TaxTMI 
TaxTMI 
2016 (10) TMI 547
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....ith the audit report in form no.3CB attached with the return. In the context of said return, the Assessing Officer had issued notice under section 142(1) of the Act at the relevant point of time on 05.07.2005, asking about the nature of business, the details of the work executed by the petitioner and also sought particulars with respect to sale deed of the land in question, for which development project was undertaken. Under a communication dated 08.10.2005, the petitioner has supplied all information related to his engagement of business in construction of residential and commercial complexes, and he has also provided the agreement which took place with Abhijit Shahibaug Cooperative Society dated 02.10.1998 for construction of residential project on the land owned by the society. Alongwith that, the related particulars also appears to have been supplied. After examining these particulars which have been provided, it appears that the Assessing Officer has passed an assessment order dated 17.02.2006, giving effect of an amount of Rs. 1,83,17,435/as claimed under section 80IB(10) of the Act and to some extent, the deduction has not been granted. But, substantial deduction has been co....
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....to believe that due to illegitimate claim of deduction of Rs. 1,83,17,434/- made and allowed to the assessee u/s. 80IB(10) of the I. T. Act, the income chargeable to tax has escaped assessment within the meaning of section 147 of the I. T. Act." 3. After receipt of the reasons which have been supplied to the petitioner, the petitioner under a letter dated 21.12.2010 submitted objections and pointed out in detail all relevant facts pertaining to the development of construction work undertaken by the petitioner. However, the said objection came to be rejected by order dated 21.12.2010 and it is against this action of respondent authority, the petitioner has brought this petition by invoking jurisdiction under Article 226 of the Constitution. 4. Learned counsel Mr.M.J.Shah appearing for the petitioner has mainly submitted that this issue related to deduction under section 80IB(10) of the Act has been thoroughly gone through by the Assessing Officer at the relevant point of time and based upon full disclosure of material facts on the part of the petitioner, the scrutiny assessment has been finalized and therefore, since in the scrutiny assessment, the deduction is considered to a....
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....n final order on 17.02.2006 after considering the material on record, the deduction is made available to the petitioner to the extent of Rs. 1,83,17,435/- and therefore, the deduction issue has been at threadbare level examined by the Assessing Officer in scrutiny assessment. It is also emerging from the record that action which is sought to be initiated is beyond the period of four year and looking to the reasons which have been reflected from page 67 of the petition compilation, the only reason for reopening of assessment is an insertion of explanation to section 80IB(10) of the Act with retrospective effect from 01.04.2001 and reasons indicate that there is no element of any nondisclosure on the part of the petitioner. It is also appearing from the record that in response to the query which has been raised by the respondent authority, the petitioner has provided adequate material related to the development work which was undertaken by the petitioner and the petitioner has tried to justify his claim by furnishing necessary documents including the agreement, profit and loss account as well as audit report. The said material has also been examined in detail in past at the time when....
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....ue of retrospectivity of explanation given below section 80IB is also considered and in addition to that, it was considered that when the reopening was sought beyond a period of four years and there is no element of failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment. Its insertion will not have any effect on it and therefore, by giving anxious thought to the said issue, the Court has held that the extract of the said for substantiating this conclusion. "From the reasons recorded it is apparent the assessments are sought to be reopened on the ground that as per the explanation given below subsection (13) of section 80IA of the Act, which has been substituted by the Finance Act No.2 of 2009 with retrospective effect from 1.4.2000, deduction under section 80IA would not be admissible to an assessee who carries on business which is in the nature of works contract. That the petitioner assessee being a civil contractor working for the Government is not eligible for deduction under section 80IA as claimed by the assessee, hence there was reason to believe that income chargeable to tax has escaped assessment for the assessme....