TaxTMI 
TaxTMI 
2017 (6) TMI 76
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.... appreciate that the reassessment was bad in law. 4. For that the Commissioner of Income Tax (Appeals) failed to appreciate that reopening was made based on a mere change of opinion. 5. For that the Commissioner of Income Tax (Appeals) erred in stating that the appellant is not eligible for the deduction u/s. 801B(10). 6. For that the Commissioner of Income Tax (Appeals) ought to have appreciated that the appellant has fulfilled all the basic requisite conditions u/s. 801B(10). 7. For that the .appellant is a developer eligible to claim deduction u/s.801B(10) and not a mere contractor. 8. For that the Commissioner of Income Tax (Appeals) having accepted that the appellant has complied with all other conditions except for completion of the project within the stipulated time period, which was due to reasons beyond the control of the appellant, ought to have allowed the claim of deduction u/s.8OIB(10) 3. As seen from the above, the first ground is with regard to reopening of assessment . 4. The facts of the Case are that the assessee-company is engaged in the business of construction and developing housing projéct and satellite....
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....ter making a disallowance of Rs. 2,59,97,129/- u/s 80-IB of the Act. Aggrieved, the assessee carried this appeal to the Ld.CIT(A). On appeal, the Ld.CIT(A) endorsed the view of the AO. Against this, the assessee is in appeal before us. 5. Regarding reopening, the ld.A.R submitted that the original assessment was completed u/s.143(3) of the Act on 30.12.2009 and there is no fresh material to reopen the assessment and the AO considered the same materials, which were already on record to reopen the assessment . As such, the reopening of assessment is bad in law. He relied on the following case laws:- 1. in the case of CIT V. Kelvinator of India Ltd. in (2010)320 ITR 561(SC) 2. in the case of CIT V. Kelvinator of India Ltd. in (2002) 256 ITR 01(Del)(FB) 3. in the case of CIT V. Orient Craft Ltd. in (2013) 354 ITR 5361(Del) 4. in the case of CIT V. Amitabh Bachchan. in (2012) 349 ITR 76(Bom) 6. On the other hand, ld.D.R relied on the order of lower authorities. 7. We have heard both the parties and perused the material on record including various case law cited by the parties. The main contention of ld.A.R is that in this case the origi....
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....ed by section 148(2) to record reasons in writing. The reassessment proceedings u/s 147 are further subject to sections 148,149,150,151,152 and 153. But in the present case, we are required to decide the limited issue regarding the validity of proceedings undertaken after four years of the assessment year in question. The Assessing Officer is required to see if the conditions laid in Explanation 2(c) are satisfied because in this case no assessment was completed u/s 143(3) of the Act. In case, (i) income chargeable to tax has been under assessed; or (ii) such income has been assessed at too low rate; or (iii) such income has been made the subjective of excess relief under this Act; or (iv)excessive loss or depreciation allowance or any other allowance under this Act has been computed, then the Assessing Officer would have valid cognizance u/s 147 of the Act. The reasons recorded by the Assessing Officer clearly speak for the under assessment of tax hence, the conditions laid above stand fulfilled in so far as reassessment proceedings are concerned. In so far as the reasons recorded, extracted in the earlier portion of this order, we are satisfied that the Assessing Officer has 'rea....
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....sing Officer would have ascertained this fact at the time of assessment, if any also, but in view of the explanation (1) it does not mean that there was no default on the part of the assessee. Hence, reopening u/s.147 is held to be valid. The assessee has tried to take shelter under the exception provided in that section. But as stated above, when the assessee has not disclosed fully and truly the facts necessary for the assessment and there is no assessment u/s.143(3) of the Act, this proviso will not come to its rescue. Consequently, we hold that the entire reassessment proceeding in this case is valid and therefore, the action of the Assessing Officer is upheld. 9. The next ground is with regard to disallowance u/s.80- IB(10) of the Act. 10. The facts of the case are that The assessee claimed deduction U/s.801B(10) of the IT Act. Housing site was converted into plots and sold to the customers by individual sale deeds. As per construction agreement between the assessee and the purchasers construction work was undertaken by the assessee, Construction work did not progress due to acquisition of land proposed by the Govt. in one of the projects. The construction is not complet....
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.... that the assessee had merely acted as an agent or a contractor for construction of residential houses. The Commissioner (Appeals) upheld the order of the Assessing Officer. On second appeal, the Tribunal was of the opinion that fr deduction under section 8O-IB(10) it is not necessary that the assessee must be the owner of the land. Second aspect of the Tribunal's judgment was that even otherwise looking to the provisions contained in section 2(47), read with section 53A of the Transfer of Property Act, by virtue of the development agreement and the agreement to sell, the assessee had, for the purpose of Income-tax, became the owner of the land. The Tribunal, accordingly, allowed the assessee's appeal directing the Assessing Officer to grant deduction under section 80-IB(10). 10.3 The controversy related to the housing project of the' appellant, namely, River View Phase-lI, Manapakkam, Chennai. The appellant entered into an agreement for sale of land in the year 2004-05 for 8.21 acres of land from three Vendors namely Sri. J. Venkatesh, Sm. A.R. Gomathi and Smt. V. Annalakshmi, represented by the Power of Attorney holder, Sri. M. Arumugain. The Vendors Power Agent Mr. M. Arumuga....