plotting and construction for one of the projects, M/s. Shiv Abhishek was passed on 05.02.1997 which was the first plan put up by you for approval. Subsequently modified plans of the same projects were also approved by the local authorities. You had claimed a deduction of Rs.21,59,675/on the said project u/s.80IB(10) of the Act. While completing the assessment, the assessing officer had disallowed deduction of Rs.17,82,842/. Thereby, allowing deduction of Rs.3,76,733/only. As per the provisions of section 80IB(10), whenever approval of housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which such housing project was approved for the first time by the local authority. As such, as per the provision of section 80IB(100) deduction would be allowable in this case only if the project is completed on before 31.03.2008. In the instant case, the construction of the project was completed on 10.01.2010. Thus, the project was completed after the stipulated time limit, by virtue of which, you failed to satisfy the said condition laid down in the said section for availing deduction. ....
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....er for deduction under section 80IB(10) of the Act in the original assessment, any action on his part to disallow such claim would be based on mere change of opinion. Reopening of assessment even within four years, therefore, would not be permissible. 2) That the reasons recorded by the Assessing Officer for issuing the impugned notice itself lacks validity. Counsel would contend that the development permission was granted only in February 2007 contrary to what is recorded by the Assessing Officer. In the year 1997, only permission granted by the local authority was to make the plots in the land. This cannot be equated with permission of development for housing project which is crucial for the purpose of deciding claim under section 80IB( 10) of the Act. 6. On the other hand, learned counsel Shri Sudhir Mehta for the Revenue opposed the petition contending that in the original assessment, though the claim for deduction under section 80IB( 10) of the Act did come up for consideration, this crucial aspect of the housing project not having been completed within 10 years as per the deed for grant of development permission by the local authority, was never examined. H....
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.... and 'mere change of opinion' observed that a mere change of opinion is not enough. A change of opinion is permissible provided it is grounded on additional or tangible material. 4) Devgon Rice and General Mills v. Commissioner of Income-tax and another reported in (2003) 263 ITR 391, where the learned Judge of Punjab and Haryana High Court held that when there was a failure to disclose material facts necessary for assessment or the facts disclosed were found to be untrue, notice for reopening would be valid. 7. We may appreciate the reasons recorded in the background of well laid down parameters for reopening of assessment which was previously framed after scrutiny. We are conscious that such notice has been issued within a period of four years from the end of relevant assessment year. Despite which, it is undisputable that reopening of assessment cannot be resorted to by the Assessing Officer on a mere change of opinion. We are conscious of the distinction between the expressions 'change of opinion' and 'mere change of opinion' as highlighted by the Bombay High Court in case of Multiscreen Media Private Limited (supra). The reasons recorded by the Assessing Off....
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....me chargeable to tax has escaped assessment, formed part of the original assessment record, that per se would not bar the Assessing Officer from reopening the assessment on the basis of such material. The expression 'tangible material' does not mean material alien to original record. 10. In the same judgement, however, it was held that if a certain claim is examined during the scrutiny assessment proceedings, queries are raised and thereafter, the claim is accepted, with or without reasons, the same cannot be subject matter for reopening on the basis of same material since it would amount to a mere change of opinion. 11. Similar view was expressed by three Judge Bench of Delhi High Court in case of Commissioner of Income-tax v. Usha International Ltd. reported in (2012) 348 ITR 485 (Delhi). It was held that in a case where the assessment order itself records that the issue was raised and decided in favour of the assessee, reassessment proceedings will be hit by the principle of change of opinion. It was further observed that reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereaft....
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....61, the provision contained in Subsection 80IA (1) shall be, apply to the eligible business under sub section 80IB (10) of the IT Act, 1961. 5. Hence in light of the facts of your case, that the business of Shiv Abhishek Project which is enjoying the benefit of the 80IB deduction and Pooja Abhishek Project, which is not eligible for 80IB deduction, you are requested to show cause why the excess profit as shown in the 80IB project should not be disallowed and reasonably profit should not be taken as eligible for the purpose of deduction u/s. 80IB of the IT Act, 1961, as per provisions of sub section of the 80IA(10) r.w.s.80(13) of the IT Act, 1961." 13. In response to such query, the petitioner placed her objections and material in support of such objections. In the assessment order, the Assessing Officer carried out detail discussion and devoted several pages to conclude that the entire claim of deduction under section 80IB(10) of the Act could not be granted. He reduced the claim to a reasonable profit of 3.89% shown for another housing project of the petitioner as against the profit at the rate of 22.3% claimed by her in the return. Eventually, out of a total c....
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....the limited scope of the question itself." 17. In the said decision itself, the Court observed that each case must depend on facts individually and in a given case, it may be possible for the assessee to argue that all aspects of the claim were examined or that different facets of the claim were so inextricably interlinked that the assessing officer must be taken to have examined the entire claim. This precisely is the situation in the present case. As noted claim under section 80IB( 10) of the Act was the sole claim of the petitioner in the return filed. The entire claim was examined at length. To the extent the Assessing Officer thought the same was not allowable, after hearing the petitioner and inviting her response, he disallowed the substantial portion of the claim. It is now therefore, not possible for the Revenue to canvas that yet another element of the claim was not gone into by the Assessing Officer and that therefore, fresh look would be permissible. 18. In case of Cliantha Research Limited v. Deputy Commissioner of Income Tax reported in 213 (35) Taxman.com 61 (Guj), Division Bench of this Court in somewhat similar background observed as under : "....