2019 (3) TMI 335

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....sment year 2010-11. 2.The above appeal has been admitted, on 02.08.2018, on the following substantial questions of law:- "(i) Whether, on the facts and circumstances of the case, the Appellate Tribunal was right in law in reopening the assessment u/s 148 of the Income Tax Act, for the assessment year 2010-11 without any tangible materials on record? (ii) Whether, on the facts and circumstances of the case, the Appellate Tribunal was right in law in disallowing the benefit u/s 80-IB (10) of the Act on the condition that the Assessee had violated the provisions of clause (e) of Section 80-IB (10)?" 3.Two issues arise for consideration in this appeal. (i) The first issue is whether the assessment, which was completed under Section 143(....

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....erial, evidences and clarifications, the Assessing Officer completed the assessment. Thus, in the absence of any allegation that the assessee has filed to disclose fully and truly all materials for completion of the assessment and also in the absence of no fresh tangible material, reopening of the assessment is held to be bad in law. 6.The next aspect is whether at all the amended provision of Section 80-IB(10)(e) would apply to the assessment year in question, viz., 2010-11. This issue has been clarified by the Tribunal, vide Circular No.5/2010. This has been clarified by the Board in the Explanatory Notes to the Provisions of the Finance (No.2) Act, 2009, dated 02.06.2010. So far as the applicability of the amendment in paragraph 33.8 is....

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....eld that in order to avail the benefit in the assessment year after 01.04.2005, if the balconies have to be removed by the assessee, it will lead to absurd results, as one cannot expect the assessee to comply with a condition that it was not a part of the statutes when the housing project was approved. Thus, it was held that clause (d) is to be treated as inextricably linked with the approval and construction of the housing project and the assessee cannot be called upon to comply with the said condition either of the assessee or even the Legislature, when the housing project was accorded approval by the local authorities. Therefore, it held that the said amendment cannot be applied to those projects, which were sanctioned and commenced prio....