TaxTMI 
TaxTMI 
2014 (6) TMI 296
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....titioner challenged such order of scrutiny before the Commissioner of Incometax (CIT) (Appeals) and such appeal was partly allowed. Both the sides challenged the same before the Tribunal and the Tribunal has already adjudicated upon the issue in a recent past. 3. By way of these petitions, the challenge is made to the notice issued under section 148 read with section 147 of the Act. On the basis of retrospective amendment, the explanation given under sub-section (13) of section 80IA of the Act is substituted by the Finance (No.2) Act, 2009. On March 15, 2010, the reasons recorded by the Deputy Commissioner of Income-tax state as follows : "1. The assessment order u/s.143(3) was passed on 29/06/2007, assessing the total income at Rs.6,06,14,076/-wherein the claim of deduction u/s.80IA of Rs.1,42,20,515/- allowed against the claim of Rs.4,81,64,760/-. 2. As per explanation given below to subsection (13) of section 80IA of the Act, which has been substituted by the Finance (No.2) Act, 2009 w.r.e.f. 01.04.2000, deduction u/s.80IA shall not be admissible to an assessee who carries on a business which is in the nature of a works contract. The relevant explanation is reproduced b....
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....impugned notice dated 17.03.2010 under section 148 of the Income-tax Act, 1961 annexed hereto at Annexure-'D' along with preliminary order dated 4.05.2010 annexed hereto at Annexure 'H' for proceeding and completing Reassessment proceedings. (B) Pending admission, hearing and disposal of this petition, ad-interim relief be granted and the Respondent be ordered to restrain from enforcing compliance of the impugned notice dated 17.03.2010 at Annexure 'defendant' and/or taking any other steps in this regard including ex.parte order or implementation of Preliminary order dated 04.05.2010 at Annexure 'H'. (C) Pending admission, hearing and till final disposal of this petition, stay the implementation/ operation of the notice and orders to restrain the Respondent from taking any further proceedings pursuant to the impugned notices at Annexure 'D' including stay of operation of Preliminary order at Annexure 'H'. (D) Award the cost of this petition. (E) Grant such other and further relief as this Hon'ble Court deems fit." 8. The petitioner was protected at the time of admitting the petition and the respondent No.1 was permi....
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....d. He further submitted that the Court in Karita Construction Ltd. v. Union of India and others, reported in 352 ITR 513 (Guj.) has held that introduction of the explanation in question did not amount to introduction of a new provision of law with retrospective operation. The Court also has held that the explanation to sub-section (13) of section 80IA of the Act with retrospective effect from April 01, 2000 was introduced by the legislature for clarifying certain doubts for removing confusions and such explanation was to fill in the gap left in the statute to suppress the mischief. The Court at the relevant time also had referred to the decision in the case of Parikshit Industries Pvt. Ltd. (supra). Yet another decision sought to be relied on is rendered by the Division Bench of this Court in the case of Agrawal J.V. v. Income Tax Officer and another, rendered while dealing with Special Civil Application No.17885 of 2007, reported in 83 DTR 101. 11. The learned senior counsel Mr.Bhatt appearing for the respondent-Revenue has urged that at the time of issuance of notice for reassessment, there was no change of opinion on the part of the Assessing Officer, however, counsel could n....
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....on below sub-section (13) to section 80IA. The explanatory memorandum recorded that profit linked deductions were prone to considerable misuse. With a view to preventing such misuse of the tax holiday under section 80IA, it was proposed to amend the explanation to the said section to clarify that nothing contained in the section shall apply in relation to a business which is in the nature of a works contract executed by an undertaking. 36. We, therefore, notice that from the inception, deduction was envisaged for development of infrastructure facilities with private participation. Of course, post 2002, certain relaxations were granted and in addition to extending tax holiday period, requirement for claiming such deduction was split into developing or operating and maintaining or developing, operating and maintaining infrastructure facility. The Revenue could therefore, legitimately contend that no such deduction was envisaged for mere execution of works contract. If this was the position, in our understanding, what the explanation, did was to clarify a statutory provision which was at best possible of a confusion. If that be so, the explanation must be seen as one being in the n....
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....We have found that the petitioner had disclosed all the materials regarding its activities and there was no suppression of materials. In spite of such disclosure, the Assessing Officer gave benefit of the provision by considering the then Explanation which was substantially the same and thus, it could not be said that any income escaped assessment in accordance with the then law. We have already pointed out that the Assessing Officer has now given a second thought over the same materials and according to him, as the assessee is a contractor or supplier of irrigation products, it cannot be called a developer of any new infrastructural facility. 26. From the materials placed before him by the petitioner, the Assessing Officer earlier did not arrive at such conclusion and thus, the amended Explanation subsequently added cannot be of any help to him in arriving at the second opinion based on the alleged new law." The Court was thus of the opinion that introduction of the explanation in question did not amount to introduction of a new provision of law with retrospective operation. The assessee was, therefore, given the benefit of deduction considering the then explanation which wa....
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....h the then law. We have already pointed out that the Assessing Officer has now given a second thought over the same materials and according to him, as the assessee is a contractor or supplier of irrigation products, it cannot be called a developer of any new infrastructural facility." 14. This was challenged before the Apex Court. The Apex Court dismissed the Special Leave Petition, which is reported in 25 taxmann.com 301. 15. In the case of Agrawal J.V. (supra), in respect of the reassessment proceedings initiated on account of introduction of explanation, the Court held the same in favour of the assessee by holding that all necessary facts and material relating to the claim for deduction under section 80IA(4) of the Act were already available in the return of income and the same was considered duly by the Assessing Officer. There was nothing to demonstrate or reveal that there was any reason for the reopening assessment on the identical material only on account of any introduction of such provision. 16. In the present case, as could be noted from the material on record, the Assessing Officer on a detailed scrutiny had explained the claim made by the Assessing Officer und....